Fresh petition in SC against Article 35A

A fresh petition has reached the Supreme Court against Article 35A of the Constitution that gives special rights and privileges to permanent residents of Jammu and Kashmir. Added to the Constitution through a Presidential Order in 1954, Article 35A gives special rights and privileges to permanent residents of J&K and debars the rest of Indians from acquiring immovable property, obtaining state government jobs and settling in the state.

Petitioners Radhika Gill, Eklavya and Vijay Kumar — residents of Valmiki Colony, Gandhi Nagar in Jammu — challenged the validity of the Constitution (application to J&K) Order 1954 on the ground that it violated their right to life, right to equality, right to non-discrimination, right to equality of opportunity in public employment and right to reside and settle in any part of the territory of India.The petition came up for hearing before a Bench headed by Chief Justice of India Dipak Misra which said the matter involved interpretation of constitutional provisions and should be clubbed with other petitions on the issue. However, it posted it for hearing on May 14 after senior counsel Ranjit Kumar pointed out that the petitioners needed some interim relief.Article 35 A

The Bench also issued directions to the petitioners to serve a copy of the petition to the Centre and state government.The petitioners submitted that the petition had been filed on behalf of more than 4,000 persons belonging to the second, third and fourth generation of 272 safai karmcharies (sweepers) who moved from Gurdaspur and Amritsar and settled in Jammu way back in 1957 on the request of the Jammu and Kashmir Government to work as sweepers to replace the sweepers of the Municipal Corporation of Jammu who had gone on an indefinite strike.

The petitioners said they were the descendents of few persons amongst the 272 safai karmcharies and were born in J&K and had been residing in the state since their birth.

Despite having been born and brought up in J&K, they had been denied the right to seek admission in the state-funded medical/engineering/B.Ed. colleges, right to employment in the state government, right to acquire property and right to vote on the ground that they were not permanent residents of the state, the petitioners submitted. These denials rendered their lives meaningless and went against the basic constitutional guarantees, they added.

Earlier, the top court on October 30 deferred hearing on petitions challenging the validity of Article 35A in view of negotiations initiated by the Centre with various stakeholders in the state. Petitioner Charu Wali Khanna had alleged that it also discriminated against women.
                         Read also: What is Article 35A and why is it making news
Attorney general KK Venogopal told the court that the government had appointed Dineshwar Sharma as an interlocutor and requested it to adjourn the matter for six months.The petitioners had demanded that the issue of Article 35A should be referred to a Constitution Bench.

Amid growing political unease in J&K over the alleged attempts to do away with Article 35A, the top court had on August 14, 2017, hinted at sending petitions challenging the controversial provision to a Constitution Bench for a definitive finding on its validity.

Interestingly, the Centre had been shying away from filing its response to spell out its stand on Article 35A. The Attorney General had last year told the court that the government didn’t want to file its affidavit in response to the petition filed by Delhi-based NGO ‘We the citizens’, which challenged the constitutional validity of Article 35A on the ground that the President could not have amended the Constitution by an Order in 1954 and it was to be a temporary provision.

(Originally published in Tribune India)