Published: Wed, May 16, 2018
People | By Leon Thompson

SC defers hearing on Article 35A

"That [reference of the petitions to a Constitution Bench] we will see. yes, we will examine", Chief Justice Dipak Misra responded to the pleas for a Constitution Bench to take over the issue on Monday.

In October previous year also, SC had deferred the hearing for three months after Center told the apex court that it had appointed an interlocutor for holding talks with various stakeholders in Jammu and Kashmir and requested it to adjourn the hearing over the politically contentious issue, claiming the court hearing may affect the dialogue process.

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

The Supreme Court is hearing a clutch of pleas challenging constitutionality of the Article 35A, including one by a Delhi-based NGO, "We The Citizens".

Under Article 35A, the legal heirs of Kashmiri women who marry men from other states are denied the right to acquire property in the state, but no such restriction applies to the heirs of Kashmiri men who marry non-Kashmiris.

The petitions challenging the validity of the Article 35-A of the Indian Constitution, which gives special rights to permanent residents of JK, will be heard on August 16, the Supreme Court of India has said.

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

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While Jammu and Kashmir's Non-Permanent Resident Certificate holders can vote in Lok Sabha elections, they are barred from voting in local elections in the state.

However, Dwivedi told the court that since the issue required interpretation of the constitutional provision, no interim order should be passed in the matter.

The apex court had on August 14 a year ago said a constitution bench may examine whether Article 35A was gender-biased and violative of the basic structure of the Constitution.

Parliament was not consulted when the President incorporated Article 35A into the Indian Constitution through a Presidential Order issued under Article 370. It empowers the state legislature to frame any law without attracting a challenge on the grounds of violation of the Right to Equality of people from other states or any other right under the Constitution.

It says that more than 4,000 second, third and fourth-generation migrants from Punjab who were born in Jammu and Kashmir and have been living there permanently are not allowed to buy immovable property in the state.

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".

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