SC to examine if pleas challenging Article 35A should be referred to Constitution Bench

The Supreme Court will examine pleas by various parties to have a five-judge Constitution Bench hear and decide petitions challenging the special status granted to Jammu and Kashmir under Article 35A of the Constitution.

“That (reference of the petitions to a Constitution Bench) we will see... yes, we will examine,” Chief Justice Dipak Misra responded to the pleas for a Constitution Bench to take over the issue on Monday.

The three-judge Bench posted the case for August 6 to hear arguments.

Attorney General K.K. Venugopal, for the Centre, said the issue was “sensitive” and the case should be taken up only after three months. The Centre said it would argue on the constitutionality of Article 35A.

Article 35A is a provision incorporated in the Indian Constitution giving the Jammu and Kashmir State Legislature a carte blanche to decide who all are the ‘permanent residents’ of the State, and grant them special right and privileges in State public sector jobs, acquisition of property within the State, scholarships and other public aid and welfare programmes. The provision mandates that no act of the State legislature coming under the ambit of Article 35A can be challenged for violating the Indian Constitution or any other law of the land.

The petitioner said Article 35A was a violation of the fundamental right to equality under Article 14.

Article 35A was incorporated into the Indian Constitution in 1954 by an order of President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet. The Presidential Order was issued under Article 370(1)(d) of the Indian Constitution.

This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir. Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded the ‘permanent residents’ of Jammu and Kashmir.

The Parliament was not consulted when the President incorporated Article 35A into the Indian Constitution through a Presidential Order issued under Article 370. Article 368(i) of the Constitution mandates that only the Parliament can amend the Constitution by introducing a new Article.

The court is hearing a writ petition filed by NGO We the Citizens, which challenges the validity of both Article 35A and Article 370.

The petition argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Indian Constitution and the State of Jammu and Kashmir was never accorded any special status in the Constitution.

Article 370 was only a ‘temporary provision’ to help bring normalcy in Jammu and Kashmir and strengthen democracy in that State. The Constitution makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution, said the petition.

The petition said Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens.” Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Indian Constitution, it stated.

“One of the lawyers claimed that someone from Pakistan can stay in Kashmir, but Indian citizens who have been living in the Stare are hit by Article 35A,” senior advocate Ranjit Kumar, for one of the petitioners, submitted.

A second petition filed by Jammu and Kashmir native, Charu Wali Khanna, has challenged Article 35A for protecting certain provisions of the Jammu and Kashmir Constitution which restricts the basic right to property if a native woman marries a man not holding the Permanent Resident Certificate.

Mr. Venugopal has also called for a debate in the Supreme Court on the sensitive subject.

The court has indicated that the issue of the validity of Article 35A and 370 may ultimately be placed before a Constitution Bench of the for an authoritative decision.