Won’t Respond To Plea Challenging Article 35A’s Constitutional Validity: Centre Tells SC, CJI Refers the Matter To Three Judge Bench

The Centre has told the Supreme Court that the government will not file any affidavit responding to a petition challenging the constitutional validity of Article 35A,  which grants ‘special status’ to permanent residents of J&K and prevents the rest of Indian citizens from acquiring immovable property and exercising voting rights in the state.

Attorney General KK Venugopal told the bench of Chief Justice of India Justice JS Khehar that the “Government of India will not file counter affidavit as the matter involves pure question of law. Therefore, the matter may be fixed for final hearing before a larger bench”.

The CJI fixed the matter before a three-judge bench after six weeks for final hearing.

It has been more than two years after filing of the petition, but the Centre has not filed its response. However, the Jammu and Kashmir state has already filed its reply to the petition.

Senior advocate KN Bhatt, assisted by advocate Barun Kumar Sinha, submitted that since the matter is serious in nature as the constitutional validity of Article 35A read with Article 370 (1)(d) of the Constitution of India is involved, therefore, it requires urgent consideration.

Earlier, through its affidavit, the state government in the state had said the apex court had already dealt with the President’s 1954 order, which allowed only the permanent residents of J&K to buy and sale the immovable properties, getting government jobs and voting rights there and restrained others.

It submitted that Article 370 was enacted and amended remained in the Constitution as an integral part thereof and since the Presidential Order of 1954 has been recognised and acted on, as valid, ever since its promulgation, and when challenged, it was rejected by the two Constitution benches of the Supreme Court and sought dismissal of the petition.

The petition was filed by 'We the citizens', a Delhi-based non-governmental organisation registered as a society, through its president Sandeep Kulkarni in August 2014.

In the petition, it was stated that J&K is an integral part of India and, therefore, the citizen of J&K as well as citizen of other on the ground of certain clauses/paras contained in the Constitution application to J&K order 1954 are violative of Article 14 of the Constitution of India.

Although the President has the power to modify/ clarify the Article 35 with regard to the state of J&K, but his 1954 order was illegal, the petition stated, as “with the insertion of Article 35 A, it can only be done by the Parliament through an amendment”.