The Centre on Monday refused to take a stand in the Supreme Court on a petition challenging Article 35A of the Constitution which enables Jammu and Kashmir to make special laws for its permanent residents saying the question was “very sensitive” and required “larger debate”.
Attorney General K K Venugopal told the bench of Chief Justice J S Khehar and Justice D Y Chandrachud that it raised Constitutional issues after which the court referred the matter to a three-judge bench and set six weeks for final disposal.
The petition filed by Delhi-based NGO We the Citizens has challenged the Constitutional validity of Article 35A saying it was introduced by the President by way of the Constitution (Application to Jammu and Kashmir) Order, 1954. This was done by drawing powers from Article 370 (1) of the Constitution granting special rights to Jammu and Kashmir.
The rules of amending Constitution are laid down in Article 368 and according to this, only Parliament has the power to amend the Constitution, the petitioner said.
Article 35A bars Indian citizens, other than those who are permanent resident of Jammu and Kashmir from seeking employment, settling in the state, acquiring immovable property or undertaking any trade or business if the state makes any law to that effect and it cannot be challenged before any court.
The petition contended that there cannot be a “class within a class of Indian citizens”. It said that a 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.
The J&K government has defended the provision saying it had become a settled law. “The instant petition seeks to upset a settled law, accepted and complied with by all,” it said in its affidavit in response to the petition.