Article 35A: Let three judges decide if we need a larger bench, says Supreme Court

A bench of Chief Justice of India Dipak Misra and Justice A M Khanwilkar adjourned the hearing Monday, saying a three-judge bench needs to decide whether it should be referred to a Constitution Bench.

The Supreme Court Monday deferred hearing on petitions challenging Article 35A of the Constitution to the last week of August after both the Centre and Centre-ruled J&K administration sought adjournment of proceedings, citing ongoing preparations for local body polls.

A day earlier, Kashmir Valley observed an unprecedented shutdown with mainstream political parties and separatists warning of a mass agitation if the Act is tinkered with.

A bench of Chief Justice of India Dipak Misra and Justice A M Khanwilkar adjourned the hearing Monday, saying a three-judge bench needs to decide whether it should be referred to a Constitution Bench.

“Let the matter be listed before a three-judge bench in the week commencing August 27 to determine whether it should be heard by a Constitution Bench or not,” the judges said.

READ | Attempt to fiddle with Article 35A would undermine basic structure of Constitution: Mehbooba Mufti

Article 35A empowers the J&K legislature to define permanent residents of the state. It was added through the Constitution (Application to Jammu and Kashmir) Order, 1954 issued by the President under Article 370 of the Constitution.

The J&K Constitution, which was adopted on November 17, 1956, defined a permanent resident as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years and has “lawfully acquired immovable property in the state”. The J&K legislature can alter the definition of permanent resident only through a law passed by two-thirds majority.

The provision bars Indian citizens, other than those who are permanent residents of J&K, from seeking employment, settling in the state, acquiring immovable properties or undertaking any trade or business if the state makes any law to that effect and it cannot be challenged before any court.

Delhi-based NGO ‘We the Citizens’ challenged the provision on the ground that it could only have been introduced through a Constitutional amendment under Article 368, and not through a Presidential Order under Article 370.

It alleged that the provision creates a class within a class of Indian citizens. “The citizen of India cannot be subjected to prohibition or restriction to get employment, trade and commerce acquisitions of property and assets in the state of Jammu and Kashmir in the garb of Article 35A which is brought on statute book’ by the Presidential order exercising power under Article 370(1) of the Constitution of India, cannot override the fundamental rights contained for the citizen in Part III of the Constitution of India. Therefore Article 35A is in conflict with Article 14, 19 and 21 of the Constitution…and hence ultra vires and invalid,” the petitioner contended.

The J&K Government, however, defended the provision saying it had become a settled law.

On Monday, J&K was the first to seek adjournment. Additional Solicitor General Tushar Mehta, who appeared for the state, cited “ongoing preparations for the upcoming panchayat/urban local body and municipal elections”.

The petitioners — there are five in all — countered this and said the Centre was seeking adjournment everytime the matter came up for hearing. The court, they said, cannot adjust its calendar according to the convenience of any government.

The CJI, however, pointed out that once a Constitutional provision is under attack, it has to be decided by a Constitution Bench. He said a three-judge bench will take a call on whether it should be referred.

“After 64 years, a Constitutional provision is being attacked. The only thing that needs to be looked into is whether Article 35A goes against the basic structure of the Constitution,” he said.

CJI Misra said that Justice D Y Chandrachud, who was one of the members on the three-judge bench, was absent Friday and accordingly, the matter can be listed in the week beginning August 27.

Attorney General K K Venugopal, who appeared for the Centre, repeated the submission he made the last two times the petition came up for hearing — on October 30, 2017 and April 14 this year. He said the Centre had appointed an interlocutor to speak to the various stakeholders and the the process will take time. He also cited the ongoing preparations for the local body polls to seek adjournment.

ASG Mehta said there were lakhs of candidates contesting the local body polls and there were issues like militancy which need to be tackled.

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