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Vishad Srivastava, B.A. LL.B. (H)
One of the controversial Articles of our constitution include Article 35A and Article 370. Both articles deal with the sensitive issue of Jammu and Kashmir. These controversial articles are in the headlines nowadays due to the petition filed challenging their constitutional validity which has now been referred to 3 Judge Bench of Supreme Court.
The Petition is filed by ‘We the Citizens’ a Delhi based non governmental organization registered as society through it’s President Sandeep Kulkarni in August 2014. In the petition it contended that Jammu & Kashmir is an integral part of India and Article 35A allows the State government of Jammu & Kashmir to enact laws to restrict persons outside Jammu & Kashmir from employment, right to acquire immovable property and settle in Jammu & Kashmir which is added to the Constitution through a Presidential Order, 1954 – issued by the President of India, “in exercise of the powers conferred by” clause (1) of Article 370 (1) (d)of the Constitution, with the concurrence of the Government of the State of Jammu and Kashmir. Petition further state that by reading of Article 370 (1) (d)of the constitution of India would show that there is no power conferred to the President of India to amend the constitution by adding any new article by himself. Moreover it states that Article 368(1) empowers the Parliament to amend, vary and repeal any provision of the constitution and states that it is beyond the power and jurisdiction of the President to inculcate any article to the constitution. Hence it is unconstitutional for the President to drive a new Article by himself. It further contended that this article is violative of fundamental rights which is Article 14, 21 and 19 of the Constitution as it creates the difference among people of rest of India then from Jammu & Kashmir although President has the right to modify the article but can’t introduce a new one. The Petitioner has sought for declaration that Constitution can be amended only by Article 368.
The Bench hearing the petition asked the Central government for reply for responding the petition challenging the constitutional validity of Article 35-A for which Center has said that the government will not file any affaidavit responding to a petition challenging the constitutional validity of Article 35- A. Attorney General K.K. Venugopal told the bench of Chief Justice of India Justice J.S. Khehar and D.Y. Chandrachud that as matter concerns pure question of law so it will not file counter affaidavit so the case must be decided by larger bench so therafter C.J.I referred the case to 3 judge bench hearing. However Jammu and Kashmir state has filed their reply affaidavit that as mattern concerns with sensitive Article 35 A read alongwith Article 370 (1) (d) so it requires urgent consideration. It also states that after the enactment of the Presidential order this article has been challenged twice and that too before constitution bench so the precedent is quite in the favour of Presidential order so this petition should clearly be disregarded. The State government also said “the instant petition seeks to upset settled law, accepted and complied with by all.” Further as the challenge to the Presidential Order has come after more than 60 years, such a plea could not be entertained. It said “After this length of time when the provisions enacted in Article 35A of the Constitution have been continuously acted upon and treated as valid, the same ought not to be permitted to be challenged.” J& K also contended that while Representing the state, eminent Jurist Fali Narinam defended the provision and implied that Article 35 A has become a permanent feature of the Indian Constitution. The1954-Presidential Order granting special rights to permanent residents of J & K has been recognised, accepted and acted upon since its enactment and cannot be challenged now.
Jammu & Kashmir is the crucial state for India especially Kashmir. The region which is in constant conflict has seen many petitions claiming to be the India’s part and many attempt has been made by Pakistan at various platform to prove it to be at their part. Various affaidavit have been filed by the J&K government in reply to various petition but in none petition have mentioned the original accession by Hari Singh(King of J&K)which completely signifies India’s right for it. Although many attempts had been made in U.N. but it is somewhere fault in our diplomacy that issue is not resolving but is growing complex day by day with lots of misguided youth. Article 370 which is the only article who has sought it’s amendments since long time. This article has mentioned it’s separate Constituion which was enacted on 26 January 1956 and such articles like Article35 A keep the Indians reached out of it’s own territoy. The ruling B.J.P. party has been claiming to remove this articles which would separate the Kashmir from rest of nation but till now no significant steps has been taken by this government. Moreover many of the opposition parties are against this motion which itself raises the question on their nationalism. If we look at this case only, then it took 2 years to decide who will finally hear the case and result will subsequently take many years to resolve and probably result will not be in favour of the petitioner as happened with previous cases. This proves weakness of Judiciary in solving the public sensitive issue whether it is of Ram Janmbhoomi case, Kashmir case or Kashi Vishwanath Temple case. Kashmir has the full right to be developed like all the other states and the valley of heaven should get it’s dignity not the funeral of terrorist like Burhan Wani.