The pleas against Article 35A will not come up for hearing on Tuesday as they did not figure in the final cause-list of the Supreme Court, a source said on Monday.
“The matter was listed in the advance list from February 26 to 28. But it did not figure in the final list of February 26 which came out on Saturday evening,” the source said.
“Whether it will come up for hearing on February 27 will become clear only on February 26 when the final list will come out. Similarly, if it will be listed for hearing on February 28, the same will become clear one day earlier when the final list will come out,” the source said.
Article 35A empowers the J&K legislature to define permanent residents of the state and grant special rights and privileges to them. It was added to the Constitution by a 1954 presidential order, according special rights and privileges to the permanent residents of Jammu and Kashmir and denying property rights, jobs, voting rights and scholarships to non-state subjects.
Meanwhile, the Supreme Court is scheduled to hear a batch of pleas challenging the constitutional validity of Article 35A, which provides special rights and privileges to natives of the state of Jammu and Kashmir, this week.
The crucial hearing, which could be listed from February 26 to February 28, assumes significance in view of the toughening stand of the state-based political parties on the sensitive issue.
The Supreme Court website, in its weekly list, has listed as many as six petitions including the lead plea of NGO ‘We The Citizens’ for hearing during the week.
The state administration recently requested the top court to adjourn the hearing on the pleas on various grounds, including that there was no “elected government” in the state.
“The present matter involves a sensitive issue regarding a challenge to Article 35A of the Constitution of India. A short reply has been filed by the state of Jammu and Kashmir in the lead matter ‘We the Citizens’ and notices have not been issued on the other petitions. It will, therefore, be requesting that the matter may kindly be heard when an elected government is in place,” the state administration has said in its letter.
The apex court had deferred till January this year the hearing on the pleas after the Centre and the state said local bodies polls there would go on till December.
The Centre and the Jammu and Kashmir administration had said 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.
“Let these matters be listed in the second week of January 2019. All interlocutory applications shall be taken up along with the main matter,” the bench had said then.
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. The bench is hearing several petitions including the one filed by NGO ‘We the Citizens’ through lawyer Barun Kumar Sinha.
On August 6 last year, the apex court had said a three-judge bench would decide whether the pleas challenging Article 35A should be referred to a five-judge constitution bench for examining the larger issue of alleged violation of the doctrine of basic structure of the Constitution.
Several applications, including by political parties such as the National Conference and the CPI-M, were also filed in the Supreme Court in support of Article 35A, which also empowers the state assembly to define “permanent residents” to bestow special rights and privileges to them.
Besides the NGO, the other petitioners on the matter are: West Pakistan Refugees Action Committee Cell 1947, DrCharuWali Khanna, Kali Dass, Radhika Gill and Major Ramesh Upadhyay.
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.