3-judge bench will decide whether to refer pleas against Article 35A to Constitution bench: SC

NEW DELHI: The Supreme Court on Monday made it clear that it would first decide whether the pleas challenging Article 35A, which gives special rights to the residents of Jammu and Kashmir be referred to a five-judge constitutional bench for examining the larger issue.

A bench of Chief Justice Dipak Misra and Justice A M Khanwilkar adjourned the hearing on five petitions to the week commencing from August 27 on the grounds that they pertained to the challenge to a Constitutional scheme and could not be heard as the third judge, Justice D Y Chandrachud, was not present on Monday.

During the hearing, the state government sought the adjournment of the hearing citing upcoming local body elections in the state which was supported by the Centre as well. "Once you have challenged the constitutional validity of Article 35-A, a three-judge bench would decide whether they have to go before a Constitution bench," the CJI said.

When Additional Solicitor General Tushar Mehta explained to the bench that the valley has called a bandh today in the wake of the hearing, CJI observed, "This (challenge) comes after 60 years. We will only see if this provision goes against the basic structure of the Constitution." The bench made it clear that under Article 145 (special provisions as to the disposal of questions relating to constitutional validity of laws) of the Constitution, any challenge to the validity of a constitutional provision needed to be adjudicated upon by a larger bench.

Article 35-A, which was incorporated in the Constitution by a 1954 Presidential Order, accords special rights and privileges to the citizens of Jammu and Kashmir and bars people from outside the state from acquiring any immovable property in the state. It also denies property rights to a woman who marries a person from outside the state.

The provision, which leads to such women from the state forfeiting their rights over property, also applies to their heirs. The petitioners, opposed to the Article 35A, including NGO 'We the Citizens' opposed the adjournment plea of the state government. The court's observation that the state has a minimal role in the judicial scrutiny of Article 35A, drew sharp observation from the counsel for the state government and others like National Conference and CPI(M). Political parties, including the National Conference and the CPI-M, have moved the Supreme Court in support of Article 35-A that empowers the state assembly to define permanent residents for bestowing special rights and privileges to them. Ends.