For full text of the judgement click here Judgment
Sheikh Saleem
Srinagar, Oct 10: High Court Saturday described Article 370 as “permanent provision of the Constitution” and Article 35A as one “giving protection to existing laws”.
The division bench of Justice Hasnain Masoodi and Justice Janak Raj Kotwal held that “Article 370 is the only provision of the Constitution that applies to the State (of J&K), on its own. It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available.”
Hearing a petition, Ashok Kumar and others versus State of J&K and others, the double bench of the court quoted historic backdrop for the signing of Instrument of Accession and J-K’s special position in the Constitution.
The double bench of the court observed: “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. (However) The Constituent Assembly did not make such a recommendation before its dissolution on January 25th, 1957.”
“Resultantly, 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 It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available.”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 held that Article 370 of the Constitution embodies “conceptual framework of relationship between Union of India and State and lays down broad features of special status granted to the State”.
Underlining that the President of India, in exercise of powers under Article 370 (1) (d), has issued constitutional orders from time to time, applying various Constitutional provisions to the State, “The Order did not only modify text of Constitutional provisions applied to the State but in case of some of such provisions, deleted part of text, added to the text, or added provisos to existing Constitutional Orders.”
The court also stressed that 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 India.
The court underlined that a 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.”
The court observed that Article 35 (A) defines the classes of persons treated as permanent residents of the State, defines special rights and privileges.