Chief Justice of India Dipak Misra on Monday orally observed the Supreme Court will consider whether Article 35A, which gives special status to the State and people of Jammu and Kashmir, is violative of the ‘Basic Structure’ of the Constitution.
‘Basic Structure’ is a collective term coined by a 13-judge Bench in the historic Keshavananda Bharati case to include a catena of fundamental rights, including right to equality, non-discrimination, liberty, life and dignity, enshrined and preserved in the Constitution.
The Centre, represented by Attorney-General K.K. Venugopal, persisted that the case should be adjourned as an interlocutor is carrying on dialogues with the State’s stakeholders.
The State of J&K, represented by Additional Solicitor General Tushar Mehta, also sought an adjournment.
However, the Bench led by Chief Justice Misra and comprising Justice A.M. Khanwilkar was missing its third member, Justice D.Y. Chandrachud. Justice Chandrachud is on leave.
Chief Justice Misra explained that since the issue is being heard by a three-judge Bench and one of them is absent, the case should be adjourned.
“The challenge to Article 35A is being heard by a three-judge Bench. The three-judge Bench will determine whether the case should be referred to a Constitution Bench. Today, as you see, the other judge is absent and so we have to hear the case another day,” Chief Justice Misra addressed the petitioner lawyers who objected to an adjournment.
One of them even complained that J&K is virtually shut down before every Supreme Court hearing. To this, Chief Justice Misra said the challenge is to a provision, Article 35A, which has been implemented for over 60 years and the petitions were filed in only 2014. The Chief Justice said the case has progressed to the extent of the question of reference by a three-judge Bench to a Constitution Bench.
The Bench posted the case for hearing in the week commencing August 26.
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.
The three-judge Bench would decide whether or not to refer the issue to the Constitution Bench.
One of the main writ petitions is filed by NGO We the Citizens, which 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.
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 Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.
The petition said Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens.” Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Indian Constitution.