New Delhi, Nov 26:
The Supreme Court on Monday refused to entertain a fresh petition on Article 370, which gives special autonomous status to Jammu and Kashmir. The apex court said that the issues raised in it were already part of the pending pleas. The petition was filed by advocate Vijay Mishra and Sandeep Lamba. In their petition, Mishra and Lamba had sought a declaration that Article 370 of the constitution had lapsed with the dissolution of constituent assembly of Jammu and Kashmir on January 26, 1957 and it cannot be treated as mandatory for exercise of powers of the President. A bench comprising Chief Justice Ranjan Gogoi and Justice Ajay Rastogi had asked the petitioner as to why he wanted to increase the number of petitions on the issue. “We have heard the petitioner. The issues raised in the petition are part of the petitions pending,” said the bench. The plea has also sought that the Constitution of Jammu and Kashmir be declared as “arbitrary, unconstitutional and void”, claiming that it was against the supremacy of the Indian Constitution and contrary to the dictum of “One Nation, One Constitution, One National Anthem and One National Flag”. It has sought to declare as arbitrary some provisions of the Jammu and Kashmir Constitution, which deals with permanent residency and flag of the valley among other issues, for being violative of the Preamble and the Indian Constitution. The petition has said that continuance of two parallel constitutions, one for the Centre and other for the state of Jammu and Kashmir, “reeks of a weird dichotomy” as most of the provisions of the Indian Constitution has already been extended to the state.
It has alleged that due to vote bank politics, successive governments did nothing to repeal Article 370 and the Constitution of Jammu and Kashmir was adopted much after the Indian Constitution came into force.
It also added that the instrument of accession of October 26, 1947 does not talk about separate Constitution or constituent assembly for the state.
Earlier on November 16, the Supreme court had said that it will hear a plea challenging the validity of Article 370 of the Constitution in April.
A bench of Justices DY Chandrachud and M R Shah said it will hear the matter in the first week of April 2019 after Attorney General K K Venugopal, appearing for the Centre, sought adjournment on the ground that the current situation is very sensitive.
Senior advocate Rakesh Dwivedi and advocate Shoeb Alam, appearing for Jammu and Kashmir said that a letter has been circulated seeking adjournment due to the ongoing nine-phase Panchayat polls in the state.
To this, the bench said that it can tag the matter along with a batch of pending petitions challenging Article 35A of the Constitution, under which special rights and privileges are granted to the “permanent residents” of the state.
The suggestion of the bench was opposed by the counsels for the state saying that the two issues are different entirely and the plea should not be tagged along with Article 35A pending petitions.
The bench then posted the matter for further hearing in the first week of April, 2019.
On April 3, the apex court had said that Article 370 of the Constitution is not a temporary provision.
The top court had said that in its earlier verdict of 2017 in the SARFESI case, it has been already held that Article 370 was “not a temporary provision”.
“The issue concerned is covered by the judgement of this court in the 2017 SARFAESI matter, where we have held that despite the headnote of Article 370, it is not a temporary provision,” the court had said.
The court was hearing an appeal filed by petitioner Kumari Vijayalakshmi Jha, against the Delhi High Court’s April 11, 2017 order dismissing the plea seeking a declaration that Article 370 is temporary in nature.
The petitioner had claimed before the high court that Article 370 was a temporary provision that had lapsed with the dissolution of the Constituent Assembly in 1957.
The petition had said that the continuance of the temporary provision of Article 370 even after dissolution of Constituent Assembly of J&K, and that of J&K Constitution which has never got the assent of the President of India or Parliament or the government of India, “amounts to fraud on the basic structure of our Constitution”
