Article 35A: Center tells SC that Interlocutor discussing JK's 'special rights'

The Centre's interlocutor has had a series of talks with the stakeholders and should be given more time.

The three-judge Bench posted the case for August 6 to hear arguments.

The top court was hearing a batch of pleas challenging Article 35A in addition to the main writ petition filed by a group called "We The Citizens".

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.

Article 35A of the Constitution gives the State Legislature carte blanche to decide who all are the "permanent residents" of the State and grant them special rights and privileges in public sector jobs, acquisition of property within the State, scholarships and other public aid and welfare programmes.

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.

"One of the lawyers claimed that someone from Pakistan can stay in Kashmir, but someone who has been here is hit by Article 35A", senior advocate Ranjit Kumar, for one of the petitioners, submitted.

Senior advocate Ranjit Kumar, appearing for one of the petitioners, said it was unusual that in J and K, a person who had migrated to Pakistan before 1947, could come and settle down under law but those who were residing there for generations cannot get a government job.

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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.

"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.

Article 35A empowers the J&K legislature to define permanent residents of the state.

He said that article 35A, read with section 6 of the Jammu and Kashmir constitution, creates a problem and hence the matter should be referred to a constitutional bench as it is a pure question of law.

The NGO challenged the provision on the ground that it could only have been introduced through a Constitutional amendment under Article 368 and not through a Presidential Order under Article 370.

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

The state government had earlier said that the issue has already been "prima facie settled" by a full bench of the High Court in its verdict in 2002.

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