New Delhi: The Centre on Monday refused to commit itself in the Supreme Court on continuing the special status to Jammu and Kashmir as provided in the Constitution and said being purely a legal issue, it should be decided by a larger bench of the apex court.
Attorney-General K.K. Venugopal told a bench of Chief Justice J.S. Khehar and Justice D.Y. Chandrachud that the matter raised in a PIL in 2014 by a Delhi-based NGO We the Citizens, against the continuance of the special status was a legal issue and therefore the Centre was not filing any reply to the notice issued in 2014.
Senior counsel K.N. Bhat, appearing for the petitioner said the Centre should take a stand one way or the other as one of the issues raised in the PIL was to extend the fundamental rights chapter in the Indian Constitution to Jammu and Kashmir also. The PIL said a combined reading of Article 3 & 4 would show that the state of Jammu & Kashmir is integral part of union of states and the laws made under Article 2, 3 & 4 shall be applicable on the state of Jammu & Kashmir also.
The attorney-general, however, said it was a “very sensitive” matter and this would require a “larger debate”. The two-judge bench of the CJI then referred the case to a three-judge bench, saying the matter could come up after six weeks.
The PIL has sought Article 35A in the Constitution to be declared unconstitutional, contending that the President could not have amended the Constitution by the 1954-order and it was supposed to be a temporary provision. Challenging the addition of new
Article 35 A by way of Constitution (Application to Jammu & Kashmir) Order 1954 by the President of India exercising power under Article 370 (1) (d) of the Constitution of India. A reading of Article 370 of the Constitution of India would show that there IS no power conferred on the President of India to amend the (Laws made by the J&K government under Article 35A bars all the Indians— other than the original inhabitants of the state—from acquiring immovable property anywhere in J&K, obtaining jobs under the J&K Government, settling in the state and availing the state-sponsored scholarship schemes.)
The petitioner contended that the J&K government, under the guise of Article 35A and Article 370, which grants special autonomous status to the state, has been discriminating against non-residents.
Fali Nariman, for the J and K government justified the provision and said that Article 35 A had become a permanent feature of the Indian Constitution and that the 1954-Presidenial Order granting special rights to permanent residents of the state has been recognised, accepted and acted upon since its enactment and cannot be challenged now.
The State government said “the instant petition seeks to upset settled law, accepted and complied with by all.” Further as the challenge to the Presidential Order has come after more than 60 years, such a plea could not be entertained. It said “After this length of time when the provisions enacted in Article 35A of the Constitution have been continuously acted upon and treated as valid, the same ought not to be permitted to be challenged.”
