The thorny matter of Article 370: SC sends notice to Centre on J&K's special status

Fighting the provision

The appeal that the Supreme Court has taken cognisance of was filed by Kumari Vijayalakshmi Jha against the Delhi High Court which in April had dismissed her petition seeking the constitution of Jammu and Kashmir be declared void.

In her petition before the Delhi HC bench of Justices G Rohini and Jayant Nath, Jha contended that Article 370 of the Constitution was a temporary provision which had lapsed with the dissolution of the Jammu and Kashmir Constituent Assembly on 26 January 1957. The Article had been added to the Constitution on 14 May 1954.

“A perusal of Article 370 of the Constitution would show that it ceased to remain operative with the dissolution of the constituent assembly of Jammu and Kashmir,” Jha had said in the petition, arguing that the special status to the state was against the nation's sovereignty, integrity and unity.

However, the High Court, relying on an earlier Supreme Court verdict, dismissed Jha’s petition. She then moved the Supreme Court.

The Supreme Court in 2016 had held that despite Article 370 being “a temporary provision”, it has no time limit and shall cease to be operative only from such a date that the President makes a public notification.

The state of affairs

Article 35A, the other provision that appears in the Appendices of the Constitution, is considered as the real force behind Article 370.

The Article empowers the J&K legislature to define 'permanent residents' and provide special rights and privileges to them in respect of employment, acquisition of immovable property, and settlement citizens. It also debars citizens from other parts of the country from acquiring immovable property or taking up employment with the state government.

It defines 'permanent residents' as: "All persons born or settled within the state before 1911 or after having lawfully acquired immovable property resident in the state for not less than 10 years prior to that date. All emigrants from Jammu and Kashmir, including those who migrated to Pakistan, are considered state subjects. The descendants of emigrants are considered state subjects for two generations."

J&K’s ruling Peoples’ Democratic Party (PDP), as well as the National Conference have issued stern warning against any tinkering with the Article. While Chief Minister and PDP leader Mehbooba Mufti, who is running the government in alliance with the BJP, had said “there would be no one in Kashmir to hold tricolour”, former chief minister and NC leader Farooq Abdullah warned of an "uprising".