A Division Bench of the Jammu and Kashmir High Court on Saturday described Article 370 as “a permanent provision of the Constitution” and Article 35A as one “giving protection to existing laws.”
Hearing a petition — Ashok Kumar and others versus State of J&K and others — Justices Hasnain Masoodi and Janak Raj Kotwal held: “Article 370 is the only provision of the Constitution that applies to the State, on its own. It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available.”
The double Bench of the court observed, “The Constituent Assembly [of 1957] is conferred power to recommend to the President that Article 370 be declared to cease to be operative or operate only with the exceptions and modifications. [However] The Constituent Assembly did not make such a recommendation before its dissolution on January 25, 1957.”
“Resultantly, Article 370, notwithstanding its title ‘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 It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available.”
The court stressed that “J&K while acceding to Dominion of India, retained limited sovere-ignty and did not merge with Dominion of India, like other Princely States that signed Instrument of Accession with India.”
