Article 370 is permanent: J&K HC

[The_Showstopper]

Article 370 is permanent: J&K HC

"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," a division bench of justices Hasnain Masoodi and Janak Raj Kotwal ruled in a 60-page judgement.

SRINAGAR: Jammu and Kashmir high court has ruled that Article 370, granting special status to the state, has assumed place of permanence in the Constitution and the feature is beyond amendment, repeal or abrogation.

The court also said that Article 35A gives "protection" to existing laws in force in the state.

"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," a division bench of justices Hasnain Masoodi and Janak Raj Kotwal ruled in a 60-page judgement.

"It is beyond amendment, repeal or abrogation, in as much as Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal," the bench added.

The court also observed that the President under Article 370 (1) is conferred with power to extend any provision of the Constitution to the state with such "exceptions and modifications" as may be deemed fit subject to consultation or concurrence with the state government.

"And such power would include one to amend or alter the provision to be applied, delete or omit part of it, or make additions to the provisions proposed to be applied to the State. Such power would extend even in case of provisions of the Constitution already applied," the court said.

In the circumstances, the court said, additions made to the existing Constitutional provisions through various Constitution (Application to Jammu and Kashmir) orders on their application to the State like Proviso 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 did not merge with Dominion of India, like other Princely States.

"State continues to enjoy special status to the extent of limited sovereignty retained by it.

"The limited sovereignty or special status stands guaranteed under Article 370 - the only provision of the Constitution that applied to the State on its own. The only other Constitutional provision made applicable by Article 370 of the Constitution to the State is Article 1.

"No other provision of the Constitution as provided under Article 370 (1), would be applicable to the State except, by Presidential order in consultation with the State in case the provision is akin to subjects delineated in Instrument of Accession and with concurrence of the State, in case it does not fall within ambit of Instrument of Accession," the court said.

Article 370 is permanent: J&K HC - The Times of India

 

[dadeechi]

Article 370 is permanent: J&K HC

"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," a division bench of justices Hasnain Masoodi and Janak Raj Kotwal ruled in a 60-page judgement.

SRINAGAR: Jammu and Kashmir high court has ruled that Article 370, granting special status to the state, has assumed place of permanence in the Constitution and the feature is beyond amendment, repeal or abrogation.

The court also said that Article 35A gives "protection" to existing laws in force in the state.

"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," a division bench of justices Hasnain Masoodi and Janak Raj Kotwal ruled in a 60-page judgement.

"It is beyond amendment, repeal or abrogation, in as much as Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal," the bench added.

The court also observed that the President under Article 370 (1) is conferred with power to extend any provision of the Constitution to the state with such "exceptions and modifications" as may be deemed fit subject to consultation or concurrence with the state government.

"And such power would include one to amend or alter the provision to be applied, delete or omit part of it, or make additions to the provisions proposed to be applied to the State. Such power would extend even in case of provisions of the Constitution already applied," the court said.

In the circumstances, the court said, additions made to the existing Constitutional provisions through various Constitution (Application to Jammu and Kashmir) orders on their application to the State like Proviso 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 did not merge with Dominion of India, like other Princely States.

"State continues to enjoy special status to the extent of limited sovereignty retained by it.

"The limited sovereignty or special status stands guaranteed under Article 370 - the only provision of the Constitution that applied to the State on its own. The only other Constitutional provision made applicable by Article 370 of the Constitution to the State is Article 1.

"No other provision of the Constitution as provided under Article 370 (1), would be applicable to the State except, by Presidential order in consultation with the State in case the provision is akin to subjects delineated in Instrument of Accession and with concurrence of the State, in case it does not fall within ambit of Instrument of Accession," the court said.

Article 370 is permanent: J&K HC - The Times of India

Interesting... How can Judiciary determine what should be the Law. Judiciary's domain is limited to interpretation of the Law. Amendment of the constitution is the domain of the Parliament.

 

[Providence]

Interesting... How can Judiciary determine what should be the Law. Judiciary's domain is limited to interpretation of the Law. Amendment of the constitution is the domain of the Parliament.

My first reaction actually. No law has any permanency. Article 370 seems to be a sensitive topic though.

 

[VCheng]

My first reaction actually. No law has any permanency. Article 370 seems to be a sensitive topic though.

The rationale was provided as well: "It is beyond amendment, repeal or abrogation, in as much as Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal," the bench added.

 

[dadeechi]

The rationale was provided as well: "It is beyond amendment, repeal or abrogation, in as much as Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal," the bench added.

The preface to the constitution says it is a living document so how can anything be permanent.

PREFACE
Constitution is a living document, an instrument which makes the
government system work. Its flexibility lies in its amendments. In this edition,
the text of the Constitution of India has been brought up-to-date by
incorporating therein all amendments made by Parliament up to and including
the Constitution (Ninety-fourth Amendment) Act, 2006. The footnotes below
the text indicate the Constitution Amendment Acts by which such amendments
have been made.
The Constitution applies to the State of Jammu and Kashmir with certain
exceptions and modifications as provided in article 370 and the Constitution
(Application to Jammu and Kashmir) Order, 1954. This Order has been
included in Appendix I for facility of reference. Appendix II contains a
re-statement of the exceptions and modifications.

http://india.gov.in/sites/upload_files/npi/files/coi_preface.pdf


Constitution of India (Full Text) | National Portal of India

The preface to the constitution says it is a living document so how can anything be permanent.

PREFACE
Constitution is a living document, an instrument which makes the
government system work. Its flexibility lies in its amendments. In this edition,
the text of the Constitution of India has been brought up-to-date by
incorporating therein all amendments made by Parliament up to and including
the Constitution (Ninety-fourth Amendment) Act, 2006. The footnotes below
the text indicate the Constitution Amendment Acts by which such amendments
have been made.
The Constitution applies to the State of Jammu and Kashmir with certain
exceptions and modifications as provided in article 370 and the Constitution
(Application to Jammu and Kashmir) Order, 1954. This Order has been
included in Appendix I for facility of reference. Appendix II contains a
re-statement of the exceptions and modifications.

http://india.gov.in/sites/upload_files/npi/files/coi_preface.pdf


Constitution of India (Full Text) | National Portal of India

PART XX
AMENDMENT OF THE CONSTITUTION
368. 2[(1) Notwithstanding anything in this
Constitution, Parliament may in exercise of its constituent
power amend by way of addition, variation or repeal any
provision of this Constitution in accordance with the
procedure laid down in this article.]


http://india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf



If this judgment is taken as true, it also means that any future government of India cannot give away the Pakistan held Kashmir to Pakistan as part of the settlement of the Kashmir issue.

 

[ganesh623]

Nothing is permanant in this world.

Btw article 370 is a curse to kashmiri population, asap they get rid of it, more freedom they will enjoy in kashmir.

 

[Providence]

The rationale was provided as well: "It is beyond amendment, repeal or abrogation, in as much as Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal," the bench added.

Read it. Thanks but in a democracy, it's the permanency of the institution which is paramount not the members per se. So, if this constituent assembly is again formed in it's form and function, then why not ?

Also, you might have to go & check the constitutional validity of the provincial senate. If the constitution clearly states that THE body supersedes any earlier law making body or if it is the final law making body, then I don't understand the reason why the law cannot be changed.

 

[indianBong]

"Nothing is permanent in this wicked world" - Charlie Chaplin...

 

[third eye]

Interesting... How can Judiciary determine what should be the Law. Judiciary's domain is limited to interpretation of the Law. Amendment of the constitution is the domain of the Parliament.

My views too.

How can a ' temporary provision' be deemed permanent ?

1.The SC can overrule the views of the HC.

2. The constitution can be amended by a majority , the same applies at state level too.

 

[Bang Galore]

Interesting... How can Judiciary determine what should be the Law. Judiciary's domain is limited to interpretation of the Law. Amendment of the constitution is the domain of the Parliament.

My first reaction actually. No law has any permanency. Article 370 seems to be a sensitive topic though.

This is something that I have referred to in discussions on this topic where I argued that this might well be the interpretation by the higher judiciary. It follows from something known as the "basic structure doctrine", an Indian judicial principle that disallows any change to the constitution that it deems an alteration of the basic structure based on the premise that since Parliament itself is a product of the constitution, it cannot alter the fundamentals of that very constitution from which it derives its power . There have been arguments made that the courts might well deem Art.370 as part of the basic structure because of its connection with the accession of that state to the Union. This is only the HC which means a challenge is still possible but there is a good chance that the Supreme Court would go along with this reading.

For information:
Among those that are defined as basic to the constitution are:

1. Supremacy of the Constitution
2. Rule of law
3. The principle of Separation of Powers
4. The objectives specified in the Preamble to the Constitution
5. Judicial Review
6. Articles 32 and 226
7. Federalism
8. Secularism
9. The Sovereign, Democratic, Republican structure
10. Freedom and dignity of the individual
11. Unity and integrity of the Nation
12. The principle of equality, not every feature of equality, but the quintessence of equal justice;
13. The "essence" of other Fundamental Rights in Part III
14. The concept of social and economic justice — to build a Welfare State: Part IV in toto
15. The balance between Fundamental Rights and Directive Principles
16. The Parliamentary system of government
17. The principle of free and fair elections
18. Limitations upon the amending power conferred by Article 368
19. Independence of the Judiciary
20. Effective access to justice
21. Powers of the Supreme Court under Articles 32, 136, 141, 142
22. Legislation seeking to nullify the awards made in exercise of the judicial power of the State by Arbitration Tribunals constituted under an Act

 

[HariPrasad]

Nonsense. It shall be rejected by Supreme court. it is clearly in temporary measure.

 

[dadeechi]

This is something that I have referred to in discussions on this topic where I argued that this might well be the interpretation by the higher judiciary. It follows from something known as the "basic structure doctrine", an Indian judicial principle that disallows any change to the constitution that it deems an alteration of the basic structure based on the premise that since Parliament itself is a product of the constitution, it cannot alter the fundamentals of that very constitution from which it derives its power . There have been arguments made that the courts might well deem Art.370 as part of the basic structure because of its connection with the accession of that state to the Union. This is only the HC which means a challenge is still possible but there is a good chance that the Supreme Court would go along with this reading.

For information:
Among those that are defined as basic to the constitution are:

1. Supremacy of the Constitution
2. Rule of law
3. The principle of Separation of Powers
4. The objectives specified in the Preamble to the Constitution
5. Judicial Review
6. Articles 32 and 226
7. Federalism
8. Secularism
9. The Sovereign, Democratic, Republican structure
10. Freedom and dignity of the individual
11. Unity and integrity of the Nation
12. The principle of equality, not every feature of equality, but the quintessence of equal justice;
13. The "essence" of other Fundamental Rights in Part III
14. The concept of social and economic justice — to build a Welfare State: Part IV in toto
15. The balance between Fundamental Rights and Directive Principles
16. The Parliamentary system of government
17. The principle of free and fair elections
18. Limitations upon the amending power conferred by Article 368
19. Independence of the Judiciary
20. Effective access to justice
21. Powers of the Supreme Court under Articles 32, 136, 141, 142
22. Legislation seeking to nullify the awards made in exercise of the judicial power of the State by Arbitration Tribunals constituted under an Act

http://india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf

Page 243

(Part XXI.—Temporary, Transitional and Special
Provisions.—Art. 370.)


But Art 370 falls under "Temporary provisions with respect to the State of Jammu and Kashmir.". So how can it be considered permanent?

Nonsense. It shall be rejected by Supreme court. it is clearly in temporary measure.

It may be but the fact that the HC thinks it is permanent itself is concerning.

 

[Bang Galore]

http://india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf

Page 243

(Part XXI.—Temporary, Transitional and Special
Provisions.—Art. 370.)


But Art 370 falls under "Temporary provisions with respect to the State of Jammu and Kashmir.". So how can it be considered permanent?

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification

That body no longer exists. That is the reasoning of the high court.This is still a matter of debate & not withstanding what the HC said, is not a settled matter yet. Not till the SC pronounces its opinion. However I have read many legal opinions suggesting that the this could be the reading of the judiciary which is what I had said when this topic was under discussion.

 

[Hindustani78]

Home Ministry seeks report on J&K High Court order on Art 370 | Zee News
ast Updated: Monday, October 12, 2015 - 20:38

New Delhi: The Home Ministry on Monday sought a report from the Jammu and Kashmir government on the state High Court's order that Article 370, which grants special status to the state, is beyond amendment, repeal or abrogation.

In a communication, the Home Ministry sought a copy of the Jammu and Kashmir High Court order from the state government as early as possible, explaining the grounds in which the order was issued, official sources said.

The state law department is expected to forward the copy of the High Court ruling to the central government.

Jammu and Kashmir High Court has ruled that Article 370, has assumed place of permanence in the Constitution and the feature is beyond amendment, repeal or abrogation.

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

"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," a division bench of justices Hasnain Masoodi and Janak Raj Kotwal ruled in a 60-page judgement.

"It is beyond amendment, repeal or abrogation, in as much as Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal," the bench ruled.

The BJP has been demanding for long repeal of Article 370.

PTI

 

[SarthakGanguly]

Nothing is permanent.