The plea says the special provision was "temporary" in nature at the time of framing of the Constitution and Article 370(3) had lapsed with the dissolution of the Jammu and Kashmir Constituent Assembly on January 26, 1957.
The Supreme Court on Monday ordered tagging of a PIL challenging the validity of Article 370 of the Constitution, which grants a special status to Jammu and Kashmir and limits Parliament’s power to make laws concerning the state, with another pending plea on the issue. A bench comprising Chief Justice Ranjan Gogoi and justices Ashok Bhushan and S K Kaul said the public interest litigation (PIL) filed by Bharatiya Janata Party (BJP) leader and lawyer Ashwini Upadhyay would be listed for hearing, along with the other plea, on April 2.
The plea says the special provision was “temporary” in nature at the time of framing of the Constitution and Article 370(3) had lapsed with the dissolution of the Jammu and Kashmir Constituent Assembly on January 26, 1957. A similar plea, challenging Article 370 of the Constitution, has been filed by one Kumari Vijayalakshmi Jha.
In his plea, Upadhyay has also sought a declaration from the apex court that the separate Constitution of Jammu and Kashmir is “arbitrary” and “unconstitutional” on various grounds, including that it is against the “supremacy of the Constitution of India and contrary to the dictum of ‘One Nation, One Constitution, One National Anthem and One National Flag'”.
The petition claims that the life span of Article 370 was only till the existence of the Constituent Assembly — January 26, 1950 — when the national document was adopted. Article 370 is a “temporary provision” with respect to Jammu and Kashmir and it restricts the applicability of various provisions of the Constitution to the state by “curtailing” the power of Parliament to make laws on subjects which fall under the Union and Concurrent lists, the plea says.
Consequently, it allows the state to accord special rights and privileges to its natives, it goes on to add. The plea claims that Article 370 empowers the state legislature to frame any law, without attracting a challenge on the ground of violation of the right to equality of people from other states or any other right under the Constitution.