The Jammu and Kashmir high court has ruled that Article 370 of the Constitution that grants the state special status is “permanent” and “beyond amendment, repeal or abrogation”.
“Article 370, though titled ‘Temporary Provision’ and included in Para XXI titled ‘Temporary, Transitional and Special Provisions’, has assumed a place of permanence in the Constitution,” the 60-page judgment said.
The division bench observed on Saturday that the constituent assembly (of 1957) was given the power to recommend to the President that Article 370 be declared to cease to operate, and that it did not make such a recommendation before its dissolution on January 25, 1957. Therefore, the court said, “it (Article 370) is beyond amendment, repeal or abrogation in as much as the constituent assembly of the state, before its dissolution, did not recommend its amendment or repeal”.
The judgment assumes significance as a petition challenging Article 35A, which upholds the state’s special status, has been submitted in the high court. The J-K assembly’s autumn session was also rocked by protests demanding a discussion on 35 A that was disallowed by the speaker.
The opposition National Conference, pressing for strengthening of Article 35 A, said the judgment should “settle once and for all the debate on abrogation or repeal of Article 370”.
“We have always maintained that it cannot be touched, now it has the stamp of the judiciary as well. So people who keep taking up these issues (BJP) should know it can have very bad consequences in the state,” said party leader Nasir Aslam Wani.
The ruling PDP, a coalition partner of the BJP, said the judgment vindicated its stand and “strengthening Article 370 is part of the agenda of our alliance”.
“The judgment should be seen positively, and people should not panic but have faith in the judiciary as there is no uncertainty,” said Waheed ur Rehman Parra, political adviser to chief minister Mufti Mohammad Sayeed.
The BJP’s has traditionally stood for repealing Article 370 but has recently been silent on it, which many attribute to coalition dharma.
Underlining that J-K, while acceding to the Dominion of India, didn’t merge with it but retained limited sovereignty, the high court said, “The limited sovereignty or special status stands guaranteed under Article 370 — the only provision of the Constitution that applied to the state on its own.”
“The constitutional framework worked out by the Dominion of India and the state reflected in Article 370 has its roots in paras 4 and 7 of the Instrument of Accession,” it went on to say.
Parliament’s legislative power over J-K is confined to three subjects mentioned in the Instruments of accession — defence, foreign affairs, and communications.
“The President, however, has the power to extend to the state other provisions of the Constitution as also other laws that relate to the subjects specified in the Instrument of Accession. While extending such provisions and laws, the exercise of the power involves consultation with the state government,” the court said. But, it added, only “consultation” was required, not concurrence.