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Right before August 27, the day that has been scheduled by a three – judge bench headed by Justice Dipak Misra for considering whether the challenge to the validity of Article 35 A be referred to a Constitution Bench, advocate and BJP leader has additionally prayed for striking down of the provision as a whole. Looking at the history of Article 35 A, it must be mentioned here that the Article was inserted to grant a special status to the State of Jammu and Kashmir. The incorporation of it was advised by the Jawaharlal Nehru Cabinet and the same was given effect to vide an order passed by Dr. Rajendra Prasad, the then President. The article confers freedom to the State legislature in the sphere of determining the permanent citizens and also their rights regarding acquisition of property, public sector jobs, scholarships and welfare program.
As has been put forth in the petition, the article violates the fundamental rights at various levels. These rights are engraved in Articles 14 15 16 19 and 21 of the Constitution. The non residents in Kashmir are not permitted to get a government job or buying properties owing to their Non Resident Status. The restricted in owning properties comes as a major threat to the industrial and private sectors. Such a discrimination, fostered by article 35 sees a departure of skilled professionals from the state, including doctors and teachers. There is a denial of admission to students of other states,, in schools and universities of Kashmir. One the most regressive parts of the Article is the restriction that is imposed on women. It lays does that any heir of a woman shall not have a right to her property if she marries a man not possessing the Permanent Resident Certificate. Further the uncouth treatment to the Schedule Tribes and Schedule Castes are important to note here. They mainly include Dakota and Valmikis, who were granted the PRC status on the pledge of continuing as Safai Karmacharis for future generations. Also, the West Pakistani refugees are non permanent residents and thus cannot enjoy any of the privileges as the permanent residents.
The petitioners contend that article 35A was inserted without resorting to the due procedure that is to be followed whole amending the Constitution under article 368. It was incorporated by an order of the President and not presented before the Parliament. There were two petitions challenge going the validity of this article, namely by the NGO - 'We, the Citizens', and Charu Wali Khanna. It was then, that the Chief Justice deemed it as a question that requires no further arguments given the was to declare the Article 35A as Unconstitutional and a clear abrogation of the Constitution.
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