J-K High Court has said that the Article 370 was a “permanent” provision of the Indian constitution and could not be “abrogated, repealed or even amended”.
In a lanmark judgement, the court observed that Article 35 A of the Constitution was “giving protection to existing laws”.
It said, ” 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 division bench of the High Court, comprising of Justice Hasnain Masoodi and Justice Janak Raj Kotwal also said, “(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 It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available,” the court observed in its judgment on a case challenging the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. (However) the Constituent Assembly did not make such a recommendation before its dissolution on January 25th, 1957.”
The court observed that Jammu and Kashmir had retained a limited sovereignty even after its accession to India.
“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,” it observed.
The court observed that Article 370 embodied “conceptual framework of relationship” between union of India and Jammu and Kashmir.
Article 370, which gives J&K limited autonomy, has been a thorny issue for the BJP, which is currently ruling the state with the PDP. The saffron party has always opposed this special provision and vowed to reoeal it of they came to power at the centre.