Supreme Court issues notice in a fresh Challenge to Article 35A by Kashmiri Woman

The Supreme Court yesterday issued notice to the Jammu & Kashmir government and Union of India in a petition contending that Article 35A of the Constitution read with Section 6 of the Constitution of Jammu & Kashmir, in the matter of inheritance of properties by non-permanent residents, violates the fundamental right to equality guaranteed under Article 14..Dr. Charu Wali Khann, the petitioner is a Kashmiri Pandit woman who had married outside caste and settled outside the State of Jammu & Kashmir..She has challenged the notification dated April 20, 1927 issued by the 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 State and does not leave the state for permanent residence outside the State..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..“That in the year 1954 Article 35A of the Constitution of India was illegally inserted amending the Constitution of India vide Presidential Order; and read with Section 6 of the Constitution of Jammu and Kashmir in addition to being ultra vires of the Constitution of India, is violative of the right to equality and discriminatory provisions depriving the Petitioners who is not a Permanent Resident of Jammu and Kashmir (Permanent Resident Certificate of Jammu and Kashmir ) to own property in Jammu and Kashmir, or obtain job with Jammu and Kashmir Government, join any professional college run by government of Jammu and Kashmir or get any form of Government aid out of Government funds. In addition depriving the petitioners right to adult suffrage and membership of the Legislature.”.Regarding the restrictions placed by Section 6 on the right of a woman to marry a man of her choice, she submits,.“Section 6 of the Jammu and Kashmir Constitution restricts the basic right of women to ‘marry a man of their choice’ by not giving the heirs any right to property if the woman marries a man not holding Permanent Resident Certificate. Her children are denied a Permanent Resident Certificate thereby considering them illegitimate – not given any right to such a woman’s property even if she is a permanent Resident of state of Jammu and Kashmir.”.The petitioner has contended that though she has Kashmiri ancestry, Kashmir is the only place in India where she cannot get a government job or buy property..“The petitioners ironically can work and buy property anywhere in India, infact the world, except the State of Jammu and Kashmir to which her ancestors belonged to. .Such discriminatory practices undermine a Kashmiri Pandit women’s identity causing severe mental harassment to the petitioners and the fundamental rights of the petitioners has been violated by the respondents namely, the Right to equality (Art. 14); Prohibition of discrimination on grounds of place of birth (Art. 15) and Equality of opportunity in matters of public employment (Art.16).”.She contends that Section 6 of the Jammu and Kashmir Constitution, which gives sanction to such prohibition, is not only violative of her right to equality but also does not accommodate emerging multicultural realities and aspirations..The apex court is already seized of a matter challenging Article 35A. 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 right to equality of people from other states or any other right under the Indian Constitution..With the Supreme Court directing the Union of India to seek directions, the case has been listed to be heard on August 14.