SC to consider plea for urgent listing of PIL against Articles 35A, 370

Tribune News Service
New Delhi, February 18

The Supreme Court on Monday said it would consider plea for urgent listing of a PIL challenging the validity of Articles 35A and 370 of the Constitution, which confers special status on Jammu and Kashmir and gives certain privileges to permanent residents of the state.

"Give the mentioning memo to the Registrar. We will see it," a Bench headed by Chief Justice of India Ranjan Gogoi told Delhi BJP leader advocate Ashwini Upadhyay after he denuded urgent hearing of his petition.

Upadhyay told the Bench that the matter was of "extreme national importance" and needed to be listed for hearing at the earliest.

Upadhyay, in his plea which was filed in September last year, has contended that the special provision was "temporary" in nature at the time of framing of the Constitution and Article 370(3) lapsed with the dissolution of the Jammu and Kashmir Constituent Assembly on January 26, 1957.

Added to the Constitution through a Presidential Order in 1954, Article 35A gives special rights and privileges to permanent residents of Jammu and Kashmir and debars rest of Indians from acquiring immovable property, obtaining state government jobs and settling in the state. It denies property rights to woman marrying men from other states. This legal disability also applies to heirs of such women.

Article 370 empowered the state legislature to frame any law without attracting a challenge on the grounds of violation of the right to equality of people from other states or any other right under the Constitution.

The petitioner urged the top court to declare that the separate Constitution of Jammu and Kashmir was "arbitrary" and "unconstitutional" on various grounds, including that it was against the "supremacy of the Constitution of India and contrary to dictum of 'One Nation, One Constitution, One National Anthem and One National Flag'.

"The Constitution of Jammu and Kashmir is invalid mainly for the reason that the same has not yet got the assent of the President, which is mandatory as per provisions of the Constitution of India," the plea, which may come up for hearing next week, said.

The petition claimed that the maximum life span of Article 370 was only till the existence of the Constituent Assembly that was January 26, 1950 when the national document was adopted.

Article 370 is a "temporary provision" with respect to Jammu and Kashmir and restricts the applicability of various provisions of the Constitution by "curtailing" the power of Parliament to make laws on subjects which fall under the Union and Concurrent lists, it said.