Jammu & Kashmir – Challenge to Article 35A: “It has to go before a 5-judge Bench”, Dipak Misra J.
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Jammu & Kashmir – Challenge to Article 35A: “It has to go before a 5-judge Bench”, Dipak Misra J.

Murali Krishnan

The Supreme Court today remarked that the challenge to Article 35A should ideally be heard by a 5-judge Constitution Bench.

The remark was made by Justice Dipak Misra in a petition contending that Article 35A of the Constitution read with Section 6 of the Constitution of Jammu & Kashmir, related to inheritance of properties by non-permanent residents, violates the fundamental right to equality guaranteed under Article 14.

Dr. Charu Wali Khanna, the petitioner is a Kashmiri Pandit woman who had married outside her caste and settled outside the State of Jammu & Kashmir.

She has challenged the notification dated April 20, 1927 issued by Maharaja Bahadur of Kashmir, which takes away the right of a wife or widow otherwise available to them as state subject unless she resides in the state and does not leave the state for permanent residence.

The same was given Constitutional sanction by Article 35A of the Constitution of India read with Section 6 of the Constitution of Jammu & Kashmir. It is the petitioner’s case that two provisions are violative of Articles 14, 15 and 16 of the Constitution of India.

Since, the apex court is already seized of a matter challenging Article 35A, Additonal Solicitor General PS Narasimha requested the Court to tag the instant case with the earlier matter.

The Court acceded to the request by the ASG. The matter will now come up after 6 weeks.

The Article, which was added to the Constitution by a Presidential Order in 1954, accords special rights and privileges to the natives of J&K, and empowers its legislature to frame any law without attracting a challenge on grounds of violating the right to equality of people from other states or any other right under the Indian Constitution.

The Supreme Court had earlier issued notice in the petition challenging the provision.

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