New Delhi: The Kashmir Valley is on edge again even as uncertainty prevails over the exact date the Supreme Court will take up a batch of petitions challenging the legitimacy of Article 35A in Jammu & Kashmir.
Article 35A is a constitutional provision that allows the J&K assembly to define “permanent residents” of the state, who are then eligible to certain rights and privileges, including employment in the J&K government, acquisition of immovable land or property, scholarships and other such aid and welfare from the government.
It flows from an over-90-year-old notification that was issued through a presidential order in 1954.
The provision bars non-residents from acquiring property in Jammu & Kashmir, and locals consider it sacred to the agreement under which the state acceded to India in 1947. It also revokes the inheritance rights of local women who marry outside the state, and these two factors form the heart of the protest against Article 35A.
The case has been in the Supreme Court since 2014, when a Delhi-based NGO called We The Citizens challenged its validity.
In August last year, the Supreme Court scheduled the hearing for January, after the Centre and the state administration cited law and order concerns during the local polls in November and December 2018 to seek a postponement.
It was scheduled to be taken up in the second week of January, but is yet to be heard. However, the matter of the legal validity of Article 35A, an emotive issue in Jammu & Kashmir, is expected to be taken up any day now.
Ahead of the hearing, there’s been tension in Kashmir, with reports of panic purchases of fuel and food supplies.
On Saturday, the government launched a massive crackdown on separatists and detained over 150 people, mainly from the Jamaat-e-Islami Jammu and Kashmir. The Jamaat-e-Islami Jammu and Kashmir has in the past been touted as the parent political party of the Hizbul Mujahideen, but the organisation has always maintained that it is a socio-religious group.
The Jamaat termed the raids “fishy” at a time when the Supreme Court is to hear a petition regarding Article 35A.
Meanwhile, the Joint Resistance Leadership (JRL), an umbrella coalition of separatist groups, called for a shutdown in the Valley Sunday, PTI reported, “to protest these arbitrary mass arrests… and any tampering with Article 35A”.
Since the matter was first filed in 2014, it has been heard only 13 times.
On 17 July 2017, the Centre – responding for the first time – submitted that it had taken a “conscious decision” not to file any counter affidavit in this case, because the issues raised were “pure questions of law”.
Representing the Centre, Attorney General K.K. Venugopal had requested the matter to be heard by a five-judge Constitution bench.
Venugopal informed a bench comprising Justices J.S. Khehar and D.Y. Chandrachud that the Centre did not wish to say anything on this subject since it is “very sensitive” and requires a “larger debate”.
However, the top court then posted the matter for final disposal before a full bench comprising three judges.
Dismiss the matter, the state says
The matter is yet to be heard at length in court since the Centre and the state have repeatedly sought to delay the hearing on various pretexts.
The same month the Centre and the state sought a postponement, in August 2018, J&K filed a reply seeking dismissal of the plea, saying that the matter need not be heard since the issue had already been settled in two apex court judgments.
“…Since Article 370, as enacted and amended remained in the Constitution of India, as an integral part thereof and since the Presidential Order of 1954 i.e. Constitution (Application to Jammu and Kashmir) Order, 1954, has been recognised and acted on, as valid, ever since its promulgation and when challenged, the challenge has stood rejected by the two Constitution benches of this Hon’ble court,” the state had said.
Representing the state, eminent jurist Fali Nariman defended Article 35A, saying that after six decades, the provision had become a permanent feature of the Constitution.
“The instant petition seeks to upset settled law, accepted and complied with by all,” the state argued.
Just earlier this month, J&K had filed a plea seeking to adjourn the “sensitive” matter since there is no elected government in the state and it is currently under President’s rule.
The state has been under President’s rule since the Peoples Democratic Party-Bharatiya Janata Party government collapsed in June.
The challenges to Article 35A
In its plea, We The Citizens has contended that J&K is using Article 35A to discriminate against non-residents of the state, and says the provision is unconstitutional and violates fundamental rights.
The petition also says that a new article in the Constitution cannot be simply backed by a presidential order, as done in 1954, adding that only Parliament can amend the Constitution.
There are at least five other pleas tagged with this matter that have also similarly challenged the constitutionality of 35A.
Another petitioner, Dr Charu Wali Khanna, a Kashmiri advocate who married a non-Kashmiri and settled outside the state, contends that Article 35A violates her inheritance rights.