Supreme Court to consider PIL on Article 370

A house in which militants are suspected to have sheltered is in flames after a gunfight happened between rebels and Indian security forces that killed 4 soldiers, in South Kashmir's Pulwama district, some 10 km away from the spot of recent suicide bombing, on February 18, 2019

New Delhi: The Supreme Court on Monday said it would go into a PIL challenging Article 370 of the Constitution that gives special status to Jammu and Kashmir.

"Give mentioning memo to Registrar. We will see it," a bench headed by Chief Justice Ranjan Gogoi told petitioner Ashwini Upadhyay, advocate and a BJP leader, who mentioned the matter before the Bench.

The petitioner said the matter was of extreme national importance and should be heard on priority.

The public interest litigation (PIL) said the issues that court should decide are whether the powers of the President under the Article 370 are executive or legislative or constitutional and by virtue of nature of powers, whether there are any express limitation upon such powers while making any modification and in the matter of application of any Article to the state of Jammu and Kashmir.

The court should also decide whether the powers of the President under Article 370 are not co-extensive with the powers of Parliament and whether Article 35A, whereby the powers of Parliament to make law violating the fundamental rights have been transferred to the state legislature and such a law having been rendered non-justiciable under the central law is beyond the powers of the President to make modifications and restrictions under Article 370.

Upadhyay, in his plea, has contended the special provision was "temporary" in nature at the time of framing of the Constitution and Article 370(3) lapsed with the dissolution of the J&K Constituent Assembly on January 26, 1957.

The petition contended that Article 35A was "arbitrary" and "contrary" to various provisions that guarantee fundamental rights to citizens.

The plea also seeks a declaration from the apex court that the separate Constitution of J&K was "arbitrary" and "unconstitutional" on various grounds, including that it was against the "supremacy of the Constitution of India and contrary to dictum of 'One Nation, One Constitution, One National Anthem and One National Flag'".

"The Constitution of J&K is invalid mainly for the reason that the same has not yet got the assent of the President, which is mandatory as per provisions of the Constitution of India," the plea said.

Article 370 is a "temporary provision" with respect to J&K and restricts the applicability of various provisions of the Constitution by "curtailing" the power of Parliament to make laws on subjects which fall under the Union and Concurrent lists, it said.

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