Challenge to Constitution Order 1954 in relation to Jammu & Kashmir before Supreme Court

const-JKA PIL has been filed before the Supreme Court of India challenging several special constitutional provisions in relation to the state of Jammu and Kashmir and is set to heard on Monday, 28 September by a bench comprising of Chief Justice HL Dattu and Justice Amitava Roy.

The petition filed by Bondana Purushottam Yadav prays the Court to quash:

Petition

Case No. Writ Petition (Civil) No. 489 of 2015 [PIL]
Case Title Bondana Purushottam Yadav v. Union of India & Ors.
Parties Respondents:

  1. Union of India
  2. The Secretary, For the Parliamentary Affairs
  3. [Not known]
  4. The Secretary for the House of Council of States
  5. The Secretary for the President of India
  6. The Chief Secretary, State of Jammu and Kashmir
  7. [Not Known]
  8. The Secretary for the State Legislature Council, State of Jammu and Kashmir
  9. Sri Karan Singh, Member of Rajya Sabha
Prayer

Issuance of a Writ of Certiorari for quashing the separate Constitution (application to the State of Jammu and Kashmir) Orders 1950 and Constitution (application to Jammu and Kashmir) Order 1954 i.e. C.O. 48-Appendix -I, the re-statement, with reference to the present text of the constitution of the exceptions and medications subject to which the constitution applies to the State of Jammu and Kashmir 1964 as mentioned under Appendix II in the Constitution of India,

History

Article 370 which grants a special status to the State of Jammu and Kashmir in comparison to other India states came into force on 26 January, 1950 along with the rest of the Constitution. On the same day, Constitution (Application To The State Of Jammu And Kashmir) Orders 1950 was issued by the then President of India, in consultation with the government of Jammu and Kashmir, in exercise of the powers conferred by Article 370.

In July 1952, Sheikh Abdullah signed Delhi Agreement with the Central government on Centre-State relationships, providing for autonomy of Jammu and Kashmir within India and of regions within Jammu and Kashmir. Subsequently on January 23, 1954, Bakshi Ghulam Mohammad, the then Prime Minister of the State of Jammu and Kashmir declared Jammu and Kashmir as a part of the Indian Union. In February, 1954 the Constituent Assembly of Jammu and Kashmir ratified the accession of the State of Jammu and Kashmir to India. The President of India, with the concurrence of the Government of the State of Jammu and Kashmir, issued the Constitution (Application To The State Of Jammu And Kashmir) Orders 1954. The 1954 Order which came into force on May 14, 1954 superseded the 1950 Order and implemented the Delhi Agreement as ratified by the Constituent Assembly of Jammu and Kashmir. The 1954 Order defines the constitutional position of the State of Jammu and Kashmir vis-à-vis Indian Union. [Read more here].

The 1950 and 1954 Orders form a part of the Constitution of India and Appendices to the Constitution.


Controversial Article 35A

The 1954 Order contains Article 35A provides:

35 A. Saving of laws with respect to permanent residents and their rights.— 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: (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—

(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.

It is often alleged that Article 35A is in conflict with the Articles 14, 19 and 21 of the Constitution for creating a special class of citizens within a class of citizens of India.


PIL challenging Article 35A pending before Supreme Court

Earlier on 19 August 2104, a Supreme Court bench comprising of Justice (as he was then) HL Dattu and Justice SA Bobde had issued notice in a PIL filed by Delhi-based think tank We the Citizens which challenge the Constitutional validity of Article 35A.

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