SC Agrees For Early Listing Of Petition Challenging Article 370 Of The Constitution

The Supreme Court on Wednesday agreed for an early listing of the petition challenging the constitutionality of Article 370 of the Constitution by virtue of which the state of Jammu & Kashmir is accorded a special status.

The PIL, by BJP Leader and Advocate Ashwini Kumar Upadhyay, seeks a declaration that the proviso to Article 370(3) has lapsed with the dissolution of the J & K Constituent Assembly on 26.1.1958, and is confined to being directory only and cannot be treated as mandatory for the exercise of the powers of the President.

The above is borne by the fact and the specific wording of the proviso to Article 370(3). While the proviso hedges the exercise of power by the President of India with regard to Article 370, it specifies that the presidential power under clause (3) could only be used upon a "recommendation of the Constituent Assembly of the State referred to in clause (2)". Referring back to clause (2) of Article 370 it is clear that the Constituent Assembly of the State mentioned in the proviso to clause (3) is one which is for the purpose of the 'framing the Constitution of the State'. Therefore, once such a Constitution has been framed, a constituent assembly within the meaning of proviso to clause (3) cannot be further instituted for any other purpose.

"The continued existence of Article 370 of the Constitution of India, given the typical historical setting in which the same was formulated, coupled with subsequent developments over the years since, violates the structural sanctity of this Constitution and is in effect a fraud played on the suprema lex. Part XXI of the Constitution of India was specifically designed in a manner to facilitate the transition of a fledgling democracy with federal constituents into a true 'Union of States', with a centric bias...", the plea avers.

Further, it is pointed out that certain special features of Article 370 are immediately discernable which posit the said Article in a unique position which was carefully balanced to ensure that the supremacy of the Constitution of India is never undermined- First, Article 370 is one of those handful of constitutional provisions which begins with a non-obstante clause to the entire Constitution; secondly, the said provision was included in a special Part which was then titled 'Temporary and Transitional Provisions'; thirdly, the marginal note to Article 370 clearly spells out the intent of the constituent assembly to formulate this Article only as "Temporary provisions with respect to the State of Jammu and Kashmir"; fourthly, and significantly the provision had envisioned a sunset clause and condition for it to be rendered as a 'temporary provision'; and fifthly, the sunset clause/condition for the provision as incorporated in Article 370(3) also significantly begins with a non-obstante clause to the remainder of the Article.

It is argued that the continuing and purportedly perennial existence of Article 370 along with a separate Constitution for the state of Jammu and Kashmir is rendered anomalous also in light of the fact that practically the entirety of the Constitution of India (as it stood on 20-06-1964), with certain modifications and amendments, has been extended to the state by virtue of the Constitution (Application to Jammu and Kashmir) Order, 1954, with the concurrence of the state government.

"Crucially, Article 370 commences with a non-obstante clause, thereby paving the path to make wide ranging modifications (plausibly also in derogation of provisions of the Constitution) in the provisions of the Constitution in its application to the State of Jammu and Kashmir. Further, Article 370(3) commences with a second non-obstante clause which is a rider on everything that may be provided under the other provisions of Article 370 itself. Therefore, a cumulative reading of the two non-obstante clauses leads to the inescapable conclusion that Article 370(3) would be governing in the scenario of a conflict between an exercise of powers by the President under that clause, as posited against the Presidential powers under the remaining provisions of Article 370", Upadhyay suggests.

It is advanced that the careful positioning and phrasing of Article 370 with its deployment of twin non-obstante clauses, therefore amplifies the full extent of the powers of the President of India, in connection with the application of the Constitution, including the provision of Article 370, to the state of Jammu and Kashmir, geared towards the gradual and appropriate integration of the erstwhile kingdom of Jammu and Kashmir with the Union of India. This cherished objective of softly handling the process of integration of the state shall be dealt a death blow in the circumstance it is to be caused that the special provision of Article 370 shall continue in perpetuity, which in any case was never the intention of the framers of the Constitution as is plainly evident from the structure, positioning and phraseology of the Article in question.

On being mentioned, Chief Justice Ranjan Gogoi conceded to list the matter for hearing soon.

Another string of petitions, which attack the validity of Article 35A, a corollary of Article 370, is also pending before the court. The State of Jammu and Kashmir was granted a special status by incorporating Article 35A in the Constitution vide an order of President Rajendra Prasad in 1954 on the advice of the Jawaharlal Nehru Cabinet. The provision gives the State Legislature a carte blanche to determine 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. Article 35A further saves such acts from being challenged for violation of the Constitution or any other law of the land.