SrinagarAll eyes would be on the Supreme Court of India on Monday as its three-judge bench would hear for final disposal a petition, challenging Indian Constitutions Article 35A, which gives protection to special status of Jammu and Kashmir.
Six applications have been filed on behalf of M/s Mir Kasim, Balwant Singh and Sadiq Hussain; Tariq Hameed Karra, Change India; Rao Farman Ali and others; Ghulam Ahmad Lone and Akhtar Hussain Kochak. First three have been filed for intervention while remaining for impleadment as party respondent to the main plea.
Advocate Sushma Suri has also filed Vakalatnama on behalf of ministry of home affairs but no counter affidavit has been filed so far.
On July 17, the Government of India informed the top court that it has already taken a conscious decision of not filing a counter affidavit to the petition, filed in 2015 by a Delhi based NGOWe The Citizens, because the issues which are raised for adjudication, are pure questions of law.
Article 35A, added to the Constitution by a Presidential Order in 1954, accords special rights and privileges to the citizens of the Jammu and Kashmir, and empower states legislature to frame any law without attracting a challenge on grounds of violating right to equality of people from other states or any other right under the Indian Constitution.
In its detailed reply, the state government has termed the challenge to the validity of Article 35A as legally misconceived, stating that the matter has already been settled by the apex court.
In support of the contention, the government has cited two judgmentsPuranlal Lakhanpal Vs President of India & Others, (1962) and Sampat Prakash v. State of Jammu and Kashmir and Another, (1969).
The instant petition ought to be rejected for reasons already given by Your Lordships, In Puranlal Lakhanpal and Sampat Prakash Cases, the government has said.
In May 1954, the government of India led by Jawahahr Lal Nehru amended the Article 35 of the constitution. Article 35-A was added much to the displeasure of the most of the parliamentarians especially from the right. The new article was enforced in Jammu & Kashmir through the Constitution (Application to Jammu & Kashmir) Order, May 1954.
(The petition) is hit by extraordinary delay and laches. The Constitutional Order of 1954 came into force on 14th May, 1954 and the instant petition, challenging its vires, has been preferred after a delay of more than 60 (sixty) years and no explanation has been offered, the government said, adding, Acting under the provisions of Article 35A of the Constitution of India, the Constitution of Jammu and Kashmir, 1956, expressly provided for permanent residents, as an integral part of the Constitution (Section 6 – 10), which provisions are not at all challenged in the instant petition.
The NGO is believed to be close the Rashtriya Swayamsevak Sangh, the ideological patron of Indias ruling party, BJP, and other rightwing Hindu organizations.
The government also assailed the locus and the bonafides of the NGO to institute the petition, saying petitioner is a busybody, a meddlesome interloper, who has filed the instant petition seeking publicity.
On October 10 last year, the J&K high court, in a land mark judgment, ruled that Article 370, which gives special status to people of citizens, was beyond amendment, repeal or abrogation as constituent assembly of the State before its dissolution did not recommend its amendment or repeal.
Article 370, notwithstanding its title showing it a “temporary provision” is a permanent provision of the Constitution, it cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370, a division bench of the court said.
The Constituent Assembly in terms of proviso to Clause (3) Article 370 is conferred power to recommend to the President that Article 370 be declared to cease to be operative or operate only with the exceptions and modifications mentioned in the recommendation, if any so made.
Regarding Article 368 of the constitution, which confers right to Indian parliament to make changes to the Indias fundamental or supreme laws, the court had said that it cannot be pressed into service as it does not control Article 370.
Earlier in July last year, the high court observed that Article 35(A) was only a clarificatory provision to clear the issue of constitutional position obtaining in India in contrast to J&K.
This provision clears the constitutional relationship between people of the rest of the country and the people of J&K. It is, in essence, information to the citizens of rest of country that on a constitutional and legal plank they in all respects do not constitute a class with citizens of the state of Jammu and Kashmir, the court had said.
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