In a landmark judgment, the J&K High Court has observed that the Article 370 is a “permanent” provision of the Constitution and that it cannot be “abrogated, repealed or even amended”. The court has also described Article 35A as one “giving protection to existing laws”.
“(The) 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 It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available,” the court observed in its judgment on a case challenging the reservation benefit in promotions to the employees.
“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. The Constituent Assembly (however) did not make such a recommendation before its dissolution on January 25th, 1957.”
The high court’s observations assume significance in the backdrop of petitions challenging Article 370 (that gives special status to Jammu and Kashmir) and Article 35A.
In its observations, the division bench of High Court — comprising of Justice Hasnain Masoodi and Justice Janak Raj Kotwal — referred to the backdrop of signing of ‘instrument of accession’ and the special status of the state in constitution. The court observed that Article 370 embodied “conceptual framework of relationship” between the Union of India and Jammu and Kashmir.
“Jammu and Kashmir while acceding to Dominion of India, retained limited sovereignty and did not merge with Dominion of India, like other princely states that signed Instrument of Accession with Dominion of India,” the court observed. “The state continues to enjoy special status to the extent of limited sovereignty retained by the state. The limited sovereignty or special status stands guaranteed under Article 370 of the Constitution,” it added.
The court also said that Article 35A gave protection to existing laws.
“The Presidential order also added new Article like Article 35A to the Constitution…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) defines the classes of persons treated as permanent residents of the state, defines special rights and privileges,” the court observed.