SrinagarThe Supreme Court on Tuesday issued notices to government of India and the state government, seeking response to a plea challenging validity of Article 370 of the Constitution of India which gives special status to Jammu and Kashmir.
A division bench of Chief Justice J S Khehar and Dr. Justice D.Y. Chandrachud has sought the response of GoI through its Cabinet Secretary and state government through Chief Secretary within four weeks.
The court passed the order on a special leave petition filed Kumari Vijayalakshmi Jha Delhi high courts dismissal as merit less of her petition. Jha in her plea states that the Article 370 of the Indian constitution is a temporary provision and has lapsed in 1954.
She states that a perusal of the Constituent Assembly debate would show that the maximum life of Article 370 was prescribed up to the existence which was till the continuance of Jammu and Kashmir Constituent Assembly and as such the Article has ceased to exist.
As per the judgment of the Supreme Court, though as per marginal note Article 370 is a temporary provision, it will, however, continue to remain in force until the specified event in clause of the 370 Article takes place. It also noted that the Article remains in current usage. In view of the authoritative pronouncement (by the SC) it is clear that the submission of the petitioner has no merits, the Delhi High Court had said.
It had also declared that pleas raised by Jha stand fully rebutted by the Apex Court in a recent judgment in State Bank of India vs. Santosh Gupta and Another (2017) on application of SARFAESI Act.
The Supreme Court in paragraphs 14 and 15 held that the first thing that is noticed in Article 370 is that the marginal note states that it is a temporary provision with respect to the State of Jammu & Kashmir. However, unlike Article 369, which is also a temporary provision limited in point of time to five years from the commencement of this Constitution, no such limit is to be found in Article 370. Despite the fact that it is, therefore, stated to be temporary in nature, sub-clause (3) of Article 370 makes it clear that this Article shall cease to be operative only from such date as the President may by public notification declare. And this cannot be done under the proviso to Article 370 (3) unless there is a recommendation of the Constituent Assembly of the State so to do, the apex court had said.
In Sampat Prakash v. the State of Jammu & Kashmir(1969), it was held that the Article will cease to operate under sub-clause (3) only when a recommendation is made by the Constituent Assembly of the State to that effect.
It was found that in fact the Constituent Assembly of the State had made a recommendation that the Article should be operative with one modification to be incorporated in the explanation to clause (1) of the Article, namely, that the Maharaja of Jammu & Kashmir be substituted by the expression Sadar-I-Riyasat of Jammu & Kashmir.
It is important to note, the apex court had said, that Article 370 (2) does not in any manner state that it shall cease on the completion of the work of the Constituent Assembly or its dissolution. Having regard to all these factors, this Court clearly held that though the marginal note refers to Article 370 as only a temporary provision, it is in fact in current usage and will continue to be in force until the specified event in sub-clause (3) of the said Article takes place. It was further held by the Sampat Prakash judgment that Section 21 of the General Clauses Act, 1897 was also applicable so that the power under this Article can be used from time to time to meet with varying circumstances.
On July 17 last month, the apex court posted a Public Interest Litigation, filed in 2015 by a Delhi based NGOWe The Citizens, for hearing before a three judge bench after six weeks, for final disposal.
The court passed the order after Government of India stated that it has taken a conscious decision of not filing a counter affidavit to a PIL, challenging Indian Constitutions Article 35A, which gives protection to special status of state.
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