Kashmiri Pandit continues fight against Article 35A at SC
Supreme Court advocate Charu Wali Khanna, a Kashmiri Pandit, has questioned why she has no right to property in Jammu and Kashmir just because she had married outside the state and settled in Delhi.
The question comes as part of the ongoing challenge to the validity of the Constitution's Article 35A, on the ground of gender discrimination, which grants special status to Jammu and Kashmir currently being heard at India's apex court.
Article 35A allows the Jammu and Kashmir legislature to define the list of 'permanent residents' of the state, who are eligible to vote, work for the state government, own land, secure, public employment and college admissions.
Petitioner Charu Wali Khanna, a Supreme Court lawyer and a native of Kashmir has raised the issue of Article 14 and 35A being in contradiction
Non-permanent residents are denied all these rights. It was added to the Constitution by a Presidential Order in 1954.
Critics have panned the manner of its enactment, without any discussion in Parliament.
Khanna wanted to buy land to build a house but the PDP-BJP government refused her permission citing this particular section of the Constitution.
'Farooq Abdullah and his son Omar (National Conference leaders) are married to non-Kashmiris. The father and son not only do not lose permanent resident status, but their wives get a right to property too, Jad told a bench headed by Justice Dipak Misra.
'At the same time, Sarah Abdullah, the daughter of Farooq Abdullah, who is married to Sachin Pilot (Congress leader) loses her permanent resident status and right to property too.
'This is where the gender inequality, a clear violation of right to equality lies. Likewise my client, who married outside the state, loses the citizenship and also property rights. She is unable to build a house in her birth state.'
Kashmir's main opposition leader, National Conference (NC) president (left) Farooq Abdullah arrives with his son and former chief minister of Jammu and Kashmir Omar Abdullah
But the lawyer appearing for the Jammu and Kashmir government said a full bench of the high court had in a 2002 case, State of Jammu and Kashmir vs Susheela Sawhney, settled the matter and held that the daughter of a permanent resident marrying a non-permanent citizen would not lose property rights.
However, the judges felt that the issue, which involves questioning the validity of an article in the Constitution, required hearing by a five-judge constitution bench.
The bench then tagged the petition with a similar plea challenging the legitimacy of Article 35A in which attorney general KK Venugopal has been asked to represent the Centre and fixed it for hearing on a later date.
Khanna said, 'Article 14 of Constitution gives a fundamental right to equality before law.
'But 35A is heavily loaded in favour of males because even after marriage to women from outside they will not lose the right of being permanent residents. A woman from outside the state shall become a permanent resident on marrying a male permanent resident of the state, but a daughter who is born state subject will lose the right on marrying an outsider.'
The hearing comes four weeks after the Narendra Modi government told SC during the hearing of another petition challenging the article, that it wanted a 'larger debate' on the issue.
The BJP in its election manifesto had promised to scrap or at least dilute the special status to the state given under Article 35A.
The ruling party's ideological mentor, the RSS, also favours abolition of the special status to change the state's demographics.
A petition in this regard filed by RSS-backed think tank Jammu & Kashmir Study Centre is already pending in the SC.
The Sangh has termed the article a recipe to several conflicts. The threat of abrogation of Article 35A is also leading to unprecedented political developments in the Valley.
For the first time in years, all major political parties in Kashmir, including the ruling Peoples Democratic Party and the opposition National Conference, independent MLAs and even the Hurriyat have come together on an issue.
Even before an opposition leader could rake up the matter, it was the chief minister of the state and the face of PDP-BJP alliance, Mehbooba Mufti, who spoke out against the abrogation of Article 35A in a very aggressive tone.