Article 370 can’t be abrogated, repealed or amended, rules J&K HC
Replacing the post of ‘Sadar-e-Riyasat’ with Governor was against the basic structure of the Constitution
Putting the debate on the state’s special status to rest, Jammu and Kashmir high court said Article 370 enshrined in the Constitution of India cannot be abrogated, repealed or even amended. The high court also noted that replacing the post of ‘Sadar-e-Riyasat’ with Governor was “not within the amending power of the state legislature” and called for hoisting of state flag on all government buildings and vehicles to adhere to the mandate and spirit of J&K Prevention of Insult to State Honour Act 1979.
In a landmark judgment, Justice Hasnain Masoodi said Article 370 cannot be abrogated, repealed or even amended, not only because the mechanism provided under Clause (3) Article 370 is no more available, but also because the Constituent Assembly is presumed to have taken informed decision, not to recommend modification or change in the Article and to allow it to remain in the same form even after Constitution of the state came into force on January 26, 1957. “The expression ‘temporary’ or ‘transitional’ is used only to indicate that Constituent Assembly envisioned by Article 370 was to take a final decision as regards Constitutional relationship between the state and the Union. Two important aspects of the Constitutional autonomy – nature of ‘consultation and “concurrence’ — contemplated under Article 370 and change in extent of autonomy, also need to be examined, in the present context,” the judge said.
Elaborating, he said, 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. “As already pointed out, at the same time confers power on the President to deal with the areas otherwise within domain of the state, subject to consultation or concurrence with the state. Article 370 is the only provisions of the Constitution that applies to the State, on its own…” he said. Justice Masoodi also observed that replacing the post of ‘Sadar-e-Riyasat’ by Governor in 1965 was against the “basic framework of the Constitution” and beyond amending power of state legislature. “The elective status of Head of the State was an important attribute of Constitutional autonomy enjoyed by the state, a part of ‘Basic Framework’ of the state Constitution and therefore not within the amending power of the state legislature,” he said.
The court also directed the government to hoist the state flag on all government buildings and vehicles and adhere to and abide the mandate and spirit of J&K Prevention of Insult to State Honour Act 1979. BJP, a ruling alliance partner of PDP, however reacted guardedly to the judgment saying they are focused on the good governance under the ambit of agenda of alliance. “We are focused on providing good governance to the state,” said Khalid Jehangir, spokesman of BJP at Srinagar. Welcoming high court judgment, Awami Ithaad Party (AIP) supremo and MLA Langate Sheikh Abdul Rashid aka Rashid has decided tointroduce a bill in the coming assembly session to make the necessary amendments so that the huge errors done are rectified.
“It is high time for all the political parties to support the bill without excuses and explanations. The restoration of Sardar-e-Riyasat and post of Prime Minister would not mean a permanent solution to the dispute of Jammu and Kashmir but will be an act to respect the court orders and a move to satisfy the sentiments of masses,” he said.
