The J-K High Court, in its recent decision on reservation in government jobs, observed that Article 370 is permanent and can’t be repealed, abrogated or even amended. Though the decision has come in a petition pertaining to the reservation in government jobs, the observations made by the double bench of the High Court assume significance in the backdrop of the various petitions filed for scrapping of the Article 370 – both in the Supreme Court and high courts – that provides special status to the Jammu and Kashmir state.
The high court bench has answered the questions raised in the petitions challenging the constitutional validity of Article 370. While petitioners in most of the litigations have challenged the Article for being a “temporary” provision of the Indian Constitution and questioned its validity after the dissolution of the state’s Constituent Assembly in 1957, the high court has observed that only the constituent assembly of the state was conferred with powers to recommend abrogation or amendment in the Article.
The court said that since the constituent assembly before its dissolution on January 25, 1957 didn’t recommend anything in this regard, Article 370 “not withstanding its title” of ‘temporary provision in constitution is a permanent provision of the constitution and can’t be abrogated, repealed or amended as the “mechanism provided under clause (3) of the Article 370 is no more available” after the dissolution of constituent assembly.
The court made another important observation saying Jammu & Kashmir unlike other princely states retained “limited sovereignty” while signing the ‘instrument of accession’ with the Indian union and that Article 370 embodies the “conceptual framework of the relationship” between the two.
The high court observation may bring temporary relief to the people in the state, especially those living in the valley but the legal battles would continue with the litigations pending in Delhi High Court and the Supreme Court. The court observation would mean another test for the coalition partners in the state – the Peoples Democratic Party (PDP) and the BJP – who have opposing views on the issue. While the BJP has been constantly opposing Article 370, its coalition partner PDP, which has promised “strengthening of Article 370” in its election manifesto, knows what it means for the party. In 2008, when the PDP-Congress government allocated land to the Shri Amarnath Shrine Board, it created a huge stir in the valley in which 56 people were killed and government had to withdraw the order allotting land to the shrine board.
The people in state, especially in the Kashmir valley, see any attack on Article 370 as an attack on the identity and touching it may mean playing with the fire – something both BJP and PDP are well aware of.
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