The Supreme Court on Monday said a five-judge Constitution Bench would hear if the Constitutional provision barring a J&K woman from property rights and other privileges in the state on marrying a person from outside, if it decides this was violative of the Constitution’s “basic structure”.
A bench of Justice Dipak Misra and Justice AM Khanwilkar said “if we really feel that challenge (to the validity of the Constitutional provisions) is accepted, it would be heard by a five-judge Constitution Bench on two aspects — whether it is violative of basic structure doctrine and whether it is procedurally ultra vires”.
The bench said this while tagging, with an already pending matter, a petition by Dr Charu Wali Khanna challenging Article 35 A of the Constitution and Section 6 of the Jammu and Kashmir Constitution which dealt with “permanent residents” of of Jammu and Kashmir, providing them special rights and privileges.
The provision under challenge not only deprives the native woman of Jammu & Kashmir of her right to acquire or possess any property and other privileges in the hill State but it extends even to her children from such a marriage.
Pointing to the inherent gender bias in the provision, counsel Bimal Jad appearing for the petitioner told the bench that former Chief Minister Farooq Abdullah married a foreigner but his son Omar Abdullah continues to enjoy all rights and privileges in the state.
Omar Abdullah in turn marries outside the state and his children continue to enjoy same rights and privileges but same was not the case with his sister Sara Abdullah who too had married outside the state, he added, this was not only discriminatory on the grounds of gender bias but also violative of right to equality under the Constitution’s Article 14.
Earlier, the bench headed by Chief Justice Jagdish Singh Khehar had on July 17 referred to the three-judge bench the challenge to Article 35A dealing with special rights and privileges to the citizens of the Jammu and Kashmir.