Challenge to Article 35A: SC to decide on reference to Constitution Bench

Challenge to Article 35A: SC to decide on reference to Constitution Bench

Murali Krishnan

A three-judge Bench of the Supreme Court will hear preliminary arguments on whether the challenge to Article 35A should be referred to a Constitution Bench.

A Bench of Chief Justice of India Dipak Misra and Justices AM Khanwilkar adjourned the batch of five cases today, after the State of Jammu & Kashmir circulated a letter praying that the matter be adjourned on account of Panchayat and Municipal elections in the state.

Justice DY Chandrachud was not sitting today. Since the matter was being heard by a three-judge Bench all this while, and involved the issue of reference to a Constitution Bench, the Court said that it will list the matter before the three-judge Bench during the last week of August.

During the hearing, CJI Misra also remarked that the challenge to the controversial Article 35A has been mounted in 2014, sixty years after it was inserted.

The three-judge Bench will now hear preliminary arguments on whether the matter should be referred to a Constitution Bench.

Article 35A, 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.

One of the petitioners – Dr Charu Wali Khan –  had challenged the notification dated April 20, 1927 issued by the Maharaja Bahadur of Kashmir, which takes away the right of a wife or a widow otherwise available to them as a state subject unless she resides in State and does not leave the state.

This notification 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 the two provisions are violative of Articles 14, 15 and 16 of the Constitution.

The Supreme Court had issued notice in the petition in July last year. Another challenge to Article 35A was filed by NGO ‘We the Citizens’. The Court had referred that matter to a three-judge bench on July 17, 2017.

When the three-judge Bench heard the batch of matters in August last year, CJI Misra had opined that the matter ought to be heard by a Constitution Bench.

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