Centre is likely to take a divergent opinion from that of the Jammu and Kashmir government on Article 35(A), on the grounds that it discriminates against women who marry outside the State from applying for jobs or buying property, which is in violation of Article 14 of the Constitution, The Hindu has learnt.
Article 14 says the “State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”
Potential for unrest
A senior government official, requesting anonymity, said there were apprehensions that any adverse order against the provision, could give the separatists a chance to stoke violence in the Valley.
The Supreme Court is hearing a Public Interest Litigation (PIL) petition challenging the constitutional validity of Article 35(A), which prohibits a non-J&K resident from buying property in the State and ensures job reservation for J&K residents.
A 2002 order by the J&K High Court in the State of Jammu and Kashmir Versus Dr Sushila Sawhney and Others had said the daughter of a permanent resident marrying a person outside the State would not lose the status of permanent resident of J&K.
The official explained that Article 35(A) is a provision, which has been inserted in the Constitution through a “presidential order” and not ratified by the Parliament. There is an option with the Centre to ratify the provision by sending it to Parliament, the official said. He however, added that it has not been considered yet.
Consultations between Ministries
Home Ministry has held a series of consultations with the Law Ministry on the provision.
Coming together on the issue, political rivals J&K Chief Minister Mehbooba Mufti and former chief minister and National Conference leader Omar Abdullah, have vehemently objected to any tinkering with Article 35A. Ms Mufti has held multiple meetings with Prime Minister Narendra Modi and Home Minister Rajnath Singh and claims to have got an assurance that “status quo” will be maintained.
Attorney General (AG) K.K. Venugopal informed the Supreme Court on July 17 that the issue being discussed in the apex court was a matter of interpretation of law for which “no affidavit was required.” The State government had filed a counter affidavit against the petition.
Centre also told the Supreme Court that it wanted a “larger debate” on the subject.
Ms Mufti had said earlier that “any attempts to tinker with Article 35(A) would have repercussions and India will not get a shoulder to carry its national flag in J&K.”
The official said it was for the Supreme Court to decide whether the issue is to be treated as a “procedural issue” as per the PIL or a “substantive issue.”
