Jammu and Kashmir High Court on 11 October 2015 ruled that the provisions under Article 370 are beyond amendment, repeal or abrogation.
Advertisement
According to the Court this Constitutional Scheme was reinforced by the subsequent introduction of Article 35A to the Constitution of India by a Presidential Order which now extends blanket protection to the existing laws in the State and to any law enacted after 1954 by the State legislature.
“The Division Bench has given cogent reasons on how despite the fact that the Article has been described as temporary and transitory in the Constitution of India, has assumed permanence”, he said.
The Court said Jammu and Kashmir, while acceding to Dominion of India, retained limited sovereignty and it continues to enjoy special status to the extent of limited sovereignty under Article 370.
The bench further ruled that Article 370(1) empowers President to extend any provisions of the Constitution to the State with such exceptions and modifications as may be deemed fit. The state law department is expected to forward the copy of the high court ruling to the Central government. But, such the State legislative assembly shall have to recommend such action to the President of India. The only other provision applied to the state by the Constitution itself, is Article 1 made applicable by sub clause (c) clause (1) Article 370.
“Article 370 is the only provisions of the Constitution that applies to the state, on its own”.
Indian Home Ministry has sought a report from the puppet regime of occupied Kashmir on the High Court’s order that Article 370, which grants special status to the state, is beyond amendment, repeal or abrogation. The candidates should take note of the debate regarding provisions of Article 370, other states having state specific provisions like in the north east and also the much debated Armed Forces Special Powers Act (AFSPA).
In the circumstances, the court said, additions made to existing constitutional provisions through various Constitution (Application to Jammu and Kashmir) orders on their application to the state – like the proviso to clause (2) Article 368 – would fall within the four corners of Article 370(1). “It can not be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available”, the court observed in its judgment on a case challenging the reservation benefit in promotions to the employees.
Advertisement
A BJP MP from Uttarakhand Ramesh Pokhriyal Nishank had also raised the issue of Article 370 while moving a private member Bill – the Constitution (Amendment) Bill, 2014, for the Amendment of Article 370 of the Constitution. The court also struck down Rule 34 which obligates the Government to consider reserved categories while making temporary/stop-gap/officiating promotions.
