National Conference president Sunday has denounced the Additional Solicitor General of India (ASG) for saying in the Supreme Court that “there is an aspect of gender discrimination” in Article 35A of the Constitution. The Lok Sabha member from Srinagar was reacting to the stand taken by the ASG Tushar Mehta in the apex court last Friday.
During the hearing, the ASG had agreed to the contention that Article 35A and certain aspects needed to be debated and said, “It can’t be denied that there is an aspect of gender discrimination in it (Article 35A).”
“Such a statement, if made before the SC on behalf of the Jammu and Kashmir government indicates that instead of defending Article 35A and asking for the challenge to be dismissed based on on the earlier Constitution bench judgment, the state government has virtually conceded before the SC that some parts of Article 35A deserves to be struck down,” Abdullah said in a statement.
He also expressed concern that the Advocate General of Jammu and Kashmir has been virtually sidelined and made to take a back seat in such a sensitive litigation concerning the unique legal history and constitutional status of the state of Jammu and Kashmir under Section 42 of the Constitution of Jammu and Kashmir.
“The advocate general is appointed for the state and is obligated to represent and defend the interests of the people of the state. He is the constitutional authority and a guardian of the interests of the people of Jammu and Kashmir before all courts,” Abdullah said.
He asked the government of Jammu and Kashmir to take immediate steps to ensure that the state does not facilitate the striking down of Article 35A by its subtle support and admissions made before the Supreme Court.
Last Friday, the Supreme Court deferred till January next year the crucial hearing on pleas challenging the constitutional validity of Article 35A, which provides special rights and privileges to the natives of Jammu and Kashmir, after the Centre and the state said that polls to local bodies there would go on till December.
A bench headed by Chief Justice of India Dipak Misra was told by Attorney General KK Venugopal and the ASG, representing the Centre and the Jammu and Kashmir government, respectively, that the issue of Article 35A was “very sensitive” and keeping in mind the law and order aspect, the hearing be held in January or March, 2019.
Article 35A, which was incorporated in the Constitution by a 1954 Presidential Order, accords special rights and privileges to the citizens of Jammu and Kashmir and bars people from outside the state from acquiring any immovable property in the state. It denies property rights to a woman who marries a person from outside the state. The provision, which leads to such women from the state forfeiting their right over property, also applies to their heirs.
During the hearing, a lawyer gave an illustration and said if a native woman of the state married an outsider, she loses several rights, including property rights, in the state, but if a man marries a Pakistani women, he and his spouse both get all the rights.
The ASG, however, agreed to the contention that Article 35A and certain aspects needed to be debated and said, “It can’t be denied that there is an aspect of gender discrimination in it (Article 35A).”
On 6 August, the Supreme Court had said a three-judge bench would decide whether the pleas challenging Article 35A should be referred to a five-judge constitution bench to examine the larger issue of alleged violation of the doctrine of basic structure of the Constitution.
Several petitions, including by political parties like the National Conference and the CPM, have also moved the Supreme Court in support of Article 35A, which empowers the state Assembly to define “permanent residents” to bestow special rights and privileges to them.
An NGO, ‘Ikkjut Jammu’, has also filed a plea seeking quashing of the provision. It has said that Article 35A furthers the “two-nation theory, which is against the theory of secularism”.
The state government, while defending the article, had cited two verdicts of the constitution benches of the Supreme Court in 1961 and 1969, which had upheld the powers of the president under Article 370(1)(d) of the Constitution to pass constitutional orders.
