The Supreme Court will examine fervent pleas for a five-judge Constitution Bench to decide whether special status granted to Jammu and Kashmir is unconstitutional.
“That [reference of the petitions to a Constitution Bench] we will see... yes, we will examine,” Chief Justice Dipak Misra responded to the pleas for a Constitution Bench to take over the issue on Monday.
The three-judge Bench posted the case for August 6 to hear arguments.
Attorney General K.K. Venugopal, for the Centre, said the issue was ‘sensitive.’
The Centre’s interlocutor has had a series of talks with the stakeholders and should be given more time.
Mr. Venugopal said the case should be taken up by the court after three months. He said the Centre would also make submissions on the constitutionality of Article 35A , which gives Jammu and Kashmir special status.
Article 35A of the Constitution gives the State Legislature carte blanche to decide who all are the “permanent residents” of the State and grant them special rights and privileges in 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.
Petitioner said Article 35A was a violation of the fundamental right of equality under Article 14.
Article 35A was incorporated into the Indian Constitution in 1954 by an order of President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.
Parliament was not consulted when the President incorporated Article 35A into the Indian Constitution through a Presidential Order issued under Article 370.
Article 368 (i) of the Constitution mandates that only Parliament can amend the Constitution by introducing a new Article.
The court is hearing a writ petition filed by non-governmental organisation, We the Citizens, which challenges the validity of both Article 35A and Article 370.
It challenges that Article 35A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens.”
“One of the lawyers claimed that someone from Pakistan can stay in Kashmir, but someone who has been here is hit by Article 35A,” senior advocate Ranjit Kumar, for one of the petitioners, submitted.
A second petition filed by Jammu and Kashmir native, Charu Wali Khanna, has challenged Article 35A for protecting certain provisions of the Jammu and Kashmir Constitution which restricts the basic right to property if a native woman marries a man not holding the Permanent Resident Certificate.
