SC TO HEAR PETITION CHALLENGING CONSTITUTIONALITY OF ARTICLE 370
After the independence from British rule in the year, 1947 princely states were provided with the opportunity to choose whether they want to be a part of Indian constituency. Many states including Jammu and Kashmir chose to be independent. After the constitution of Pakistan, there was a strong force from Pakistan to take a hold over Kashmir. Until the Indo-Pak war in 1947-1948 Kashmir was free to accede to India or Pakistan. But the war created a terror within the territory and thus the ruler of Kashmir Raja Hari Singh entered into an agreement with the Indian Prime Minister Jawaharlal Nehru. According to the agreement, Kashmir will become a part of India but will not be abided by the Indian constitution. It was when Kashmir was divided into Indian Kashmir and Pakistan occupied Kashmir (POK). Article 370 drafted by Sheikh Abdullah was instituted in the Indian Constitution. It gives special status to the state of Kashmir.
Article 370 was enacted under part XXI of the constitution that pertains to “Temporary, Transitional and Special provisions”. This article states that no law other than those related to defense, foreign affairs, communications, and finance will be applied to the state. This indicates the presence of a different set of rules for the citizens with regard to citizenship, ownership, fundamental rights and others. Article 370 provides Jammu and Kashmir a special privilege to have its separate constitution and penal code which is Ranbir Penal Code.
There had been several pleas for declaring the presence of a separate Constitution for Jammu and Kashmir arbitrary and void. There has been a rising demand for one Nation, one Flag, and one Constitution. On 3rd April 2018, the Bench comprising of Justices Adarsh K Goel and R F Nariman made an observation on the petition filed by Kumari Vijayalakshmi Jha stating that Article 370 acquiring special provisions for the state of Jammu and Kashmir had acquired permanent status making its abrogation impossible.
On 26th of November 2018, a bench of Justices DY Chandrachud and MR Shah refused to hear a fresh petition challenging Article 370 saying the petitioner may file implement application (IA) in the case. The bench stated that the political situation of that area during the time is not suitable to raise this matter. The bench affirmed to hear the petition in the first week of April 2019 following the request of state and center.
BJP leader and advocate Ashwini Kumar Upadhyay filed a Petition before SC that the proviso to Article 370(3) has lapsed with the dissolution of Jammu and Kashmir Constituent Assembly and is not treated mandatory for the powers exercised by President. According to the article presidential powers can only be exercised by the recommendation of Constituent Assembly of the State which is mentioned in clause(2), whereas Constituent Assembly which is mentioned in clause(3) is only set up for the framing of the Constitution. Thus because the Constitution has already been framed no such Constituent Assembly can be further instituted. The continued existence of Article 370 violates the structural sanctity of the Indian Constitution. The Article was balanced with the Supremacy of the Constitution with several features. The non-obstante clause thereby giving a wide range of modifications for the beginning and the sunset clause as well as “Temporary and Transitional Provisions” of the Article are the few features that balance the constitutional superiority. The Article has now acquired a permanent status which was never the intention of the framers of the Constitution.
On being mentioned of the several facts the Bench of Chief Justice Ranjan Gogoi and Justices Deepak Gupta and Aniruddha Bose took note of the submission of BJP leader said to include the matter in the early listing of the petition. The Bench said “File and memo. We will see.”
Other strings of petition challenging the Article corollary to Article 370 i.e. articles 35(A) are pending before SC. Article 35(A) further saves such article and acts from being challenged for Constitutional validity. Such petitions are to be sum up and presented before the court while the hearing of the present matter.