The 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 Bench added.
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.