The Evening Wrap: Article 35A denied fundamental rights to non-permanent residents of J&K, says CJI

Chief Justice of India D.Y. Chandrachud said Article 35A, which empowered the Jammu and Kashmir Legislature to define “permanent residents” of the State and provide them special privileges, denied fundamental rights to others. “Article 35A gave special rights and privileges to permanent residents and virtually took away the rights for non-residents. These rights included the right to equal opportunity of State employment, right to acquire property and the right to settle in Jammu and Kashmir,” Chief Justice Chandrachud, heading a Constitution Bench, observed on August 28. ‘Permanent residents’ included people who were hereditary State subjects as in 1927, when J&K was a princely state prior to its accession to the Indian Dominion in 1947. Article 35A, which was introduced through the Constitution (Application to Jammu and Kashmir) Order, 1954 issued by the President under Article 370, demarcated permanent residents with exclusive right to purchase land, seek State government employment and other benefits in education and health care. The others, called ‘non-permanent residents’, were not privy to these privileges. The Chief Justice noted that Article 35A had even granted immunity from judicial review to these special privileges. “This artificially created class of ‘permanent residents’ alienated people who did not fall within the category. Article 35A further mandated that any law which provides for these special privileges to this class would not violate fundamental rights like Articles 14 (right to equality), 19 (1)(f) and 31 (then right to property), 19(1)(e) (right to settle anywhere in the country) and even Article 21 (right to life and personal liberty) and 22 (protection against preventive detention). That demarcating line between permanent residents and non-residents did this for decades together. It was unthinkable in a constitutional democracy… the Government of India with the State government of Jammu and Kashmir added Article 35A,” Solicitor-General Tushar Mehta, for the Government of India, submitted. To this, Chief Justice Chandrachud indicated that the current Union government cannot distance itself from its predecessors. “Mr. Solicitor, you are appearing for the Government of India. You [Government of India] did all this. In constitutional theory, the Government of India is one, perpetual entity,” Chief Justice Chandrachud reminded the law officer. Mehta said the Centre corrected itself in August 2019 when it abrogated Article 370 and its creation, Article 35A. “I am justifying this correction we made in 2019. I am not saying that or this government. ‘Our government’ is what I say. The mistakes of the past should not befall the future generations,” he replied. The Solicitor-General pointed to how people, both Hindus and Muslims, driven out of Pakistan-occupied Kashmir in 1947 were not recognised as permanent residents until 2019. The large population of safai karamcharis brought to J&K for manual work were not given this status despite residing in the State for years. “Article 35A had enjoyed a status over and above the Ninth Schedule (laws outside the ambit of judicial review) of the Constitution,” he stressed. Mehta said that Article 35A had been a hindrance to the growth and flow of investments into J&K. Despite this, the class of people known as ‘permanent residents’ were misguided into believing that they were enjoying a privilege that none could take away from them. SC says it is a ‘problem’ if J&K academic was suspended for appearing in Article 370 case The Supreme Court on August 28 asked the Attorney General of India to look into the suspension of a senior Kashmiri lecturer, Zaroor Ahmed Bhat, from his job by the Jammu and Kashmir administration in close succession of his arguing his challenge to the abrogation of Article 370 before the top court. “Mr. Attorney General, please use your good offices to see what happened. Somebody who appears in this court is suspended. Talk to the Lieutenant Governor… If there is some other reason, apart from his appearance in this court, that’s different… But this suspension happens in close succession to his appearance before us… just see what happened,” Chief Justice of India D.Y. Chandrachud addressed the country’s top law officer R. Venkataramani. Justice B. R. Gavai also questioned the Centre about the “close proximity” between Bhat’s appearance in court and the suspension order. “I have not seen the order, but the timing and the reference to this aspect [Mr. Bhat’s appearance in the Supreme Court in the Article 370 case]... If it is there, then there is a little problem,” Justice Sanjay Kishan Kaul joined in from the Bench. Solicitor General Tushar Mehta, appearing for both the Union of India and the Jammu and Kashmir administration, said “there are other issues” leading to the suspension and everything in the newspapers “may not be the whole truth” about the affair. However, when the judges on the Constitution Bench, one after the other, voiced their scepticism about the suspiciously quick succession of events, Mehta admitted that the “timing was definitely not proper… I bow down… no argument”. He said he would ask the government officials concerned to look into it. Bhat’s predicament was brought to the attention of the Bench by senior advocates Kapil Sibal and Rajiv Dhavan, who said “this is not the way our democracy functions. He appears in this court, files written submissions, the next day he is suspended”. Sibal said if there were “other issues” which prompted the suspension, the administration could have acted against him earlier. “Why wait till he appears in the Article 370 matter,” the senior advocate asked. “He was suspended from the faculty because he argued what he argued in the Article 370 matter… these things should not happen,” Sibal submitted. Bhat, who teaches Political Science at GovernmentHigher Secondary School in Srinagar, was suspended with immediate effect for the violation of the provisions of J&K CSR, Jammu and Kashmir Government Employees (Conduct) Rules, 1971 and J&K Leave Rules. He had argued against the abrogation of Article 370 in the Supreme Court. He had told the Bench, on a personal note, about how difficult it has become for people like him to face questions about the true essence of democracy and the spirit of the Indian Constitution following the abrogation of Article 370 and the end of the dual relationship of federalism on August 5, 2019. U.P. slap row: FIR against Alt News co-founder for ‘revealing’ identity of Muslim student An FIR was lodged against Alt News co-founder Mohammad Zubair on August 28 for allegedly disclosing the identity of a minor boy, who was slapped by his classmates on the instruction of a teacher at Khubbapur village of the district. Senior Superintendent of Police Sanjeev Suman said the case has been registered under section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The complainant Vishnu Dutt alleged that Zubair disclosed the identity of the boy by sharing a video of the incident on social media. On Friday, a video of the school teacher Tripta Tyagi had gone viral in which a Muslim student of Class 2, was seen being slapped by his classmates for allegedly not doing his homework, leading to widespread condemnation. A case was registered against the teacher on Saturday under sections 323 (punishment for voluntarily causing hurt) and 504 (intentional insult with intent to provoke breach of the peace) of the IPC on the complaint by the boy’s family. Tyagi, in her defence, said the video had been tampered with to give a communal colour to the matter and claimed that it was shot by the student’s uncle. The teacher said though it was wrong on her part to get a student slapped by his classmates, she was forced to do it as she is disabled and was not able to stand up and reach the student who had not done his assignment. Centre informs Madras High Court of intent to amend Indian Succession Act, 1925 with respect to wills executed in Chennai, Mumbai & Kolkata The Centre has informed the Madras High Court of its intent to amend Section 213 of the Indian Succession Act, 1925 which mandates that Hindus, Buddhists, Jains, Sikhs and Parsis obtain probate or Letter of Administration (LoA) from the courts concerned, to inherit for property through a will executed in Chennai, Mumbai or Kolkata. The proposed amendment would also cover wills related to immovable property situated in the three metropolitan cities. Appearing before the first Division Bench of Chief Justice S.V. Gangapurwala and Justice P.D. Audikesavalu, Additional Solicitor General AR.L. Sundaresan said, the Union Ministry of Law and Justice was taking steps to amend the provision. He would apprise the High Court of further developments in due course. The judges recorded his submission and adjourned a batch of cases, challenging the legal provision, to October 10. In a reply affidavit filed before the Bench, an Additional Secretary to the Ministry said: “The difference between Hindus, Buddhist, Sikhs, Jains and Parsis on the one side and Christians and Muslims on the other side for grant of probate or wills or Letters of Administration, with the will or its authenticated copy annexed by a court of competent jurisdiction, in order to establish the right as executor of Legatee, is not required to continue.” The reply affidavit also stated that “the legislative intention and the purpose of the existing Section 213 of the Act is infructuos (sic) and not required to continue.” E. Manohar, counsel for one of the writ petitioners, K.K. Subramanian of Shastri Nagar in Chennai, told the court that the 1925 legislation was enacted during the British era when places under colonial rule were classified as Part A, B and C depending upon their importance and land value. The Britishers had exempted the Muslims from the rigours of Section 21 of the Succession Act because they were governed by the Sharia (Muslim personal law). This personal law permits a person to give away to a third person or entity only a maximum of one-third of his property, that could be left after payment of all debts and his funeral expenses too, without the consent of his legal heirs. A similar exemption was provided to Christians too, by way of an amendment in 2002. However, people professing Hinduism, Buddhism, Jainism, Sikhism and Zorastrianism could not inherit properties in the three metropolitan cities merely on the basis of a will executed by their family members. They had to necessarily approach the High Court and obtain probate or an LoA on payment of a necessary court fee before being able to claim a right of ownership over those properties. This was a time consuming process, the counsel complained. The petitioner, in his affidavit, questioned the correctness of imposing such conditions on the basis of religion and geographic location. He urged the court to declare Section 213 unconstitutional, and to be in violation of Articles 14 (right to equality) and 15 (State shall not discriminate on the basis of religion, race, caste, sex and so on) of the Constitution. Delhi High Court takes cognisance of minor’s sexual assault by suspended Delhi Govt officer The Delhi High Court on August 28 took cognisance of the case of sexual assault of a minor girl allegedly by suspended Delhi Government officer Premoday Khakha and directed the authorities to ensure that the identity of the survivor is not revealed in any manner. A Bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula, initiated on its own a public interest litigation (PIL) after taking suo motu cognisance of the incident. The High Court said the survivor should get due protection and compensation. The Bench was informed by the counsel for Delhi Government and police that the girl is admitted to a government hospital in New Delhi and her condition is critical. It asked the Department of Women and Child Development of Delhi Government, police and the Centre to file a report in the matter. The court’s detailed order is awaited. The matter is listed for further hearing on September 14. During the hearing, the counsel for National Commission for Protection of Child Rights (NCPCR) said it has also taken cognisance of the matter and there have been certain anomalies in compliance of rules by authorities. The counsel said they will file a report. The suspended officer, who allegedly raped the girl several times and impregnated her, was arrested by the police on August 21 and is in judicial custody. His wife Seema Rani, who is accused of giving the girl medicine to terminate her pregnancy, is also in judicial custody. Khakha had allegedly raped the minor several times between November 2020 and January 2021. She was staying at the residence of the accused, a family friend, after her father passed away on October 1, 2020, the police had said. The two were arrested after the victim recorded her statement before a magistrate at a hospital. A case has been registered under provisions of the POCSO Act and Indian Penal Code Sections 376(2)(f) (being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman) and 509 (word, gesture or act intended to outrage the modesty of a woman), police said. IPC Sections 506 (criminal intimidation), 323 (voluntarily causing hurt), 313 (causing miscarriage without woman’s consent) and 120B (criminal conspiracy) have also been invoked in the case, police said. In Brief: ‘Jalabhishek Yatra’ kicks off on a small scale in Nuh The ‘Jalabhishek Yatra’ in Nuh on August 28 kicked off, though at reduced scale, with four buses of local Hindus and a group of saints allowed to offer holy waters at Nalhar temple. Vishwas Hindu Parishad joint general secretary Surendra Jain told The Hindu that the organisers had agreed to reduce the size and scale of the procession at the behest of the administration. The procession was being carried out amid tight security with the police vehicles escorting the devotees’ bus. Toshakhana case: Pak court reserves verdict on Imran Khan’s plea; to announce judgement on Aug. 29 The Islamabad High Court on August 28 reserved its verdict on former Pakistan Prime Minister Imran Khan’s plea seeking the suspension of his three-year jail term in the Toshakhana corruption case. A division bench comprising Islamabad High Court Chief Justice Aamir Farooq and Justice Tariq Mehmood Jahangiri reserved the verdict after hearing both parties’ counsels. The bench later said that the reserved judgment would be announced at 11.00 a.m. on Tuesday. Evening Wrap will return tomorrow. [logo] The Evening Wrap 28 August 2023 [The Hindu logo] Welcome to the Evening Wrap newsletter, your guide to the day’s biggest stories with concise analysis from The Hindu. [[Arrow]Open in browser]( [[Mail icon]More newsletters]( Article 35A took away fundamental rights while giving special rights to permanent residents of J&K, says CJI [Chief Justice of India D.Y. Chandrachud said Article 35A, which empowered the Jammu and Kashmir Legislature to define “permanent residents” of the State and provide them special privileges, denied fundamental rights to others.]( “Article 35A gave special rights and privileges to permanent residents and virtually took away the rights for non-residents. These rights included the right to equal opportunity of State employment, right to acquire property and the right to settle in Jammu and Kashmir,” Chief Justice Chandrachud, heading a Constitution Bench, observed on August 28. ‘Permanent residents’ included people who were hereditary State subjects as in 1927, when J&K was a princely state prior to its accession to the Indian Dominion in 1947. Article 35A, which was introduced through the Constitution (Application to Jammu and Kashmir) Order, 1954 issued by the President under Article 370, demarcated permanent residents with exclusive right to purchase land, seek State government employment and other benefits in education and health care. The others, called ‘non-permanent residents’, were not privy to these privileges. The Chief Justice noted that Article 35A had even granted immunity from judicial review to these special privileges. “This artificially created class of ‘permanent residents’ alienated people who did not fall within the category. Article 35A further mandated that any law which provides for these special privileges to this class would not violate fundamental rights like Articles 14 (right to equality), 19 (1)(f) and 31 (then right to property), 19(1)(e) (right to settle anywhere in the country) and even Article 21 (right to life and personal liberty) and 22 (protection against preventive detention). That demarcating line between permanent residents and non-residents did this for decades together. It was unthinkable in a constitutional democracy… the Government of India with the State government of Jammu and Kashmir added Article 35A,” Solicitor-General Tushar Mehta, for the Government of India, submitted. To this, Chief Justice Chandrachud indicated that the current Union government cannot distance itself from its predecessors. “Mr. Solicitor, you are appearing for the Government of India. You [Government of India] did all this. In constitutional theory, the Government of India is one, perpetual entity,” Chief Justice Chandrachud reminded the law officer. Mehta said the Centre corrected itself in August 2019 when it abrogated Article 370 and its creation, Article 35A. “I am justifying this correction we made in 2019. I am not saying that or this government. ‘Our government’ is what I say. The mistakes of the past should not befall the future generations,” he replied. The Solicitor-General pointed to how people, both Hindus and Muslims, driven out of Pakistan-occupied Kashmir in 1947 were not recognised as permanent residents until 2019. The large population of safai karamcharis brought to J&K for manual work were not given this status despite residing in the State for years. “Article 35A had enjoyed a status over and above the Ninth Schedule (laws outside the ambit of judicial review) of the Constitution,” he stressed. Mehta said that Article 35A had been a hindrance to the growth and flow of investments into J&K. Despite this, the class of people known as ‘permanent residents’ were misguided into believing that they were enjoying a privilege that none could take away from them. SC says it is a ‘problem’ if J&K academic was suspended for appearing in Article 370 case [The Supreme Court on August 28 asked the Attorney General of India to look into the suspension of a senior Kashmiri lecturer, Zaroor Ahmed Bhat]( from his job by the Jammu and Kashmir administration in close succession of his arguing his challenge to the abrogation of Article 370 before the top court. “Mr. Attorney General, please use your good offices to see what happened. Somebody who appears in this court is suspended. Talk to the Lieutenant Governor… If there is some other reason, apart from his appearance in this court, that’s different… But this suspension happens in close succession to his appearance before us… just see what happened,” Chief Justice of India D.Y. Chandrachud addressed the country’s top law officer R. Venkataramani. Justice B. R. Gavai also questioned the Centre about the “close proximity” between Bhat’s appearance in court and the suspension order. “I have not seen the order, but the timing and the reference to this aspect [Mr. Bhat’s appearance in the Supreme Court in the Article 370 case]... If it is there, then there is a little problem,” Justice Sanjay Kishan Kaul joined in from the Bench. Solicitor General Tushar Mehta, appearing for both the Union of India and the Jammu and Kashmir administration, said “there are other issues” leading to the suspension and everything in the newspapers “may not be the whole truth” about the affair. However, when the judges on the Constitution Bench, one after the other, voiced their scepticism about the suspiciously quick succession of events, Mehta admitted that the “timing was definitely not proper… I bow down… no argument”. He said he would ask the government officials concerned to look into it. Bhat’s predicament was brought to the attention of the Bench by senior advocates Kapil Sibal and Rajiv Dhavan, who said “this is not the way our democracy functions. He appears in this court, files written submissions, the next day he is suspended”. Sibal said if there were “other issues” which prompted the suspension, the administration could have acted against him earlier. “Why wait till he appears in the Article 370 matter,” the senior advocate asked. “He was suspended from the faculty because he argued what he argued in the Article 370 matter… these things should not happen,” Sibal submitted. Bhat, who teaches Political Science at GovernmentHigher Secondary School in Srinagar, was suspended with immediate effect for the violation of the provisions of J&K CSR, Jammu and Kashmir Government Employees (Conduct) Rules, 1971 and J&K Leave Rules. He had argued against the abrogation of Article 370 in the Supreme Court. He had told the Bench, on a personal note, about how difficult it has become for people like him to face questions about the true essence of democracy and the spirit of the Indian Constitution following the abrogation of Article 370 and the end of the dual relationship of federalism on August 5, 2019. U.P. slap row: FIR against Alt News co-founder for ‘revealing’ identity of Muslim student [An FIR was lodged against Alt News co-founder Mohammad Zubair on August 28 for allegedly disclosing the identity of a minor boy]( who was slapped by his classmates on the instruction of a teacher at Khubbapur village of the district. Senior Superintendent of Police Sanjeev Suman said the case has been registered under section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The complainant Vishnu Dutt alleged that Zubair disclosed the identity of the boy by sharing a video of the incident on social media. On Friday, a video of the school teacher Tripta Tyagi had gone viral in which a Muslim student of Class 2, was seen being slapped by his classmates for allegedly not doing his homework, leading to widespread condemnation. A case was registered against the teacher on Saturday under sections 323 (punishment for voluntarily causing hurt) and 504 (intentional insult with intent to provoke breach of the peace) of the IPC on the complaint by the boy’s family. Tyagi, in her defence, said the video had been tampered with to give a communal colour to the matter and claimed that it was shot by the student’s uncle. The teacher said though it was wrong on her part to get a student slapped by his classmates, she was forced to do it as she is disabled and was not able to stand up and reach the student who had not done his assignment. Centre informs Madras High Court of intent to amend Indian Succession Act, 1925 with respect to wills executed in Chennai, Mumbai & Kolkata [The Centre has informed the Madras High Court of its intent to amend Section 213 of the Indian Succession Act, 1925]( mandates that Hindus, Buddhists, Jains, Sikhs and Parsis obtain probate or Letter of Administration (LoA) from the courts concerned, to inherit for property through a will executed in Chennai, Mumbai or Kolkata. The proposed amendment would also cover wills related to immovable property situated in the three metropolitan cities. Appearing before the first Division Bench of Chief Justice S.V. Gangapurwala and Justice P.D. Audikesavalu, Additional Solicitor General AR.L. Sundaresan said, the Union Ministry of Law and Justice was taking steps to amend the provision. He would apprise the High Court of further developments in due course. The judges recorded his submission and adjourned a batch of cases, challenging the legal provision, to October 10. In a reply affidavit filed before the Bench, an Additional Secretary to the Ministry said: “The difference between Hindus, Buddhist, Sikhs, Jains and Parsis on the one side and Christians and Muslims on the other side for grant of probate or wills or Letters of Administration, with the will or its authenticated copy annexed by a court of competent jurisdiction, in order to establish the right as executor of Legatee, is not required to continue.” The reply affidavit also stated that “the legislative intention and the purpose of the existing Section 213 of the Act is infructuos (sic) and not required to continue.” E. Manohar, counsel for one of the writ petitioners, K.K. Subramanian of Shastri Nagar in Chennai, told the court that the 1925 legislation was enacted during the British era when places under colonial rule were classified as Part A, B and C depending upon their importance and land value. The Britishers had exempted the Muslims from the rigours of Section 21 of the Succession Act because they were governed by the Sharia (Muslim personal law). This personal law permits a person to give away to a third person or entity only a maximum of one-third of his property, that could be left after payment of all debts and his funeral expenses too, without the consent of his legal heirs. A similar exemption was provided to Christians too, by way of an amendment in 2002. However, people professing Hinduism, Buddhism, Jainism, Sikhism and Zorastrianism could not inherit properties in the three metropolitan cities merely on the basis of a will executed by their family members. They had to necessarily approach the High Court and obtain probate or an LoA on payment of a necessary court fee before being able to claim a right of ownership over those properties. This was a time consuming process, the counsel complained. The petitioner, in his affidavit, questioned the correctness of imposing such conditions on the basis of religion and geographic location. He urged the court to declare Section 213 unconstitutional, and to be in violation of Articles 14 (right to equality) and 15 (State shall not discriminate on the basis of religion, race, caste, sex and so on) of the Constitution. Delhi High Court takes cognisance of minor’s sexual assault by suspended Delhi Govt officer The [Delhi High Court on August 28 took cognisance of the case of sexual assault of a minor girl allegedly by suspended Delhi Government officer Premoday Khakha]( and directed the authorities to ensure that the identity of the survivor is not revealed in any manner. A Bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula, initiated on its own a public interest litigation (PIL) after taking suo motu cognisance of the incident. The High Court said the survivor should get due protection and compensation. The Bench was informed by the counsel for Delhi Government and police that the girl is admitted to a government hospital in New Delhi and her condition is critical. It asked the Department of Women and Child Development of Delhi Government, police and the Centre to file a report in the matter. The court’s detailed order is awaited. The matter is listed for further hearing on September 14. During the hearing, the counsel for National Commission for Protection of Child Rights (NCPCR) said it has also taken cognisance of the matter and there have been certain anomalies in compliance of rules by authorities. The counsel said they will file a report. The suspended officer, who allegedly raped the girl several times and impregnated her, was arrested by the police on August 21 and is in judicial custody. His wife Seema Rani, who is accused of giving the girl medicine to terminate her pregnancy, is also in judicial custody. Khakha had allegedly raped the minor several times between November 2020 and January 2021. She was staying at the residence of the accused, a family friend, after her father passed away on October 1, 2020, the police had said. The two were arrested after the victim recorded her statement before a magistrate at a hospital. A case has been registered under provisions of the POCSO Act and Indian Penal Code Sections 376(2)(f) (being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman) and 509 (word, gesture or act intended to outrage the modesty of a woman), police said. IPC Sections 506 (criminal intimidation), 323 (voluntarily causing hurt), 313 (causing miscarriage without woman’s consent) and 120B (criminal conspiracy) have also been invoked in the case, police said. In Brief: ‘Jalabhishek Yatra’ kicks off on a small scale in Nuh The [‘Jalabhishek Yatra’ in Nuh on August 28 kicked off, though at reduced scale]( with four buses of local Hindus and a group of saints allowed to offer holy waters at Nalhar temple. Vishwas Hindu Parishad joint general secretary Surendra Jain told The Hindu that the organisers had agreed to reduce the size and scale of the procession at the behest of the administration. The procession was being carried out amid tight security with the police vehicles escorting the devotees’ bus. Toshakhana case: Pak court reserves verdict on Imran Khan’s plea; to announce judgement on Aug. 29 [The Islamabad High Court on August 28 reserved its verdict on former Pakistan Prime Minister Imran Khan’s plea seeking the suspension of his three-year jail term in the Toshakhana corruption case](. A division bench comprising Islamabad High Court Chief Justice Aamir Farooq and Justice Tariq Mehmood Jahangiri reserved the verdict after hearing both parties’ counsels. The bench later said that the reserved judgment would be announced at 11.00 a.m. on Tuesday. Evening Wrap will return tomorrow. 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