Chief Justice of India (CJI) Dipak Misra and Justice A M Khanwilkar said that a three-judge bench needs to determine whether this matter is required to be referred to a five-judge bench. Both the Centre and J&K sought an adjournment of hearing as a Panchayat election process is underway in the state.
Therefore, the apex court said the petitions challenging Article 35A’s validity will be listed before a three -judge bench in the week starting August 27, and that bench would determine whether the matter is required to be referred to a five-judge one.
The CJI further said that under Article 145 of the Constitution any challenge to the validity of a constitutional provision needs to be adjudicated by a Constitution bench to examine whether Article 35 violated the basic structure of Constitution.
An NGO, We the Citizens, challenged 35A in the SC in 2014 on grounds that it was not added to the Constitution through amendment under Article 368. It was never presented before Parliament, and came into effect immediately, the group argued.
In another case in the SC last year in July, two Kashmiri women argued that the state’s laws, flowing from 35A, had disenfranchised their children.
Responding to their plea, the Supreme Court sent notices to the Centre and state in July 2017. Advocate General K Venugopal told the bench of the then Chief Justice of India (CJI) J S Khehar and Justice D Y Chandrachud that the petition against Article 35A raised “very sensitive” questions that required a “larger debate”.
On May 14 this year, the SC deferred hearing on the petitions challenging Article 35A. The Centre told the bench that the matter is very sensitive and since the interlocutor is making efforts for a solution, the court should not pass any interim order at present as it would be counterproductive.
Representing the J&K government, advocate Rakesh Dwivedi said SC has already settled the issue by ruling that Article 370 of the Constitution has already attained permanent status. “In any event as the issue required interpretation of various constitutional provisions, let there be no interim order,” Dwivedi appealed to the bench.
Senior advocate Ranjit Kumar, counsel to a petitioner, countered and said: “It is a strange situation in J&K as persons from Pakistan can come and settle in the state under a law but those who have been staying for generations cannot even get a government job.”