Should Art 35A pleas go to Constitution bench? 3-judge SC bench to decide

The Supreme Court on Monday said that a three-judge bench would decide whether the pleas challenging Article 35A, which provides special rights and privileges to the natives of Jammu and Kashmir, should be referred to a five-judge Constitution bench for examining the larger issue of alleged violation of the doctrine of basic structure of the Constitution.

A bench comprising Chief Justice Dipak Misra and Justice A Khanwilkar adjourned the crucial hearing on as many as five petitions "to the week commencing from August 27" on the grounds that they pertained to the challenge to a Constitutional scheme and could not be heard as the third judge, Justice D Y Chandrachud, was not present on Monday.

 

As the matter came up on Monday in the backdrop of protests in Jammu and Kashmir on the issue, the state government sought adjournment of the hearing citing upcoming local body elections in the state and was supported by the Centre.

The lawyers for petitioners, however, vehemently opposed the adjournment plea and sought an early hearing after the bench clarified that it cannot take up the matter due to lack of quorum.

"Once you have challenged the constitutional validity of Article 35-A, a three judge bench would decide whether they have to go before a Constitution bench. A three-judge bench will determine it. A three-judge bench has been dealing with it," the CJI said.

"A three-judge bench will consider whether it has to go before a Constitution bench," the court said, making it clear that the hearing has to be adjourned as Justice Chandrachud, one of the three judges of the bench, was not present.

The bench made clear that under Article 145 (special provisions as to disposal of questions relating to constitutional validity of laws) of the Constitution, any challenge to validity of a constitutional provision needed to be adjudicated upon by a larger bench.

The court, in its historic Kesavananda Bharati judgement in 1973, had propounded the basic structure doctrine and had said that the Constitution has certain basic features like fundamental rights and judicial independence which cannot be altered even by Parliament.

Article 35-A, which was incorporated in the Constitution by a 1954 Presidential Order, accords special rights and privileges to the citizens of Jammu and Kashmir and bars people from outside the state from acquiring any immovable property in the state.

It also denies property rights to a woman who marries a person from outside the state. The provision, which leads to such women from the state forfeiting their rights over property, also applies to their heirs.

All eyes were on the apex court on Monday as the matter came a day after civil society organisations and business and trade bodies kept up their protests against the pleas challenging the validity of Article 35A.

At the outset, Additional Solicitor General Tushar Mehta, who was assisted by lawyers D C Raina and Shoeb Alam, appeared on behalf of the state government and sought adjournment of the hearing on the ground of local body elections in the state likely to be held in September.

Attorney General K K Venugopal, representing the Centre, also supported the submission.

The petitioners, opposed to the Article 35A, including NGO 'We the Citizens', which was represented by lawyer Barun Kumar Sinha, opposed the adjournment plea of the state government.

The court said the three judge bench needed to determine whether these matters were required to be referred to a five-judge Constitution bench.

When some lawyers insisted that an urgent hearing was needed, the bench asked, "Tell us, when the article came, Article 35A, came into the Constitution in 1954".

When some advocates pointed out ongoing lawyers' protests in favour and against the provision, the court said, "We are not concerned". It reiterated the matters have to be heard by a three-judge bench, which was not assembling today.

It said in "matters like this" where constitutional scheme was under challenge, the court would like to hear Attorney General K K Venugopal and even the counsel for state will have "very limited" and "minimal" role to address.

The court's observation that the state has a "minimal role" in the judicial scrutiny of Article 35A, drew sharp observation from the counsel for the state government and others like National Conference and CPI(M).

"The state government has a very key and pivotal role in it," senior advocate Rakesh Dwivedi, appearing for one of the parties, said.

The bench then adjourned the hearing, saying it would hear "preliminary arguments" in the week commencing from August 27. The apex court is hearing a batch of pleas seeking quashing of the article which confers special status to permanent residents of the state.

Political parties, including the National Conference and the CPI-M, have moved the Supreme Court in support of Article 35-A that empowers the state assembly to define "permanent residents" for bestowing special rights and privileges to them.

The state government, while defending the Article, had cited two verdicts by the Constitution benches of the Supreme Court in 1961 and 1969, which had upheld the powers of the president under Article 370(1)(d) of the Constitution to pass constitutional orders. The Article was incorporated in the Constitution in 1954 by an order of president Rajendra Prasad on the advice of the then Jawaharlal Nehru Cabinet.