SC defers hearing on Article 35A

J&K special status: Defer pleas challenging Article 35A, Centre to Supreme Court

Article 35A of the Constitution, which avers special rights to the state as far as permanent residency and landholding in the state is concerned, seems to have come in the way of educational benefits that accrues through special entrance exam for higher education, such as NEET.

The Centre and the J&K government on Monday advocated a cautious approach to dissuade the Supreme Court from passing any interim order on petitions challenging provisions of the Indian and Jammu & Kashmir Constitutions which "discriminated" against Indians vis-a-vis state subjects.

Attorney-general K.K. Venugopal appearing for the Centre told a three-judge bench of Chief Justice Dipak Misra and Justices A.M. Kanwilkar and D.Y. Chandrachud that any order passed by the court at this stage would have repercussions.

Dineshwar Sharma, former director of the Intelligence Bureau (IB), was appointed the Centre's interlocutor for J& K on October 23 previous year.

"Your lordships have seen what is happening in Kashmir". The interlocutor is in the process of discussing it... "I don't think it needs to be heard now", the A-G told the bench, seeking more time. However, the bench asked the parties to complete pleading in the petition and posted the matter for final hearing on August 6.

The main petition was filed by a Delhi-based NGO "We the Citizens" in 2014.

Four petitions have been filed, demanding scrapping of Article 35A in Jammu and Kashmir.

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Senior advocate Shekhar Naphade, also representing the state, said that since 1927, the position in this regard was clear and it can not be decided like this.

"It is also a sensitive issue, but it is also the matter of life of people who have been forced to leave", the counsel said.

Petitioner said Article 35A was a violation of the fundamental right of equality under Article 14.

It challenges that Article 35A is against the "very spirit of oneness of India" as it creates a "class within a class of Indian citizens".

Article 35A also empowers the state's legislature to frame any law without attracting a challenge on the ground of violating the right to equality of people from other states or any other right under the Indian constitution.

In the case, the high court had, by a majority view, held that a daughter of a permanent resident of Jammu and Kashmir marrying a non-permanent resident will not lose the status of a permanent resident.

Parliament was not consulted when the President incorporated Article 35A into the Indian Constitution through a Presidential Order issued under Article 370.

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