Latest News: Is Article 35A affects ‘Basic Structure’ of Constitution: Supreme Court

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The Bench posted the case for listening in the week commencing August 26.

Latest News: Chief Justice of India Dipak Misra on 06/08/2018 [Monday] personally observed the Supreme Court will analyse whether Article 35A, which gives special status to the State and people of Jammu and Kashmir, is violative of the ‘Basic Structure’ of the Indian Constitution.

‘Basic Structure’ is a common word coined by a 13 judges Bench in the historic Keshavananda Bharati matter to add a catena of fundamental rights, including the right to equality, non-discrimination, liberty, life and dignity, enshrined and kept in the Constitution.

The Centre, described by Attorney-General K.K. Venugopal, persisted that the case should be adjourned as an interviewer is carrying on dialogues with the State’s stakeholders.

The State of J&K, presented by Additional Solicitor General Tushar Mehta, also sought an adjournment.
However, the Bench led by Chief Justice Misra and including Justice A.M. Khanwilkar is missing its third member, Justice Dhananjaya Y. Chandrachud. Justice Dhananjaya Y. Chandrachud is on leave.

Chief Justice Misra stated that after the problem is being listened by a three-judge Bench and one of them is absent, the case should be adjourned.

“The objection to Article 35A is being listened by a three-judge Bench. The three-judge Bench will determine whether the case should be transferred to a Constitution Bench. Now, as you see, the other judge is absent and so we have to listen to the case some another day,” Chief Justice Misra addressed the claimant lawyers who opposed to an adjournment.

One of them even complained that Jammu & Kashmir is virtually shut down before every Supreme Court hearing. About this, Chief Justice Misra said the challenge is to a provision, Article 35A, which has been completed for over 60 years and the petitions were filed in only 2014. The Chief Justice said the case has proceeded to the extent of the question of connecting by a three-judge Bench to a Constitution Bench.

(Latest News: Is Article 35A affects ‘Basic Structure’ of Constitution: Supreme Court)

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Latest News: Is Article 35A affects ‘Basic Structure’ of Constitution: Supreme Court
Chief Justice of India Dipak Misra

The Bench posted the case for listening in the week commencing August 26. The Article 35A gives the Jammu and Kashmir State Legislature a carte blanche to select the ‘permanent residents’ of the State and grant them special rights and opportunities in State public sector jobs, purchase of property within the State, scholarships and other public aid and welfare programmes. The requirement mandates that no act of the State legislature coming below the ambit of Article 35A can be questioned for violating the Indian Constitution or any other law of the land.

The three-judge Bench would choose whether or not to transfer the issue to the Constitution Bench.

One of the main processes of petitions is filed by NGO We the Citizens, which examines the validity of both Article 35A and Article 370. It argues that four representatives from Kashmir were part of the Constituent Assembly concerned in the drafting of the Constitution and the State of Jammu and Kashmir was never granted any special status in the Constitution.

Article 370 was merely a ‘temporary provision’ to help bring normalcy in Jammu & Kashmir and encourage the democracy in that State. The Constitution creators did not think Article 370 to be a tool to bring permanent improvements, like Article 35A, in the Constitution.

The petition stated that Article 35 A is opposed to the “very spirit of oneness of India” as it constitutes a “class within a class of Indian citizens.” Restricting the people from other States from taking employment or buying property within Jammu & Kashmir is a violation of fundamental rights following Articles 14, 19 and 21 of Indian Constitution.

(Latest News: Is Article 35A affects ‘Basic Structure’ of Constitution: Supreme Court)

(Latest News: Is Article 35A affects ‘Basic Structure’ of Constitution: Supreme Court)

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