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Article 35A comes in the way of J&K non-permanent residents appearing…

16 May 2018

Attorney-general K.K. Venugopal appearing for the Centre told a three-judge bench of Chief Justice Dipak Misra and Justices A.M. Kanwilkar and D.Y. Chandrachud that any order passed by the court at this stage would have repercussions.

The petitioners have said that the Article 35A went against the fundamental right of equality under Article 14 of the Constitution.

Petitions against Article 35A have been dismissed thrice by the Supreme Court: in 1956, 1961 and 1970.

"Your lordships have seen what is happening in Kashmir".

At this senior counsel Rakesh Dwivedi said that the bench should at least hear the details of the petition before deciding on a bench. As long as they are valid, the petitioners can not get any interim relief. "The interlocutor is in the process of discussing it", the AG told the bench, which posted the matter for hearing on August 6.

Under Article 35A, only permanent residents of Jammu and Kashmir can buy immovable property (such as land) there and secure state government, PSU or local body jobs, and government scholarships, student aid or seats in state-funded technical institutions.

Another counsel appearing for the petitioners said it was a "human issue" as around five lakh people had migrated out of the state, were residing in places like Delhi and can not go back to the valley.

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.

The apex court had on August 14 previous year said a constitution bench may examine whether Article 35A was gender-biased and violative of the basic structure of the Constitution. As per article 35A of the constitution wherein you can apply for higher education in J&K only if you are a permanent resident of the state.

The Supreme Court will examine fervent pleas for a five-judge Constitution Bench to decide whether special status granted to Jammu and Kashmir is unconstitutional.

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".

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.

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.