The Centre on Monday bought time from the Supreme Court hearing petitions challenging special status to Jammu and Kashmir, saying it has appointed an interlocutor to commence dialogue with stakeholders in the restive State.
Appearing before a Bench led by Chief Justice Dipak Misra, Attorney General K.K. Venugopal said the court should adjourn the hearing on the petitions against Article 35A of the Constitution by six months.
The court settled for 12 weeks in its order. It initially said eight weeks, but added one more month on the request of Mr. Venugopal.
"The interlocutor has already commenced talks with stakeholders. If the court continues to hear this case, it will affect the dialogue process," Mr. Venugopal submitted.
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.
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 controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and Sheikh Abdullah extending Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.
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 Indian Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir. So 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.
A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of India discusses the President’s powers under Article 370 to ‘modify’ the Constitution. Though the court concludes that the President has the power to modify the Constitution under Article 370, the judgment is silent as to whether the President is empowered to bring about a radical change in the Constitution by introducing a new Article. This question remains open till date.
The question has come up for a decision in 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.
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.
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 apex court for an authoritative decision.
