Constitutional validity of Jammu & Kashmir Constitution challenged in Supreme Court

A petition has been filed in Supreme Court challenging the validity of the Constitution of Jammu & Kashmir (J&K) on the ground that the provisions of J&K Constitution violate the Constitution of India.

Filed by five individuals through Advocate Vishnu Shankar Jain, the petitioners have moved the Supreme Court in light of the fact that they all wish to acquire property in the State of Jammu & Kashmir and become permanent residents of the State but are barred from doing so because of the Constitution of Jammu & Kashmir.

The main contention in the petition is that the Constitution of J&K was not enacted by a duly constituted Constituent Assembly and runs counter to the provisions of the Constitution of India.

Citizens of Jammu & Kashmir enjoy the right to property outside the State of J&K whereas the citizens from the rest of the country do not have the right to become permanent residents of the State. This is in violation of Right to Equality and Right to Freedom guaranteed under Articles 14 and 19, the petitioners contend.

The Constitution of J&K is a “State Law” and cannot curtail the rights of other citizens, the petition states.

“The State law, being a law, within the meaning of Article 13(2) is void in so far it contravenes any of the provisions of the Constitution of India.”

Article 13 prohibits any State Law to be enacted in violation of the fundamental rights guaranteed in Part III. The petitioners have submitted that not only is the Constitution of J&K in violation of this Article, even the Executive Order passed in 1954 must be rendered void to the extent that it restricts the rights of Indian citizens in the territory of Jammu & Kashmir.

As regards Article 370 of the Constitution of India that grants special status to the State of Jammu and Kashmir, the petition argues that the said Article was enacted for a short period and it was not intended to be extended indefinitely.

Article 368 of the Constitution of India which empowers the Parliament to amend the Constitution is not subject to Article 370, says the petition. It is further averred that the proviso to Article 368 restricting the Parliament’s power from amending Article 370 by way of an executive order “destroys the very foundation and basic feature of the Constitution of India and as such same is void.”

The petition prays for a declaration to be made stating that the Constituent Assembly that enacted the Constitution of Jammu & Kashmir was not legally constituted and therefore the Constitution of Jammu & Kashmir is void.

Additionally, the petitioners have also sought for certain Articles of Constitution of J&K to be struck down for being “in contravention of Articles 13(2), 14, 15, 16 and 19 of the Constitution of India” and have prayed for issuance of a declaration that the Parliament would have “the absolute powers to amend, rescind or repeal Article 370 of the Constitution of India.”
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