Supreme Court of India has dismissed a PIL which sought quashing of Article 370 of the Constitution of India and other special constitutional provisions which give a special status to Jammu and Kashmir. However the Chief Justice of India HL Dattu presiding over the bench also consisting of Justice Amitava Roy remarked that it was for the Parliament of India to decided over the issue and not for the courts.

A few weeks earlier, the Jammu and Kashmir High Court had ruled that Article 370 of the Constitution, granting special status to the State, has assumed place of permanence in the Constitution and the feature is beyond amendment, repeal or abrogation.

The Petition

As first reported by 1, Law Street in September, Bondana Purushottam Yadav, an Andhra Pradesh based lawyer had filed a PIL petition before the Supreme Court to quash:

Petitioner had also sought to quash Article 370 and to make all laws applicable to other states also valid for the state of Jammu and Kashmir. He further requested for a direction to remove the words “except Jammu and Kashmir” from all the provisions of laws where they are made applicable to all other states and union territories.

The petition had first come for hearing on September 28 when it was adjourned for a post-Dussehra vacation date on the request of the petitioner.

It’s not for the Supreme Court to decide, but for the Parliament

On October 30, the matter was against listed before a bench consisting of CJI HL Dattu and Justice Amitava Roy. However the bench was not inclined to grant relief claimed by the petitioner who appeared in person. Bench observed:

Will it be done by the court or by Parliament? Can we ask Parliament to delete a provision from the Constitution? It is not for this court to do so.

History

Article 370 which grants a special status to the State of Jammu and Kashmir in comparison to other India states came into force on 26 January, 1950 along with the rest of the Constitution. On the same day, Constitution (Application To The State Of Jammu And Kashmir) Orders 1950 was issued by the then President of India, in consultation with the government of Jammu and Kashmir, in exercise of the powers conferred by Article 370.

In July 1952, Sheikh Abdullah signed Delhi Agreement with the Central government on Centre-State relationships, providing for autonomy of Jammu and Kashmir within India and of regions within Jammu and Kashmir. Subsequently on January 23, 1954, Bakshi Ghulam Mohammad, the then Prime Minister of the State of Jammu and Kashmir declared Jammu and Kashmir as a part of the Indian Union. In February, 1954 the Constituent Assembly of Jammu and Kashmir ratified the accession of the State of Jammu and Kashmir to India. The President of India, with the concurrence of the Government of the State of Jammu and Kashmir, issued the Constitution (Application To The State Of Jammu And Kashmir) Orders 1954. The 1954 Order which came into force on May 14, 1954 superseded the 1950 Order and implemented the Delhi Agreement as ratified by the Constituent Assembly of Jammu and Kashmir. The 1954 Order defines the constitutional position of the State of Jammu and Kashmir vis-à-vis Indian Union. [Read more here].

The 1950 and 1954 Orders form a part of the Constitution of India and Appendices to the Constitution.

Controversial Article 35A

The 1954 Order contains Article 35A provides:

35 A. Saving of laws with respect to permanent residents and their rights.— Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State: (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—

(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.

It is often alleged that Article 35A is in conflict with the Articles 14, 19 and 21 of the Constitution for creating a special class of citizens within a class of citizens of India.

PIL challenging Article 35A pending before Supreme Court

Earlier on 19 August 2104, a Supreme Court bench comprising of Justice (as he was then) HL Dattu and Justice SA Bobde had issued notice in a PIL filed by Delhi-based think tank We the Citizens which challenge the Constitutional validity of Article 35A.

Read the Order.

Mohit Singh

Mohit Singh is an advocate at the Supreme Court of India.

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