Article 370 is beyond abrogation, rules J&K High Court
Srinagar: Jammu and
Kashmir High Court has ruled that Article 370, granting special status to the
state, has assumed place of permanence in the Constitution and the feature is
beyond amendment, repeal or abrogation.
The Court also said
that Article 35A gives ‘protection’ to existing laws in force in the State. “Article
370 though titled as ‘Temporary Provision’ and included in Para XXI titled ‘Temporary,
Transitional and Special Provisions’ has assumed place of permanence in the
Constitution,” a division bench of justices Hasnain Masoodi and Janak Raj
Kotwal ruled in a 60-page judgement.
“It is beyond
amendment, repeal or abrogation, in as much as Constituent Assembly of the
State before its dissolution did not recommend its Amendment or repeal,” the
The Court also observed
that the President under Article 370 (1) is conferred with power to extend any
provision of the Constitution to the State with such “exceptions and
modifications” as may be deemed fit subject to consultation or concurrence with
the State Government.
“And such power would
include one to amend or alter the provision to be applied, delete or omit part
of it, or make additions to the provisions proposed to be applied to the State.
Such power would extend even in case of provisions of the Constitution already
applied,” the court said.
In the circumstances,
the court said, additions made to the existing Constitutional provisions
through various Constitution (Application to Jammu and Kashmir) orders on their
application to the State like Proviso to Clause (2) Article 368, fall within
four corners of Article 370(1).
The Court said Jammu
and Kashmir, while acceding to Dominion of India, retained limited sovereignty
and did not merge with Dominion of India, like other Princely States.
“State continues to
enjoy special status to the extent of limited sovereignty retained by it. 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
only other Constitutional provision made applicable by Article 370 of the
Constitution to the State is Article 1.
“No other provision of
the Constitution as provided under Article 370 (1), would be applicable to the
State except, by Presidential order in consultation with the State in case the
provision is akin to subjects delineated in Instrument of Accession and with
concurrence of the State, in case it does not fall within ambit of Instrument
of Accession,” the court said.
framework worked out by Dominion of India and the State reflected in Article
370 has its roots in paras 4 and 7 of Instrument of Accession, the court said.
In terms of Article
370, the court said Parliament’s legislative power over the State is primarily
confined to three subjects mentioned in the Instruments of accession - Defence,
Foreign Affairs and Communications.
however, has 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,” it said.
The court said the
Constituent Assembly in terms of proviso to Clause (3) Article 370 is conferred
with power to recommend to the President that Article 370 be declared to cease
to be operative or operate only with the exceptions and modifications mentioned
in the recommendation, if any so made.
The court pointed out
that it is only on such recommendations that the President in terms of Clause
(3) Article 370 of the Constitution may, by public notification, declare that
Article 370 shall cease to be operative or shall be operative only with such
exceptions and modifications and from such date, specified in the notification.
Assembly did not make such a recommendation before its dissolution on January
25th, 1957,” it said.
370, notwithstanding its title showing it a ‘temporary provision’ is a
permanent provision of the Constitution. It cannot be abrogated, repealed or
even amended as mechanism provided under Clause (3) of Article 370 is no more
available,” it said adding, “furthermore, Article 368 cannot be pressed into
service in this regard, inasmuch as it does not control Article 370 - a self
contained provision of the Constitution”.
To suit autonomy
granted to the State, the court said, provisions like Article 35A and proviso
to Article 253 and proviso to Clause 2 Article 368 have been added to the
provisions of Constitution, as applied to the State.
“The Article 35A
gives protection to existing laws in force in the State and to any law enacted
after 1954 by the State legislature,” it added. (With inputs from agencies)