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बेसिक इंग्लिश का दूसरा सत्र (कक्षा प्रारंभ : 22 अक्तूबर, शाम 3:30 से 5:30)
Article 370 cannot be Amended: J&K High Court
Oct 17, 2015

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Court has observed that the Article 370 is a permanent provision of the Constitution and that it cannot be abrogated, repealed or even amended. In its observations, the division bench of High Court—comprising of Justice Hasnain Masoodi and Justice Janak Raj Kotwal described Article 35A as one giving protection to existing laws.

Observations of the High Court

  • The court said in its judgment on a case challenging the reservation benefit in promotions to the employees, “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 It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available.”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 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 division bench of High Court 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.

  • 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 that signed Instrument of Accession with Dominion of India.

  • 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.” 

  • The court observed, “The Presidential order also added new Article like Article 35A to the Constitution that 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 cort also observed, “The constitutional framework worked out by the Dominion of India and the state reflected in Article 370 has its roots in paras 4 and 7 of the Instrument of Accession. Parliament’s legislative power over J&K is confined to three subjects mentioned in the Instruments of accession—defence, foreign affairs, and communications.

  • The President, however, has the 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, and only consultation was required, not concurrence.

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.

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