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, by an order of President Rajendra Prasad under Article 370 in 1954 on the advice of the Nehru Cabinet. Parliament was not consulted.
Article 368 (1) of the Constitution mandates that only Parliament can amend the Constitution by introducing a new Article.
Carte blanche
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 cautioned the three-judge Bench led by the Chief Justice of India that the issue is a ‘sensitive’ one.
This three-judge Bench will 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 filed by NGO We the Citizens 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.
‘Temporary provision’
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 it to be a tool to bring permanent amendments, like Article 35A.
The petition says Article 35A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens.”
