Samanwaya Rautray

Test Later Says Article wasn’t inserted yesterday, will be tested on basic structure doctrine. The Supreme Court deferred to the last week of August hearing on Article 35A, which confers specials rights and privileges on the people of Jammu and Kashmir, citing absence of one of the three judges on the bench.

“This wasn’t introduced into the Constitution yesterday. It has been there for over 46 years,” Chief Justice Dipak Misra said on Monday, posting the case for hearing in the week beginning August 27.

“We will examine whether the Article goes against the basic structure (of the Constitution),” said the CJI, sitting alongside Justice AM Khanwilkar. He also said that the three-member bench, which includes Justice DY Chandrachud, would consider whether the matter should be referred to a larger bench.

Article 35A, which bars outsiders from settling in or buying immovable property in the state, was inserted in the Constitution by a presidential order of 1954. Kashmir has seen protests from people who fear being overwhelmed by migration into the state from the rest of India should the article go.

Kashmiris are also wary of any attempt to do away with Article 370, which grants the state special status. A legal challenge against Article 370 is also pending before the court. A third petition, filed by Charu Wali Khanna, a resident of the Valley, has challenged a provision which doesn’t allow Kashmiri women married to non-Kashmiris or their children to either inherit property or vote in the state. That is yet to be heard by the apex court, although the high court had ruled in 2002 that a permanent resident of the state would not lose her status should she marry a non-Kashmiri.

At the hearing on Monday, the Attorney General urged the court to defer hearing of the petitions citing the panchayat polls due next month.

The National Conference, through senior advocate Jaideep Gupta, argued that hearing in the case should be deferred till a popular government was in place in the state, which is currently under President’s rule. The state, through Rakesh Dwivedi, backed a later hearing rather than a quick hearing.

Among the issues which are likely to come up before the bench are whether a presidential proclamation can introduce an article, whether it was illegal only on this count, whether such an article violated the right to equality guaranteed to all citizens.

We will examine whether the Article goes against the basic structure (of the Constitution). ...A three-judge bench will consider whether it has to go before a Constitution bench Dipak Misra , CJI

Samanwaya.Rautray@timesgroup.com

Courtesy: Economic Times:  The speaking tree: Aug, 04 2018