BJP Leader Moves SC Seeking Scrapping

Of Article 35A [Read Petition]

BY: MEHAL JAIN 15 AUG 2018 1:59 PM

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SHARES

It has been advanced that Article 35A was not inserted by following the due
procedure prescribed for the amendment of the Constitution under Article 368;
Article 370 confers no legislative or executive powers on the President to add or
delete any provision of the Constitution which is the exclusive function of the
Parliament. 

Short of the August 27 date when a three-judge bench headed by Chief Justice

Dipak Misra will consider the question whether the challenge to the validity of
Article 35A is to be referred to a constitution bench, advocate and BJP leader
Ashwini Upadhyay has also moved the Supreme Court praying that the provision
be struck down.

The State of Jammu and Kashmir was granted a special status by incorporating
Article 35A in the Constitution vide an order of President Rajendra Prasad in 1954
on the advice of the Jawaharlal Nehru Cabinet. The provision gives the State
Legislature a carte blanche to determine the ‘permanent residents’ of the state and
grant them special rights and privileges in state public sector jobs, acquisition of
property within the state, scholarships and other public aid and welfare
programmes. Article 35A further saves such acts from being challenged for
violation of the Constitution or any other law of the land.

In his petition, Upadhyay has attacked the Article for being in infringement of
Articles 14, 15, 16, 19 and 21, since:

•  Non-residents of the Jammu & Kashmir are debarred from buying properties,
getting a government job or voting in the elections;

• The industrial sector and the whole private sector suffers due to the property
ownership restrictions. Good doctors and experienced engineers and teachers do
not come to the state for the same reason;

•  The impugned provision facilitates a violation of the right of a woman to ‘marry

a man of her choice’ by not giving her heirs any right to property if she marries a
man not holding Permanent Resident Certificate (PRC);

• There is free and unrestrained violation of the fundamental rights of the

Scheduled Castes and Scheduled Tribes who have lived in J&K for generations.
Dalits and Valmikis, who were brought to the state in the 1950s, were granted the
 PRC subject to the condition that they and their future generations would
continue to serve as safai-karmacharis (scavengers);

• Children of other states are not even entitled to admission in the medial,
engineering and professional colleges and universities;

Article 35A also ruins the status of West Pakistani refugees. Being Indian citizens,
they are not stateless, but being non-permanent residents of J&K, they cannot enjoy
the fundamental rights under Articles 14, 15, 16, 19 and 21 and the privileges, as
enjoyed by permanent residents of the state.

It has been advanced that Article 35A was not inserted by following
the due procedure prescribed for the amendment of the
Constitution under Article 368; Article 370 confers no legislative or
executive powers on the President to add or delete any provision of
the Constitution which is the exclusive function of the Parliament.
Article 35A was never presented before the Parliament which means that the
President had bypassed the legislature by the order incorporating the Article. This
would also imply that the amending power of the Parliament under Article 368 of
the Constitution was abridged in its application to J&K.

When two similar petitions-- by NGO ‘We, the Citizens’ and advocate Charu Wali
Khanna-- had come up for hearing on August 6, the Chief Justice had asserted that
there may be no further arguments beyond whether Article 35A is violative of the
basic structure of the Constitution.
Read the Petition Here

Page 1 of 23

WWW.LIVELAW.IN

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO 960 OF 2018

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

ASHWINI KUMAR UPADHYAY …PETITIONER

VERSES

UNION OF INDIA & ANOTHER ...RESPONDENTS

Page 1 / 23
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Topics : Article 35A | Article 368 | Article 370 | BJP leader Ashwini
Upadhyay | Chief Justice Dipak Misra | Supreme Court