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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 the 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. "The 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. The Constitutional 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.
"The President, 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.
"The constituent assembly did not make such a recommendation before its dissolution on January 25th, 1957," it said.
"Resultantly, Article 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.
Photograph: Danish Ismail/Reuters