Article 35 (A) included in the Constitution of India through Constitution (Application to Jammu and Kashmir) Order 1950 under Article 370 bars non-state subjects from either purchasing landed property or seeking jobs in the state of J&K. It also prevents non-state subjects from voting in state assembly elections or Panchayats. Right wing parties have been terming it discriminatory. Recently a non-governmental organization Jammu and Kashmir Study Centre has challenged the particular section of the constitution in the Supreme Court. Given the long term impact the petition could have on J&K, Kashmir Life is reproducing the draft petition (without any annexure) here in immense public interest.
SYNOPSIS AND LIST OF DATES
The instant writ petition is being preferred under Article 32 of the Constitution of India challenging the constitutionality and validity of para (j) of the Constitution (Application to Jammu and Kashmir) Order 1954 whereby new Article 35 A has been added to the Constitution of India whereby the constitution has been amended by the President of India invoking jurisdiction / power under Article 370 (1) of the Constitution of India. The Article 35 A is discriminatory in nature and it is in violation of Article 14, 16 & 19 of the Constitution of India in as much as Article 35 A has been brought on the statute book by the President of India beyond his power and jurisdiction.
To appreciate the constitutional issues raised in the writ petition, the relevant dates and events are narrated hereinafter:
1935: The Govt. of India Act, 1935 came into force w.e.f. 2nd August 1935.
18.07.1947: On 18.07.1947, the Indian Independence Act, 1947 was enacted by the British parliament.
22.10.1947: That on 22.10.1947, the tribal raiders invaded the territory of the State; and this invasion presented a problem of unprecedented gravity before the Maharaja.
27.10.1947: To remove any doubt, confusion or ambiguity, fresh instrument of accession was signed by the ruler of Kashmir i.e. Maharaja Hari Singh on 27.10.1947.
26.01.1950: That constitution order 10 namely Constitution (Application to Jammu & Kashmir) Order 1950 was issued by the President of India on 26.01.1950 exercising power u/a 370 (1) (i) (b) of the Constitution of India.
20.03.1952: The President of India issued amendment to the Constitution (Application to Jammu & Kashmir) Order 1952 vide constitution order 39 dated 20.03.1952.
1954: That the Constitution (Application to Jammu & Kashmir) Order 1954 was issued by the President of India exercising power under clause 1 of Article 370 of the Constitution of India whereby new Article 35A was brought to the Constitution of India.
1971: That by the Constitution (26th Amendment Act, 1971), new sub-Article was added in Article 366, defining the word “Ruler”.
Hence, the instant Writ Petition
IN THE SUPREME COURT OF INDIA
(CIVIL WRIT JURISDICITON)
WRIT PETITION (C) ______OF 2014
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
We the citizens,
Registered under Societies Registration Act,
Through its President,
Namely Shri Sandeep Kulkarni
Having its regd. Office
At 215, Plot No. 11,
Vardhman KP Plaza, KP Block,
Pitampura, Delhi-110034 …Petitioner
Versus
1. Union of India
Through its Cabinet Secretary,
Ministry of Home Affairs,
Govt. of India,
North Block, New Delhi
2. The state of Jammu & Kashmir,
Through Chief Secretary,
Govt. of Jammu & Kashmir,
Srinagar (J&K) …Respondents
A WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA PRAYING FOR DECLARATION IN RESPECT OF INCLUSION OF ARTICLE 35 A IN THE CONSTITUTION THROUGH THE CONSTITUTION (APPLICATION TO JAMMU & KASHMIR) ORDER 1954 ISSUED BY THE RESPONDENT NO. 1 AND TO DECLARE THE SAID AMENDMENT OF THE CONSTITUTION AS UNCONSTITUTIONAL AND TO PASS SUCH OTHER OR FURTHER ORDERS AS THIS HON’BLE COURT MAY DEEM FIT AND PROPER.
To,
The Hon’ble Chief Justice of India
And his Companion Justices of
The Hon’ble Supreme Court of India
The humble petitioner above named
MOST RESPECTFULLY SHOWETH:-
1. That the petitioner “We the Citizens”, a non-govt. organization located at 215, Plot No. 11, Vardhaman K.P. Plaza, K.P. Block, Commerical Complex, Pitampura, New Delhi-110034 has been registered under The Societies Registration Act of 1860 on 30.07.2013 vide Registration No. S/1700/SDM/NW/2013 by the Registrar of the Societies, District (North-West), Govt. of NCT of Delhi and is engaged in the nongovernmental activities for last one year. The aims and objects of petitioner’s organization is to promote the interest of citizens of this country. The Society receives no grant or assistance from any government. The president of the petitioner society is a citizen of India and has been duly authorized by the Petitioner organization for filing of the instant petition.
1A. That the petitioner has not approached the concerned authorities prior to the filing of the instant writ petition.
2. That the petitioner has preferred the instant writ petition under article 32 of the Constitution of India in the shape of Public Interest Litigation challenging the addition of new article i.e. Article 35 A by way of Constitution (Application to Jammu & Kashmir) Order 1954 by the President of India exercising power under Article 370 (1) (d) of the Constitution of India. A reading of Article 370 of the Constitution of India would show that there is no power conferred on the President of India to amend the constitution by adding new article. The petitioner has examined in detail the scope and ambit of Article 370 (1) (d) of the Constitution of India. The petitioner is unable to find out as to whether the President can amend the constitution by incorporating new Article by exercising power under Article 370 (1) (d) of the Constitution. The incorporation of new Article namely Article 35 A to the Constitution of India has been effected vide Constitution (Application to Jammu & Kashmir) Order 1954 which is beyond the jurisdiction and power of respondent no. 1 in as much as the said provision namely Article 35 A is unconstitutional. A copy of Constitution (Application to Jammu & Kashmir) Order 1954 is annexed herewith as
ANNEXURE P-1 (PAGE NO. to ).
3. BRIEF FACTS
I. In dealing with the instant writ petition, it is necessary to narrate in some detail the events which took place in Kashmir and the Constitutional changes. In 1925 Maharaja Hari Singh succeeded Maharaja Pratap Singh as the Ruler of Kashmir. It appears that for some time prior to 1934 there was public agitation in Kashmir for the establishment of responsible government. Presumably as a sequel to the said agitation Maharaja Hari Singh issued Regulation 1 of 1991 (1934). The Regulation began with the statement of policy that it was the declared intention of the Maharaja to provide for the association of his subjects in the matter of legislation and the administration of the State and that it was in pursuance of the said intention that the Regulation was being promulgated. This Regulation consisted of 46 sections which dealt with the legislative, executive and judicial powers of the Maharaja himself, referred to the subjects which should be reserved from the operation of the Regulation, made provision for the constitution of the Legislature of the State, conferred authority on the Council to make rules for specified purposes and referred to other relevant and material topics. It is relevant to refer to only two sections of this Regulation. Section 3 provides that all powers legislative, executive and judicial in relation to the State and its government are hereby declared to be, and to have been always, inherent in and possessed and retained by his highness the Maharaja of Jammu & Kashmir and nothing contained in the Regulation shall affect or be deemed to have affected the right and prerogative of His Highness to make and pass regulations, proclamations and ordinances by virtue of his inherent power. Section 30 lays down that Do measure shall deemed to have been passed by the Praja Sabha until and unless his highness has signified his assent thereto. The Regulation leaves it to the absolute discretion of His Highness whether to assent to such a measure or not. Five years later the Maharaja promulgated the Jammu & Kashmir Constitution Act, 14 of 1996 (1939). From the preamble to this Constitution it appears that, before its promulgation, the Maharaja had issued a proclamation on February 11, 1939, in which he had announced his decision as to the further steps to be taken to enable his subjects to make orderly progress in the direction of attaining the ideal of active co-operation between the executive and the Legislature of the State in ministering to the maximum happiness of the people. In accordance with this desire the text of the Constitution contained in Regulation 1 of 1991 was thoroughly overhauled and an attempt was made to bring the amended text into line with that of similar Constitutions of its type. This Constitution is divided into six parts and includes 78 sections. Part 1 is introductory. Part 2 deals with the executive; Part 3 with the Legislature; Part 4 with the Judicature; Part 5 contains miscellaneous provisions; and Part 6 provides for repeal and saving and includes transitional provisions. It is significant that Section 5 of this Act, like section 3 of the earlier Regulation, recognizes and preserves all the inherent powers of His Highness, while section 4 provides that the State was to be governed by and in the name of His Highness, and all rights, authority and jurisdiction which appertain or are incidental to the government of the State are exercisable by His Highness except in so far as may be otherwise provided by or under the Act or as may be otherwise directed by His Highness. The other provisions of the Act are all subject to the over- riding powers of His Highness specifically preserved by section 5. In substance the Constitutional powers of the Maharaja under the present Act were exactly the same as those under the earlier Act. While the State of Jammu & Kashmir was being governed by the Maharaja and the second Constitution as amended from time to time was in operation, political events were moving very fast ‘in India and they culminated in the passing of the Indian Independence Act, 1947. Under section 7 (1) (b)- of this Act the suzerainty of His Majesty over the Indian States lapsed and with it lapsed all treaties and agreements in force at the date of the passing of the Act between His Majesty and the Rulers of the Indian States, all obligations of His Majesty existing at that date towards Indian States or the Rulers thereof, and all powers., rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian states by treaty, grant, usage, sufferance or otherwise. Thus, with the lapse of British paramountcy the State of Jammu & Kashmir, like the other Indian States, was theoretically free from the limitations imposed by the said paramountcy subject to the provisions of the proviso just mentioned.
II. That the Govt. of India Act, 1935 came into force w.e.f. 2nd August 1935. Section 2 of the Govt. of India Act, 1935 provides for rights, authority and jurisdiction belonging to his majesty the king, emperor of India in respect of the Govt. of the territories in India. The provision of section 2 (1) of the said act are reproduced herein below:
“(1) All rights, authority and jurisdiction heretofore belonging to His Majesty the King, Emperor of India, which appertain or are incidental to the Government of the territories in India for the time being vested in him, and all rights, authority and jurisdiction exercisable by him in or in relation to any other territories in India, are exercisable by His Majesty, except in so far as may be otherwise provided by or under this Act, or as may be otherwise directed by His Majesty:
Provided that any powers connected with the exercise of the functions of the Crown in its relations with Indian States shall in India, if not exercised by His Majesty, be exercised only by, or by persons acting under the authority of, His Majesty’s Representative for the exercise of those functions of the Crown.”
Section 5 of the Govt. of India Act, 1935, provides for establishment of federation and accession of Indian States. The establishment of federation and accession of Indian states are provided under section 5 & 6 of the said act. The provisions of Section 5 & 6 of the Govt. of India Act, 1935 are reproduced herein below:
5-(1) It shall be lawful for His Majesty, if an address in that behalf has been presented to him by each House of Parliament and if the condition herein after mentioned is satisfied, to declare by Proclamation that as from the day therein appointed there shall be united in a Federation under the Crown, by the name of the Federation of India.
(a) the Provinces hereinafter called Governors’ Provinces; and
(b) the Indian States which have acceded or may thereafter accede to the Federation;
and in the Federation so established there shall be included the Provinces hereinafter called Chief Commissioners Provinces.
(2) The condition referred to is that States-
(a) the Rulers whereof will, in accordance with the provisions contained in Part II of the First Schedule to this Act, be entitled to choose not less than fifty-two members of the Council of State; and
(b) the aggregate population whereof, as ascertained in accordance with the said provisions, amounts to at least one-half of the total population of the States as so ascertained, have acceded to the Federation.
6.-(1) A State shall be deemed to have acceded to the Federation if His Majesty has signified his acceptance of an Instrument of Accession executed by the Ruler thereof, whereby the Ruler for himself, his heirs and successors-
(a) declares that he accedes to the Federation as established under this Act, with the intent that His Majesty the King, the Governor-General of India, the Federal Legislature, the Federal Court and any other Federal authority established for the purposes of the Federation shall, by virtue of his Instrument of Accession, but subject always to the terms thereof, and for the purposes only of the Federation, exercise in relation to his State such functions as may be vested in them by or under this Act; and”
A perusal of the provision of section 2, 5 & 6 alongwith schedule 1 of the Govt. of India Act, 1935 which includes the name of states in the union of states wherein Kashmir has been included at serial no. 3 under the heading the council of states and the federal assembly representatives of the Indian states. A copy of the first schedule of the Govt. of India Act, 1935 is annexed herewith as ANNEXURE P-2 (PAGE NO. to ).
Thus it is apparent that Kashmir is part of Indian dominion like other states. Prior to the year 1935, accession was complete which is evident from the provisions made and schedule of the Govt. of India Act, 1935.
III. That on 18.07.1947, the Indian Independence Act, 1947 was enacted by the British parliament. The preamble of the Indian Independence Act, 1947 reads thus:
“An Act to make provision for the setting up in India of two independent Dominions, to substitute other provisions for certain provisions of the Government of India Act,1935, which apply outside those Dominions, and to provide for other matters consequential nor connected with the setting up of those Dominions.”
Section 2 of Indian Independence Act, 1947 provides for the territories of India. The provisions of section 2 of the Indian Independence Act, 1947 are reproduced herein under:
“1. Subject to the provisions of sub-sections (3) and (4) of this section, the territories of India shall be the territories under the sovereignty of His Majesty which, immediately before the appointed day, were included in British India except the territories which under sub-section (2) of this section are to be the territories of Pakistan.
2. Subject to the provisions of sub-sections (3) and (4) of this section the territories of Pakistan shall be (a) the territories which on the appointed day, are included in the Provinces of East Bengal and West Punjab as constituted under the two following sections; (b) the territories which, at the date of the passing of this Act, are included in the Province of Sind and the Chief Commissioner’s Province of British Baluchistan; and (c) if, whether before or after the passing of this Act but before the appointed day, the Governor General declares that the majority of the valid votes cast in the referendum which, at the date of the passing of this Act, is being or has recently been held in that behalf under his authority in the North-West Frontier Province are in favour of representatives of that Province taking part in the Constituent Assembly of Pakistan, the territories which, at the date of the passing of this Act, are included in that Province.
3. Nothing in this section shall prevent any area being at any time included in or excluded from either of the new Dominions, so, however, that–(a) no area, not forming, part of the territories specified in sub-section (1) or, as the case may be, sub-section (2), of this section shall be included in either Dominion without the consent of that Dominion; and (b) no area which forms part of the territories specified in the said sub-section (1) or, as the case may be, the said sub-section. (2), or which has after the appointed day been included in either Dominion, shall be excluded from that Dominion without the consent of that Dominion.
4. Without prejudice to the generality of the provisions of sub-section (3) of this section, nothing in this section, shall be construed as prevention, the accession of Indian States to either of the now Dominions.”
Section 7 of the Indian Independence Act, 1947 provides for the consequences of the setting up of the new dominions. The provisions of section 7 (i) are reproduced herein below:
“7.-(1) As from the appointed day-
(a) His Majesty’s Government in the United Kingdom have no responsibility as respects the government of any of the territories which, immediately before that day, were included in British India;
(b) the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States, all function exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States or the rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise; and
(c) there lapse also any treaties or agreements in force at the date of the passing of this Act between His Majesty and any persons having authority in the tribal areas, any obligations of His Majesty existing at that date to any such persons or with respect to the tribal areas, and all powers, rights, authority or jurisdiction exercisable at that date by His Majesty in or in relation to the tribal areas by treaty, grant, usage, sufferance or otherwise:
Provided that, notwithstanding anything in paragraph (b) or paragraph (c) of this subsection, effect shall, as nearly as may he, continue to be given to the provisions of any such agreement as is therein referred to which relate to customs, transit and communications, .posts and telegraphs, or other like matters, until the provisions in question are denounced by the Ruler of the Indian State or person having authority in the tribal areas on the one hand, or by the Dominion or Province or other part thereof concerned on the other hand, or are superseded by subsequent agreements.”
The reading of section 7 (i) (a) provides that His Majesty’s Government in the United Kingdom have no responsibility as respects the government of any of the territories which, immediately before that day, were included in British India.
Section 7 (i) (b) provides that the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States.
A reading of proviso to section 7 (i) would show that notwithstanding anything in paragraph (b) or paragraph (c) of this subsection, effect shall, as nearly as may he, continue to be given to the provisions of any such agreement as is therein referred to which relate to customs, transit and communications, posts and telegraphs, or other like matters, until the provisions in question are denounced by the Ruler of the Indian State or person having authority in the tribal areas on the one hand, or by the Dominion or Province or other part thereof concerned on the other hand, or are superseded by subsequent agreements.
IV. That by the Constitution (26th Amendment Act, 1971), new sub-Article was added in Article 366, defining the word “Ruler”. Article 366 (22) of the Constitution of India reads thus:
“(22) Ruler means the Prince, Chief or other person who, at any time before the commencement of the Constitution (Twenty sixth Amendment) Act, 1971, was recognised by the President as the Ruler of an Indian State or any person who, at any time before such commencement, was recognised by the President as the successor of such Ruler;”
The effect of this definition is that the ruler who enter into Merger Agreement (Instrument of Accession) or the like ceased to be a ruler for all purposes. AIR 1961 SC 775, Pravir v. State of M.P. Thus, a effect of Instrument of Accession became inoperative after 26th Amendment in the Constitution of India in the year 1971.
Therefore, the special treatment to the State of Jammu & Kashmir in the garb or Article 35 A of the Constitution of India ceased after this 26th amendment in the constitution.
V. That the Article 368 of the Constitution of India provides for amendment of constitution by the parliament. In this connection, reference may be made to Article 368 (i) which reads thus:
“368 (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this Article.”
A perusal of Article 368 (i) of the Constitution of India would show that any provision contained in the constitution of India shall be amended or varied or repealed only by the parliament alone. By this provision, act of amendment, variation or repeal is excluded by any other contained in the constitution including Article 370 of the Constitution of India.
Therefore, by bringing new Article in the Constitution by the President under Article 370 of the Constitution in respect of Jammu & Kashmir is beyond the jurisdiction and power of the President of India. For that matter, parliament alone is competent and empowered to amend the constitution. Therefore, the exercise of power by the President of India to amend the constitution by incorporating new Article i.e. Article 35 A is unconstitutional.
VI. That it is important to refer here the case of Puranlal Lakhanpal vs. The President Of India And Others, 1962 SCR (1) 688, which has been decided by a five judges constitution bench of this Hon’ble Court. In this case, a challenge was made by the petitioner, that amendment made in Article 81 by the Presidential order namely Constitution (Application to Jammu & Kashmir) order 1954 (Para 5 (c)) by exercising power under Article 370 (1) of the Constitution of India. In this case, this Hon’ble Court considered the amendment in Article 81 made by the President of India through the order of 1954 exercising power under Article 370 and the argument of the petitioner to the effect that the President does not have power to bring radical transformation in the existing provisions of the Constitution by exercising power under Article 370 (1) of the Constitution of India in the garb of modification and this Hon’ble Court while rejecting the petition made following observation:
“Thus in law the word “modify” may just mean “vary”, i.e., amend; and when Art. 370(l) says that the President may apply the provisions of the Constitution to the State of Jammu and Kashmir with such modifications as he may by order specify it means that he may vary (i.e., amend) the provisions of the Constitution in its application to the State of Jammu and Kashmir. We are therefore of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word ‘modification” used in Art. 370(l) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Art. 370(1) only to such modifications as do not make any “radical transformation”. We are therefore of opinion that the President had the power to make the modification which he did in Art. 81 of the Constitution.”
However, in the aforesaid judgment the discussion before the Hon’ble Constitution Bench was limited to the extent of amendment in existing provision of the Constitution of India i.e. Article 81. The Hon’ble Constitution Bench did not consider as to whether under Article 370 (1) in the context of modification or exception, a new Article can be added in the Constitution of India.
An another constitution bench of this Hon’ble Court also dealt with the power of the President under Article 370 in the case of Sampat Prakash v. State of Jammu & Kashmir & Anr. 1970 SCR 2 365 and following the judgment of the earlier Constitution Bench in the case of Puranlal Lakhanpal dismissed the petition. Again, there was no discussion about the power of the president under Article 370 to amend the constitution by incorporating new Article in respect of Jammu & Kashmir.
However, in the case of Puranlal Lakhanpal and Sampat Prakash, this Hon’ble Court considered and explained the meaning of the word modification as used in the Article 370 of the Constitution of India.
The reasoning and background given in both the earlier judgments by this Hon’ble Court was based on the abnormal political condition in the State of Jammu & Kashmir.
VII. That, it is pertinent to mention here that the Constitution Bench consisting of 7 judges of this Hon’ble Court have considered the word restrictions and modifications used in Ajmer-Merwara (Extension of Laws) Act 1947 in the case of Delhi Laws Act, 1912 v. The Part C (Laws) Act, 1950.
In the aforesaid judgments this Hon’ble Court have held that radical transformation of the existing provisions cannot be done in view of the word modification.
Since this judgment was referred in the case of Puranlal Lakhanpal and distinguished. In fact, in the present scenario the ratio laid down by the 7 judges Constitution Bench of this Hon’ble Court required consideration to appreciate the ratio of judgments in the case of Puranlal Lakhanpal and Sampat Prakash. Since, in the cases of Puranlal Lakhanpal and Sampat Prakash, the issue of incorporation of new Article in the name of modification by exercising power under Article 370 was not considered which amounts to delegation of legislative powers of the President. This was not the spirit of constitution, since, its inception to forum for amendment to constitution. Therefore Article 370 empowering the president to amend the constitution is ultravirus. Since it amounts to
VIII. That section 8 of the Indian Independence Act, 1947 provides that in the case of each of the new Dominions, the powers of the Legislature of the Dominion shall, for the purpose of making provision as to the constitution of the Dominion, be exercisable in the first instance by the Constituent Assembly of that Dominion, and references in this Act tithe Legislature of the Dominion shall be construed accordingly.
Sub section 2 of section 8 of Indian Independence Act, 1947 provides that exceptin so far as other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion under subsection(1) of this section, each of the new Dominions and all Provinces and other parts thereof shall be governed as nearly as maybe in accordance with the
Government ofIndiaAct,1935 ;and the provisions of that Act, and of the Orders in Council, rules and other instruments made there under, shall, so far as applicable, and subject to any express provisions of this Act shall apply.
The provisions of section 8 of the Indian Independence Act, 1947 is reproduced herein below:
“8.-(1) In the case of each of the new Dominions, the powers of the Legislature of the Dominion shall, for the purpose of making provision as to the constitution of the Dominion, be exercisable in the first instance by the Constituent Assembly of that Dominion, and references in this Act to the Legislature of the Dominion shall be construed accordingly.
(2) Except in .so far as other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion under subsection (1) of this section, each of the new Dominions and all Provinces and other parts thereof shall be governed as nearly as may be in accordance with the
Government of India Act, 1935 ; and the provisions of that Act, and of the Orders in Council, rules and other instruments made there under, shall, so far as applicable, and subject to any express provisions of this !Act, and with such-omissions, additions, adaptations and: modifications as may be specified in orders of the Governor-general under the next succeeding section, have effect accordingly:
Provided that-
(a) the said provisions shall apply separately in relation to each of the new Dominions and nothing in this sub-section shall be construed as continuing on or after the appointed day any Central Government or Legislature common to both the new Dominions;
(b) nothing in this subsection shall be construed as continuing in force on or after the appointed day any form of control by His Majesty’s Government in the United Kingdom over the affairs of the new Dominions or of any Province or other part thereof;
(c) so much of the said provisions as requires the Governor-general or any Governor to act in his discretion or exercise his individual judgment as respects any matter shall cease to have effect as from the appointed day;
(d) as from the appointed day, no Provincial Bill shall be reserved under the Government of India Act, 1935, for the signification of His Majesty’s pleasure, and no Provincial Act shall be disallowed by His Majesty there under; and
(e) the powers of the Federal Legislature or Indian Legislature under that Act, as in force in relation to each Dominion, shall, in the first instance, be exercisable by the Constituent Assembly of the Dominion in addition to the powers exercisable by that Assembly under subsection (1) of this section.”
Thus it is evident from perusal of the section 2, 5, 6, 7 & 8 of the Indian Independence Act, 1947 that the Kashmir continued to be a part of Federation of India, union of states prior to 1935 and its accession was complete vide codified law namely Govt. of India Act, 1935 and after coming into force Indian Independence Act, 1947 vide provision made in the 1935 act and 1947 act.
Kashmir continued to be part of Indian dominion (union of states) even after coming into force of Indian Independence Act, 1947. In terms of section 7 (i) to remove any doubt, confusion or ambiguity, fresh instrument of accession was signed by the ruler of Kashmir i.e. Maharaja Hari Singh on 27.10.1947.
Thus it is on record that Kashmir never separated from federation of Indian dominion or union of states as required under proviso of section 7 (i) which clearly says that until provision in question are denounced by the ruler of the Indian states. The ruler of Kashmir never denounced the applicability of the provision of Govt. of India Act, 1935 and Indian Independence Act, 1947. Therefore, by virtue of section 7 read with section 8 of Indian Independence Act, 1947 as well as section 5 read with section 6 of the Govt. of India Act, 1935, Jammu & Kashmir continued to be part of union of states.
IX. That on 22.10.1947, the tribal raiders invaded the territory of the State; and this invasion presented a problem of unprecedented gravity before the Maharaja. With the progress of the invading raiders the safety of the state was itself in grave jeopardy and it appeared that, if the march of the invaders was not successfully resisted, they would soon knock at the doors of Srinagar itself. This act of aggression set in motion a chain of political events which ultimately changed the history and political constitution of Kashmir with unexpected speed. On 25.10.1947, the Maharaja signed an Instrument of Accession with India which had then become an Independent Dominion.
By the First Clause of the Instrument, the Maharaja declared that he had acceded to the Dominion of India with the intent that the Governor General of India, the Dominion, Legislature, the Federal Court and any other Dominion Authority established for the purpose of the Dominion shall, by virtue of the Instrument of Accession, subject always to the terms thereof and for the purposes only of the Dominion of India. By clause 3, the Maharaja agreed that the matters specified in the Schedule attached to the Instrument of Accession were the matters with respect to which the Dominion Legislature may make laws for this State. Clause 5 provides that the Instrument shall not be varied by any amendment of the Government of India Act, 1935, or of the Indian Independence Act, 1947, unless such amendment is accepted by Maharaja by an Instrument supplementary to the original Instrument of Accession. Clause 8 is very important. It says that nothing in the Instrument affects the continuance of the Maharaja’s sovereignty in and over his state, or save as provided by or under the Instrument the exercise of any powers, authority and rights and then enjoyed by him as Ruler of the state, or the validity of any law then in force in the State. The Schedule attached to the Instrument refers to four topics, defence, external affairs, communications and ancillary, and under these topics twenty matters have been serially enumerated as those in respect of which the Dominion Legislature had the power to make laws for the State. Thus, by the Instrument of Accession, the Maharaja took the very important step of recognizing the fact that his State was a part of the Dominion of India. Meanwhile the invasion of the State had created tremendous popular fervor and patriotic feelings in resisting the act of aggression and this popular feeling inevitably tended to exercise pressure on the Maharaja for introducing responsible and popular government in the State. The Maharaja tried to pacify the popular demand by issuing a proclamation on March 5, 1948.By this proclamation he stated that in accordance with the traditions of his dynasty he had from time to time provided for increasing association of his people with the administration of the State with the object of realizing the goal of full responsible government at as early a date as possible and he added that he had noted with gratification and pride the progress made so far and the legitimate desire of his people for the immediate establishment of a fully democratic constitution based on adult franchise with a hereditary Ruler from his dynasty as the constitutional head of an executive responsible to the Legislature. It appears that before this proclamation was issued the Maharaja had already appointed Sheikh Mohammed Abdullah who was then the popular leader of the people as the head of the emergency administration. By the proclamation the Maharaja replaced the emergency administration by a popular interim government and provided for its powers, duties and functions pending the formation of a fully democratic constitution. Clause 1of the proclamation provides for the composition of the Ministry, whereas by cl. 2 the Prime Minister and other ministers are required to function as a cabinet and act on the principle of joint responsibility. A Dewan appointed by the Maharaja is to-be a member of the Cabinet. Clause 4 provides that the Council of Ministers shall take appropriate steps, as soon as restoration of normal conditions has been completed, to convene a National Assembly based on adult franchise having due regard to the principle that the number of representatives from each voting area should, as far as practicable, be proportionate to the population of that area. Clause 5 then lays down that the Constitution to be framed by the National Assembly shall provide adequate safeguards for the minorities and contain appropriate provisions guaranteeing freedom of conscience, freedom of speech and freedom of assembly. Clause 6 states that when the work of framing the Constitution is completed by the National Assembly the Constitution would be submitted through the Council of Ministers to the Maharaja for his acceptance. The proclamation ended with the expression of hope that the formation of a popular interim government and the inauguration in the near future of a fully democratic Constitution would ensure the contentment, happiness and the moral and material advancement of the people of the State. Through under this proclamation a popular interim government was set up, the constitutional position still was that the popular government had theoretically to function under the Constitution of 1939. It appears that before the popular government was thus installed in office the Maharaja had deputed four representatives of the state to represent the state in the constituent assembly called in the Dominion of India to frame Constitution of India.
X. That in the light of provisions contained in section 8 of Indian Independence Act, 1947, constituent assembly was constituted and in that constituent assembly, four representatives representing the state of Jammu & Kashmir also became members and they participated in the making of the Indian Constitution. Thus, it is quite clear that the Constitution of India which came into force w.e.f. 26.01.1950 was adopted by the people of India including the people of Jammu & Kashmir being integral part of India. Therefore, there no special provision was made in the Indian constitution giving special status/treatment to the state of Jammu & Kashmir. This is evident from perusal of Article 1 of the Constitution of India. Article 1 of the Constitution of India reads thus:
“1. Name and territory of the Union
(1) India, that is Bharat, shall be a Union of States
(2) The States and the territories thereof shall be as specified in the First Schedule
(3) The territory of India shall comprise”
Schedule 1 of the Constitution of India also includes states of Jammu & Kashmir within the union of states.
XI. That the Constitution of India was adopted on 26.01.1950 and the preamble of the Constitution of India reads thus:
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”
A reading of preamble would clearly show that the certain facts which are necessary to be explained before the enactments contained in the acts can be understood. In other words, the preamble to our constitution should be interpreted as the part of the Constitution.
Schedule 1 to the Constitution of India contains name of the states and their territories. At serial no. 15, the name of state of Jammu & Kashmir alongwith territories is mentioned. Thus it is evident that the State of Jammu & Kashmir is at par with the other states which are members to the union of states namely India (Bharat).
XII. That Article 3 of the Constitution of India provides for formation of new states and alteration of areas, boundaries or names of existing States. A perusal of Article 3 would show that the provisions contained in Article 3 empowers the parliament to form new states and alter the boundaries of existing state including the state of Jammu & Kashmir. The provisions of Article 3 are reproduced herein below:
3. Formation of new States and alteration of areas, boundaries or names of existing States: Parliament may by law
(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State; Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired Explanation I In this Article, in clauses (a) to (e), State includes a Union territory, but in the proviso, State does not include a Union territory
Explanation II The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory.”
Similarly, Article 4 provides for laws made under Article 2 & 3 providing amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters. Again Article 4 of the Constitution of India is applicable on all states including state of Jammu & Kashmir. The contents of Article 4 are reproduced herein below:
“4. Laws made under Articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters
(1) Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary
(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of Article 368 PART II CITIZENSHIP”
Thus a combined reading of Article 3 & 4 would show that the state of Jammu & Kashmir is integral part of union of states and the laws made under Article 2, 3 & 4 shall be applicable on the state of Jammu & Kashmir also.
XIII. That Article 147 provides for interpretation of any substantial question of law in respect of interpretation of Constitution of India in reference to the Government of India Act, 1935 as well as in order
Therefore, after coming into force, the Constitution of India, the provisions of the Constitution of India is applicable on the state of Jammu & Kashmir also except those which have been amended by the Constitution (Application to Jammu & Kashmir Order 1954). The order of 1954 has been issued by respondent no. 1 exercising power under Article 370 (1) (c) i.e. amendment in existing provisions of the Constitution of India qua the State of Jammu & Kashmir. Therefore, it is evident from the reading of the Constitution of India that in the constitution, the state of Jammu & Kashmir has not been accorded special status nor it has been kept out of the Schedule 1. However, keeping in view the turbulent political scenario in the state of Jammu & Kashmir a temporary provision was made namely Article 370 to bring normalcy in the State of Jammu & Kashmir and to strengthen the democracy in the state. In the year 1951, the state of Jammu & Kashmir constituted a Constituent Assembly for the state of Jammu & Kashmir. The Constituent Assembly of state of Jammu & Kashmir, constituted of 75 members of National Conference and Mr. Maulana Masudi Nomani, as its chairman. The same Constituent assembly declared on 06.02.1954 that the State of Jammu & Kashmir is merged into the union of states i.e. India (Bharat).
XIV. That constitution order 10 namely Constitution (Application to Jammu & Kashmir) Order 1950 was issued by the President of India on 26.01.1950 exercising power u/a 370 (1) (i) (b) of the Constitution of India which reads thus:
“In exercise of the powers conferred by clause (1) of Article 370 of the Constitution of India, the President, in consultation with the Government of the State of Jammu and Kashmir, is pleased to make the following Order, namely :–
1.(1) This Order may be called the Constitution (Application to Jammu and Kashmir)Order. 1950.
(2) It shall come into force at once.
2.For the purposes of sub-clause (b) (i) of clause (1) of Article 370 of the Constitution, the matters specified in the First Schedule to this Order, being matters in the Union List, are hereby declared to correspond to matters specified in the Instrument of Accession governing the accession of the State of Jammu and Kashmir to the Dominion of India as the matter with regard to which the Dominion Legislature may make laws for that State; and accordingly, the power of Parliament to make laws for that State shall be limited to the matters specified in the said First Schedule.
3.In addition to the provisions of Article 1 and Article 370 of the Constitution, the only other provisions of the Constitution which shall apply in relation to the State of Jammu and Kashmir shall be those specified in the Second Schedule to this Order, and shall so apply subject to the exceptions and modifications specified in the said Schedule 2 [and to the modification that all references in the said provisions to the Rajpramukh shall be construed as references to the Sadar-i-Riyasat of Jammu and Kashmir].”
A copy of the Constitution Order dated 26.01.1950 namely Constitution (Application to Jammu & Kashmir) Order 1950 is annexed herewith as ANNEXURE P-3 (PAGE NO. to ).
XV. That the President of India issued amendment to the Constitution (Application to Jammu & Kashmir) Order 1952 vide constitution order 39 dated 20.03.1952. The relevant amendment contained in para 2 of the same order are produced herein as under:
“2. In the Second Schedule to the Constitution (Application to Jammu and Kashmir) Order, 1950, in the entry in third column relating to Part V, after modification (1), the following modification shall be inserted, namely :–
“(1A) Articles 54 and 55 shall apply subject to the modifications–
(a) that the references therein to the elected member’s of both Houses of Parliament and to each elected member of either House of Parliament shall be deemed to include, respectively, a reference to the representatives of the State in those Houses and to each such representative,
(b) that the references to the elected members of the Legislative Assemblies of the States and to each such elected member shall be deemed to include, respectively, a reference to the members of the Constituent Assembly of the State and to each such member, and
(c) that the population of the State shall be deemed to be forty- four lakhs and ten thousand.”
A copy of Constitution (Application to Jammu & Kashmir) Order 1952 (CO 39) dated 20.03.1952 is annexed herewith as ANNEXURE P-4 (PAGE NO. to ).
XVI. That the Constitution (Application to Jammu & Kashmir) Order 1954 was issued by the President of India exercising power under clause 1 of Article 370 of the Constitution of India and passed a very exhaustive order whereby proviso was added to Article 3 of the Constitution of India which reads thus:
“Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.”.
In para (j) of the said impugned order after Article 35, new Article 35 A has been added which reads thus:
“(j) After article 35, the following new article shall be added, namely:—
“35A. Saving of laws with respect to permanent residents and their rights.—
Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,—
(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.”
XVII. That in the year 1954, the state of Jammu & Kashmir adopted its constitution which is known as Constitution of Jammu & Kashmir wherein Article 3 provides that the state of Jammu & Kashmir is integral part of India and it will remain integral part of India. In Article 4 it is provided that the territory of state of Jammu & Kashmir is the territory which was under the sovereignty of the ruler of the State as on 15.08.1947. Under Article 147 of Constitution of Jammu & Kashmir it is provided that Article 3 & 4 of the Constitution of Jammu & Kashmir shall never be amended. Thus, it is quite clear that a reading of Constitution of India as well as the Constitution of Jammu & Kashmir, both provides for the state of Jammu & Kashmir being integral part of India.
XVIII. That the power of the President of India conferred by Article 370 (1) of the Constitution of India has been challenged in three cases namely:
a) Prem Nath Kaul vs. The State Of Jammu & Kashmir, 1959 SCR Supl. (2) 270
b) Puranlal Lakhanpal vs. The President Of India And Others, 1962 SCR (1) 688
c) Sampat Prakash vs. State of Jammu & Kashmir
The questions of law raised in the above three cases, have been considered by the Constitution Bench of this Hon’ble Court. In those decisions, the entire consideration was confined to the issue of exceptions an modifications made by the President of India exercising power under Article 370 (1) and 370 (1) (d) of the Constitution. However, the issue of adding new article in the constitution has not been considered in the aforesaid three cases by this Hon’ble Court. Therefore, the power of the President of India under Article 370 for adding new article to the constitution has not been dealt with to the best of the knowledge of the petitioner earlier at any point of time.
After 1954, several amendments have taken place in the constitution which is apparent from the following:
“2. [The provisions of the Constitution as in force on the 20th day of June, 1964 and as amended by the Constitution (Nineteenth Amendment) Act, 1966, the Constitution (Twenty-first Amendment) Act, 1967, section 5 of the Constitution (Twenty-third Amendment) Act, 1969, the Constitution (Twenty fourth Amendment) Act, 1971, section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971, the Constitution (Twenty-sixth Amendment) Act, 1971, the Constitution (Thirtieth Amendment) Act, 1972, section 2 of the Constitution (Thirty-first Amendment) Act, 1973, section 2 of the Constitution (Thirty-third Amendment) Act, 1974, sections 2, 5, 6 and 7 of the Constitution (Thirty eighth Amendment) Act, 1975, the Constitution (Thirty-ninth Amendment) Act, 1975, the Constitution (Fortieth Amendment) Act, 1976, sections 2, 3 and 6 of the Constitution (Fifty-second Amendment) Act, 1985 and the Constitution (Sixty-first Amendment) Act, 1988 which, in addition to article 1 and article 370, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows:—]”
The amendments passed after 1954 i.e. Constitution (Nineteenth Amendment) Act, 1966, the Constitution (Twenty-first Amendment) Act, 1967, the Constitution (Twenty-third Amendment) Act, 1969, the Constitution (Twenty fourth Amendment) Act, 1971, the Constitution (Twenty-fifth Amendment) Act, 1971, the Constitution (Twenty-sixth Amendment) Act, 1971, the Constitution (Thirtieth Amendment) Act, 1972, the Constitution (Thirty-first Amendment) Act, 1973, the Constitution (Thirty-third Amendment) Act, 1974, the Constitution (Thirty eighth Amendment) Act, 1975, the Constitution (Thirty-ninth Amendment) Act, 1975, the Constitution (Fortieth Amendment) Act, 1976, the Constitution (Fifty-second Amendment) Act, 1985 and the Constitution (Sixty-first Amendment) Act, 1988 are annexed herewith as ANNEXURE P-5 (COLLY) (PAGE NO. TO ).
XIX. That as per study conducted by Jammu Kashmir study centre which has published a book entitled as Jammu Kashmir Tathya, Samsayein or samadhan published by Jammu Kashmir Adhyayan Kendra, Jammu, wherein it is mentioned that gallantry award namely “Param Vir Chakra” has been awarded to total 21 military personnel since independence of India out of the 13 ward of Param Vir Chakra awarded to those who have sacrificed their life in war on the soil of Kashmir. It is worth mentioning that separatist movement is limited to only 4 districts of Jammu & Kashmir out of 10. The districts where separatist movement is going on are namely Baramulla, Srinagar, Pulwama-Anantnag and Shopian Nagar. The following caste and religious people of Jammu & Kashmir have never participated in separatist movement i.e. Gurjar, Shia, Pahadi, Nationalist Muslim, Kashmiri Sikh, Pandit, Ladakh people, Dogras and Buddhist. Thus it is evident that the peace loving and nationalist people of Kashmir have never been in support of caste and religious people of Jammu & Kashmir have never participated in separatist movement. Therefore, the exercise power under temporary provisions of Article 370 (1) by the President of India to create new Article in the Constitution of India namely Article 35 A is against the very spirit of oneness of India (Bharat). The framers of the Constitution never dreamt of disintegration or separation of any of its states from the territory of India (Bharat) and therefore inclusion of Article 35 A in the Constitution of India vide Constitution (Application to Jammu & Kashmir) Order 1954 is against the very sole of India Constitution i.e. oneness.
There cannot be a class within a class of Indian citizen. The citizen of India cannot be subjected to prohibition or restriction to get employment, trade & Commerce or acquisitions of property and assets in the state of Jammu & Kashmir in the garb of Article 35 A which is brought on statute book by the Presidential order exercising power under Article 370 (1) of the Constitution of India, cannot override the fundamental rights contained for the citizen in Part III of the Constitution of India. Therefore, Article 35 A is in conflict with Article 14, 19 and 21 of the Constitution of India and therefore this provision under Article 35 A is ultra virus to the Constitution and invalid.
XX. That the provisions contained in Article 35 A, citizen of India other than those who are permanent resident of Jammu & Kashmir, cannot seek employment, cannot settle in Jammu & Kashmir, cannot acquire immovable properties, cannot undertake any trade or business, if the state of Jammu and Kashmir makes any law to that effect and it cannot be challenged before any court. Therefore, Article 35 A is violative of Article 14, 16, 19 etc of the Constitution of India.
In view of the aforesaid facts and circumstances, the Petitioners have preferred the instant Petition, inter-alia, on the following grounds:-
GROUNDS
A. Because the constitution (application to J & K order 1954) has been issued by the Hon’ble President of India by exercising power conferred under clause 1 of Article 370 of Constitution of Indiana perusal of Article 370 would clearly show that there is no power conferred on the Hon’ble President of India to amend constitution by incorporating any new Article in the constitution by issuing the constitution (application to J&K) order 1954.Therefore, inclusion of Article35 A within Part III of the Constitution of India is absolutely unconstitutional. Therefore, the provisions amending the constitution contained in constitution application to J&K Order 1954 CO-48 may be declared to be unconstitutional.
B. The concept that the Constitution can be amended only by the Parliament is part of the Basic Structure of the Constitution. No process of amendment can alter it. Any action taken contrary to Article 368 shall be void and void ab-initio. In e present case the impugned action is arbitrary and violative of Article 14 of the Constitution.
C. Because Article 370 (1) does not contemplate effecting an amendment to the Constitution thereby prejudicing the rights o other citizens. In any case the exercise of the power was arbitrary and opposed to Article 14.
D. Article 370 confers power on the President of India under Article 370 (1) (d) which reads thus:
“(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify”
In the light of a constitution bench judgment of this Hon’ble Court in the case of “Puranlal Lakhanpal vs. The President Of India And Others” 1962 SCR (1) 688 where a constitution bench of this Hon’ble Court has been pleased to consider the meaning of the expression ‘modification’ as envisaged under Article 370 (1) (d) of the Constitution whether the President of India can be conferred with the power to bring any radical transformation in the Constitution through J&K order 1954 is involved in this case. In the aforesaid constitution bench judgment it is observed that the word modify also means “to vary” i.e. amend. Whether this interpretation given by the constitution bench judgment empowers the President of India to bring any new Article namely Article35 A of the Constitution of India?.It is respectfully submitted that by exercising power under Article 370 (1) (d) the President has arbitrarily exceeded the executive power by incorporating new Article i.e. Article35 A within part III of the Constitution of India. Therefore, the Article35 A added vide the constitution application to J & K order 1954 is unconstitutional and therefore it is liable to be struck off from the constitution.
E. Because the Article 35 A brought to the constitution of India is essentially a legislative act which is not permitted by the constitution except the provisions laid down under Article 368. However, Article 35 A brought on the statue book through the Constitution (application to Jammu & Kashmir) Order 1954 infringes the fundamental rights of the citizen of this country guaranteed by several Articles in Ch III including Articles 14 and 19; and therefore Article 35 A is unconstitutional.
F. Because in the case of Puranlal Lakhanpal 1962 SCR (1) 688, this Hon’ble Court has considered the alteration made in Article 81 of the Constitution of India and has been pleased to hold that while exercising power under Article 370 (1) (d), the President of India is well within power to alter or amend the Article 81.Similarly, while considering the case of Sampat Prakash AIR 1970 SC 1118, a five judges bench of this Hon’ble Court have considered alteration of Article 35 (c) of the Constitution of India. This Hon’ble Court in the aforesaid case have followed the earlier decision of this Hon’ble Court in the case of Puranlal Lakhanpal (SUPRA).However, in both the aforesaid judgments, the constitutional issue as to whether the President of India is empowered under Article 370 (1) (d) to incorporate entirely a new Article namely Article35 A to the Constitution of India under the garb of modification. Since this issue has not been considered in the aforesaid two judgments therefore it requires consideration by this Hon’ble Court. It is respectfully submitted that inclusion of new Article namely Article35 A to the Constitution of India by the Constitution application to J&K order 1954 is beyond the power of the President of India is conferred u/a 370 (1) (D) of the Constitution of India.
G. Because Article 35 A of Constitution of India is in conflict with Article 14, 19 and 21 of the Constitution of India because it creates a special class of citizen within a class of citizen of India. The concept of special class of citizen is unknown to the law of citizenship. A perusal of Constitution of India would establish that the spirit of Indian constitution lies in oneness of the citizens of this country. Therefore, Article 35 A is highly discriminatory and therefore it is liable to be declared as unconstitutional.
H. Because Article 35 A of the constitution of India prohibits the citizen of the other part of this country and defines the class of persons who are or shall be permanent residents of the State of Jammu & Kashmir or confers on such permanent resident any special rights and privileges, or imposing upon other persons any restrictions in respect of seeking employment under the State Government, acquisition of immovable property in the state of Jammu & Kashmir, settlement in the state of Jammu & Kashmir, right to scholarship etc. this part has been incorporated in the Constitution of India vide Constitution (Application to Jammu & Kashmir) Order 1954 by the President of India by exercising power under Article 370 (1) of the Constitution of India. Therefore, the aforesaid Article namely Article 35 A is creating special class of citizen. Therefore, Article 35 A is unconstitutional and is liable to be set aside.
I. Because Article 35 A provides for the provision that notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State of Jammu & Kashmir in respect of the items prescribed in Article 35 A shall be void on the ground that it is inconsistent with or takes ways or abridges any rights conferred on the other citizens of India. This provision clearly creates two class of citizen in India namely one class of citizen which consists of all states of India, except the state of Jammu & Kashmir and the other class of the citizen consist of the permanent resident of Jammu & Kashmir alone. These provisions contained in Article 35 A are in clear contrast of Article 14 of the Constitution of India which talks about right to equality and provides that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Similarly Article 16 provides for equality of opportunity in matters of employment for all citizens to any office the State. Therefore, Article 35 A is curtailment of fundamental rights of the citizen of this country and therefore it is liable to be declared as unconstitutional.
J. Because the amendment in the constitution shall be done only by the parliament in accordance with Article 360 of the Constitution of India. The President of India under the garb of a temporary provision i.e. Article 370 (1) cannot amend the constitution by incorporating a new Article of permanent nature. However, a careful reading of Article 370, that a President can amend or create exception of an existing provision of constitution in respect of the State of Jammu & Kashmir. The power for creation of exception or modification conferred on the President of India cannot be extended to the extent to add new Article to the Constitution of India. Therefore the President of India has exceeded his power and jurisdiction while incorporating new Article i.e. Article 35 A to the Constitution of India. However, Article 35 A of the Constitution of India has been added vide Constitution (Application of Jammu & Kashmir) Order 1954 by the President of India is beyond his power and jurisdiction and therefore it is unconstitutional.
K. Because since the date of signing of instrument of accession, coming into force of the Constitution of India on 26.01.1950 and adoption of the constitution of the state of J&K and radical changes brought in the socio political scenario in the state of J&K order 1954 with its subsequent amendments have become irrelevant and redundant and therefore in the said background, existence of Article 35 A in the Constitution of India has lost its ground. The state of J&K is integral part of confederation of India states and therefore the citizen of J&K as well as citizen of other states of the country have got equal fundamental rights and on the ground of certain clauses/paras contained in the constitution application to J&K order 1954 are violative of Article 14 of the Constitution of India.
6. That the petitioner has not filed or any other petition either before this Hon’ble Court or before any other Courts or forum for the relief prayed in this writ petition.
PRAYER
It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:
(i) To issue writ in the nature of mandamus or any other appropriate writ, direction or order declaring that Constitution (Application to Jammu & Kashmir) Order 1954 as contained in Para (j) adding new Article 35 A to the Constitution, as ultra virus the constitution of India and invalid.
(ii) Issue appropriate writ, direction or order declaring that the Constitution of India can be amended only as provided under Article 368.
(iii) Pass such other or further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case as well in the interest of justice.
For THIS ACT OF KINDNESS THE PETITIONERS ABOVENAMED AS IN DUTY BOUND SHALL EVER PRAY.
FILED BY
Rameshwar Prasad Goyal
Advocate for the Petitioner
Settled by: K.N. Bhatt, Senior Advocate
Drawn by: Barun Kumar Sinha, Advocate
Drawn on: 22.07.2014
Filed on: 23.07.2014
