President's Jurisdiction To Extend Provisions Under Garb Of Art 370 Challenged In SC

21 August 2014
The Daily Excelsior
Neeraj Rohmetra

Jammu: Supreme Court has decided to examine the constitutional validity of a Presidential order under Article 370 of the Constitution of India, which grants 'special status' to the State of Jammu and Kashmir. The Presidential order made inapplicable the entire chapter on fundamental rights in the State regarding specified laws relating to permanent residents, special privileges to such residents, acquisition of immovable property and several other issues. Issuing notice to the Centre and State Government, the bench comprising Justice H L Dattu and Justice S A Bobde directed the Centre to explain the special status to the State of J&K. The direction were issued in response to a writ petition filed by Sandeep Kulkarni, President of a Society called 'We the Citizens', wherein the latter has contended that the restriction imposed through addition of a new Article 35-A to the Constitution was beyond the President's powers under Article 370(1)d. The impugned provision is part of a Presidential Order of 1954 and has serious repercussion on the Status enjoyed by J&K. Senior Counsel, Mr K N Bhat and Mr Barun Kumar Sinha, who appeared for the petitioner have challenged the constitutionality and validity of para (j) of the Constitution (Application to Jammu and Kashmir) Order 1954, whereby new Article 35(A) has been added to the Constitution of India whereby constitution has been amended by the President of India invoking jurisdiction-power under Article 370(1) of the Constitution of India. While describing the Article as violation of the fundamental rights of the people of India, the petition says, 'Article 35 A of Constitution of India is in conflict with Article 14, 19 and 21 of the Constitution of India because it creates a special class of citizen within a class of citizen of India. The concept of special class of citizen is unknown to the law of citizenship. A perusal of Constitution of India would establish that the spirit of Indian Constitution lies in oneness of the citizens of this country. Therefore, Article 35 A is highly discriminatory and therefore it is liable to be declared as unconstitutional.' 'Because Article 35 A of the Constitution of India prohibits the citizen of the other part of this country and defines the class of persons who are or shall be permanent residents of the State of Jammu & Kashmir or confers on such permanent resident any special rights and privileges, or imposing upon other persons any restrictions in respect of seeking employment under the State Government, acquisition of immovable property in the State of Jammu & Kashmir, settlement in the State of Jammu & Kashmir, right to scholarship etc. and this part has been incorporated in the Constitution of India vide Constitution (Application to Jammu & Kashmir) Order 1954 by the President of India by exercising power under Article 370 (1) of the Constitution of India. Therefore, the Article 35 A is creating special class of citizen as such it is unconstitutional and is liable to be set aside', says the document. The petitioner stated that because Article 35A provides for the provision that notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State of Jammu & Kashmir in respect of the items prescribed in Article 35 A shall be void on the ground that it is inconsistent with or takes ways or abridges any rights conferred on the other citizens of India. This provision clearly creates two class of citizen in India namely one class of citizen which consists of all states of India, except the State of Jammu & Kashmir and the other class of the citizen consist of the permanent resident of Jammu & Kashmir alone'. These provisions contained in Article 35 A are in clear contrast of Article 14 of the Constitution of India which talks about right to equality and provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Similarly Article 16 provides for equality of opportunity in matters of employment for all citizens to any office in the State. Therefore, Article 35 A is curtailment of fundamental rights of the citizen of this country and therefore it is liable to be declared as unconstitutional. Challenging the powers of the President on the issue, the petition says, 'It is respectfully submitted that by exercising power under Article 370 (1) (d) the President has arbitrarily exceeded the executive power by incorporating new Article i.e. Article35 A within part III of the Constitution of India. Therefore, the Article35 A added vide the constitution application to J&K order 1954 is unconstitutional and therefore it is liable to be struck off from the constitution.' 'Because the amendment in the Constitution shall be done only by the Parliament in accordance with Article 360 of the Constitution of India. The President of India under the garb of a temporary provision i.e. Article 370 (1) cannot amend the Constitution by incorporating a new Article of permanent nature. However, a careful reading of Article 370, that a President can amend or create exception of an existing provision of Constitution in respect of the State of Jammu & Kashmir. The power for creation of exception or modification conferred on the President of India cannot be extended to the extent to add new Article to the Constitution of India. Therefore the President of India has exceeded his power and jurisdiction while incorporating new Article i.e. Article 35 A to the Constitution of India', said the Counsel. Because since the date of signing of instrument of accession, coming into force of the Constitution of India on 26.01.1950 and adoption of the Constitution of the State of J&K and radical changes brought in the socio political scenario in the state of J&K order 1954 with its subsequent amendments have become irrelevant and redundant and therefore in the said background, existence of Article 35 A in the Constitution of India has lost its ground. The State of J&K is integral part of confederation of Indian States and therefore the citizens of J&K as well as citizens of other States of the country have got equal fundamental rights and 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. 'The concept that the Constitution can be amended only by the Parliament is part of the basic Structure of the Constitution. No process of amendment can alter it. Any action taken contrary to Article 368 shall be void and void ab-initio. In the present case the impugned action is arbitrary and violative of Article 14 of the Constitution', says the petition adding, 'because Article 370 (1) does not contemplate effecting an amendment to the Constitution thereby prejudicing the rights of other citizens. In any case the exercise of the power was arbitrary and opposed to Article 14.'