The Supreme Court on Monday will consider whether a Constitution Bench should probe the grant of special status to Jammu and Kashmir in 1954 under the aegis of the Jawaharlal Nehru government.
The special status was bestowed on Jammu and Kashmir by incorporating Article 35A in the Constitution. Article 35A was incorporated by an order of President Rajendra Prasad in 1954 on the advice of the Nehru Cabinet. The Parliament was not consulted when the President incorporated Article 35A into the Constitution through a Presidential Order issued under Article 370. Article 368 (i) of the Constitution mandates that only the Parliament can amend the Constitution.
Article 35A gives the Jammu and Kashmir State Legislature a carte blanche to decide the ‘permanent residents’ of the State and grant them special rights 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.
Attorney General K.K. Venugopal, for the Centre, has already cautioned the three-judge Bench led by Chief Justice of India that the issue was a "sensitive" one.
This three-judge Bench would decide whether or not to refer the issue to the Constitution Bench after hearing the final arguments on Monday.
One of the main writ petitions is filed by NGO We the Citizens, which challenges the validity of both Article 35A and Article 370. It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the 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.
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 Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir.
The question before the Supreme Court is whether the President acted outside his jurisdiction or powers? Is Article 35A constitutionally invalid because the Nehru government did not place it before the Parliament for discussion?
A five-judge Bench of the Supreme Court in its March 1961 judgement 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 judgement is silent as to whether the President is empowered to bring about a radical change in the Constitution by introducing a new Article.
