Special status to J-K: Article 370 not a temporary provision, says Supreme Court

The Supreme Court was hearing an appeal filed by a petitioner against the Delhi High Court’s April 11, 2017 order dismissing the plea seeking a declaration that Article 370 is temporary in nature.

The Centre asked for and received three weeks time from the Supreme Court on Tuesday to respond to a petition challenging the validity of Article 370 of the Constitution that confers special status on the state of Jammu and Kashmir, even as the top court said that the issue needs no consideration because a 2016 judgment had settled the issue.

Senior advocate Rajeev Dhavan and advocate Shoeb Alam appearing for the Jammu and Kashmir government clarified that other matters which are pending before the apex court relate to Article 35 A of the Constitution and not Article 370 as submitted by the ASG.(PTI file photo)

A bench of justices AK Goel and Rohinton Nariman told the petitioner’s lawyer that a 2016 judgement had held Article 370 was not a temporary provision. “The issue is already decided in our judgment where we have said that despite the fact the head note says it’s a temporary provision, it’s not,” Justice Nariman told the petitioner’s counsel, Anil Kumar Jha.

The Bharatiya Janata Party has been consistent in its opinion that Article 370 should be scrapped, although the BJP-led National Democratic Alliance government informed Parliament last month that there are currently no plans to do so.

Justice Nariman was part of the bench led by Justice Kurien Joseph that in December 2016 said: “Despite the fact that it is, therefore, stated to be temporary in nature, sub- clause (3) of Article 370 makes it clear that this article shall cease to be operative only from such date as the President may by public notification declare. And this cannot be done under the proviso to Article 370 (3) unless there is a recommendation of the Constituent Assembly of the State so to do,” the judgement said.

Additional solicitor general Tushar Mehta asked the court to tag Jha’s petition with the those challenging the validity of Article 35A of the Constitution. Added to the constitution through a Presidential order of 1954, Article 35A empowers the Jammu and Kashmir Assembly to define the state’s permanent residents and their special rights and privileges.

Jammu and Kashmir government counsel, senior advocate Rajeev Dhawan and Shoeb Alam objected to this after which Mehta was given time to come back with a formal response.

Even Jha did not support the Centre’s move. “This is only a delaying tactic,” he said.

He added that Justice Joseph and Nariman’s verdict was “per incuriam” (something that has a lack of regard for the law or facts) because it was against the Keshvanand Bharti judgement that evolved and endorsed the basic structure of the Constitution.

The SC had on August 8, 2017 issued notice to the state and the central governments to respond to Jha’s petition challenging an April 2017 order of the Delhi High Court rejecting a plea against Article 370.

The Delhi High Court had on April 11 rejected the petition on the ground that the SC had already dismissed a petition on the issue.

The continuance of Article 370 —- a temporary provision —- even after dissolution of the state’s Constituent Assembly “amounts to fraud on the basic structure of our Constitution” as its Constitution never got the assent of the President or Parliament or the Government of India, the petition argued.