August 16,2017:
Local Law under challenge debars Kashmiri Women from property rights and Jobs if they marry outside the State.
Supreme Court's five-judge Constitution Bench of may examine a law which denies the Kashmiri women and their descendants of their property rights, should they marry anyone outside State and bars them from applying for the local jobs.
Kashmiri woman had challenged this law as violative of Right to Equality guaranteed to all the women under Indian Constitution.
Jammu and Kashmir Legislature is empowered by the Article 35A of Indian Constitution to make the special laws regarding State.
Article 35A. Saving of laws with respect to permanent residents and their rights.
— Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:
(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
- (i) employment under the State Government;
- (ii) acquisition of immovable property in the State;
- (iii) settlement in the State; or
- (iv) right to scholarships and such other forms of aid as the State Government may provide,
shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part.”
*added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954.
Another State law which bars outsiders from picking up property or jobs in State is already under challenge.
The Apex Court is examining a challenge to special status guaranteed to State under the Article 370, Constitution.
In its preliminary observations, Apex Court Bench led by the Chief Justice-designate Dipak Misra expounded that, "Law seemed to be violative of the right to equality guaranteed under the Indian Constitution".
Petition has been filed by Charu Wali Khanna, challenges the legal validity of the Article 35A and also provision in J&K Constitution which makes this special provisions loaded against the local women marrying the outsiders.
Article 35A, added to Constitution by a Presidential Order in the year 1954, accords the special rights and privileges to citizens of J&K, and empower State Legislature to frame the separate laws for State.
The Petition states that,"Section 6 of J&K Constitution restricts Right of women to marry a man of their choice by not giving heirs any right to the property if woman marries a man not holding a Permanent Resident Certificate".
Holder of a Non-Permanent Resident certificate in State can vote in Lok Sabha elections, but a woman who marries an outsider cannot even vote in the local elections, it further added.
Charu Wali Khanna stated that she wanted to build a home in J&K in order to rediscover her roots, but couldn't do so due to discriminatory laws peculiar to State.
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