SRINAGAR: In a landmark judgment, the Jammu and Kashmir High Court has ruled that Article 370, which grants special status to the State, is a permanent feature of the Constitution and cannot be abrogated, repealed or even amended.
A Division Bench of the J&K High Court comprising justices Hasnain Massodi and Janak Raj Kotwal, in its 60-page judgment, ruled that Article 370, though titled as a ‘Temporary Provision’, had assumed a place of permanence in the Constitution.
“It is beyond amendment, repeal or abrogation, in as much as the Constituent Assembly of the State, before its dissolution, did not recommend amendment or repeal,” it said.
The Bench observed that the President, under Article 370(1), was conferred with the power to extend any provision of the Constitution to the State with such exceptions and modifications as the President may deem fit, subject to consultation or concurrence with the State government, and that 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 the case of provisions of the Constitution already applied. In the circumstances, additions made to the existing Constitutional provisions through various Constitution (application to J&K) orders on their application to the State like Proviso to Clause (2) Article 368, fall within four corners of Article 370(1),” it said.
The court ruled that the President while adding proviso to Clause (2) Article 368, in effect, provided that amendment to any Constitutional provision, though earlier applied to J&K, would not apply to the State except by an order issued in accordance with the mechanism devised under Art 370, acted within his powers under Article 370(1).
“Amendment to Article 16 of the Constitution, made by 77th Amendment Act adding clause (4A) to it, is not applicable to the State, in as much as the amendment has not been applied to the State by President as provided under Clause (1) Article 370 read with proviso to Clause (2) Article 368,” the Bench further observed.
The Division Bench observed that J&K, while acceding to the Dominion of India, retained limited sovereignty and did not merge with Dominion of India like other Princely States that signed the Instrument of Accession with the Dominion of India. “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. The State continues to enjoy special status to the extent of limited sovereignty retained by it,” it said adding the limited sovereignty or special status stood guaranteed under Article 370, the only provision of the Constitution that applied to the State on its own.
The court said the only other Constitutional provision made applicable by Article 370 of the Constitution to the State was 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 the Instrument of Accession and with concurrence of the State, in case it does not fall within the ambit of Instrument of Accession.”
It further observed that to suit autonomy granted to J&K, provisions like Article 35A and proviso to Article 253 and proviso to Clause 2 Article 368 had been added to the provisions of Constitution, as applied to the State.
“Article 35-A gives protection to existing laws in force in the State and to any law enacted after 1954 by the State legislature, defining the classes of persons treated as permanent residents of the State, conferring on permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects employment in the State Government, acquisition of immovable property in the State, settlement in the State or right to scholarship and other aids granted by the State,” added the court.