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Article 370 is beyond amendment, repeal or abrogation: J&K High Court

Oct 12, 2015 14:14 IST

Jammu and Kashmir High Court on 11 October 2015 ruled that the provisions under Article 370 are beyond amendment, repeal or abrogation. It said that granting special status to the state has assumed place of permanence in the Constitution.

Court also said that Article 35A gives protection to existing laws in force in the State.

The division bench of Justice Hasnain Masoodi and Justice Janak Raj Kotwal ruled in a 60-page judgement that the Article 370 though titled as Temporary Provision and included in Para XXI titled Temporary, Transitional and Special Provisions has assumed place of permanence in the Constitution.

The bench said that the Article is beyond amendment, repeal or abrogation as the Constituent Assembly of the state before its dissolution did not recommended its Amendment or repeal.

The bench further ruled that Article 370(1) empowers President to extend any provisions of the Constitution to the State with such exceptions and modifications as may be deemed fit.

The powers conferred on the President would include amending or altering the provisions applied, deleting or omitting part of it, or make additions to provisions proposed to be applied to the State. Such power would extend even in case of provisions of the Constitution already applied.

However, such powers will be subject to “consultation with the State government in case the provisions are akin to subjects delineated in Instrument of Accession” or “to the concurrence of the State government in case provisions are not akin to the Instrument of Accession.”

Moreover, in the circumstances, the court said, the provisions added to the existing Constitutional provisions through various Constitution (Application to Jammu and Kashmir) orders on their application to the State like Provision to Clause (2) Article 368, fall within four corners of Article 370(1).

The Court said Jammu and Kashmir, while acceding to Dominion of India, retained limited sovereignty and it continues to enjoy special status to the extent of limited sovereignty under Article 370.

The only other Constitutional provision made applicable by Article 370 of the Constitution to the State is Article 1.

Article 370 of the Constitution of India - It provides special autonomous status to state of Jammu and Kashmir. The article is drafted in Part XXXI of the Constitution, which relates to Temporary, Transitional and Special Provisions.

Article 35A of the Constitution of India - References to the commencement of the Constitution shall be construed as references to the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954 with effect from 14 May 1954.

Earlier in September 2015, Delhi HC had admitted a plea challenging the constitutional validity of the Article 370.

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