SRINAGAR: Ten days after dismissing a petition challenging continuity of Article 370 of Indian constitution, Delhi High Court on Wednesday sought ‘written arguments’ from state as well as the government of India on a plea challenging 1954 Presidential Order that prevents applicability of any amendment in Constitution of India to Jammu and Kashmir.
A division bench headed by Chief Justice and comprising Justice Deepa Sharma asked the counsel representing both GoI and the state government to submit the written arguments, disclosing respective stands, by next date of hearing in the petition on September 17
On previous hearing, the state government referred to two constitutional judgments by the Supreme Court—Pooranlal Lakhanpal Vs President of India and Sampant Prakash Vs State of J&K and others— settling the matter.
On April 9, the Delhi High Court dismissed as ‘merits less’ a petition, stressing that the Article 370 of the Indian constitution, which gives special status to J&K, is a temporary provision which lapsed in 1954/57.
The petitioner— Kumari Vijayalakshmi Jha—had also stated that a perusal of the Constituent assembly debate would show that the maximum life of Article 370 was prescribed up to the existence, continuance of Jammu and Kashmir Constituent Assembly and as such the Article has ceased to exist.
“As per the judgment of the Supreme Court, though as per marginal note Article 370 is a temporary provision, it will, however, continue to remain in force until the specified event in clause of the 370 Article takes place. It also noted that the Article remains in current usage. In view of the authoritative pronouncement (by the SC) it is clear that the submission of the petitioner has no merits,” the court had said.
It court had also observed that pleas raised by Jha stand fully rebutted by the Apex Court in a recent judgment in State Bank of India vs. Santosh Gupta and Another, (2017).
“The Supreme Court in paragraphs 14 and 15 held that the first thing that is noticed in Article 370 is that the marginal note states that it is a temporary provision with respect to the State of Jammu & Kashmir. However, unlike Article 369, which is also a temporary provision limited in point of time to five years from the commencement of this Constitution, no such limit is to be found in Article 370. Despite the fact that it is, therefore, stated to be temporary in nature, sub-clause (3) of Article 370 makes it clear that this Article shall cease to be operative only from such date as the President may by public notification declare. And this cannot be done under the proviso to Article 370 (3) unless there is a recommendation of the Constituent Assembly of the State so to do,” the apex court had said.
In Sampat Prakash v. the State of Jammu & Kashmir,(1969), it was held that the Article will cease to operate under sub-clause (3) only when a recommendation is made by the Constituent Assembly of the State to that effect. It was found that in fact the Constituent Assembly of the State had made a recommendation that the Article should be operative with one modification to be incorporated in the explanation to clause (1) of the Article, namely, that the Maharaja of Jammu & Kashmir be substituted by the expression “Sadar-I-Riyasat of Jammu & Kashmir”.
It is important to note, the apex court had said, that Article 370 (2) does not in any manner state that it shall cease on the completion of the work of the Constituent Assembly or its dissolution. “Having regard to all these factors, this Court clearly held that though the marginal note refers to Article 370 as only a temporary provision, it is in fact in current usage and will continue to be in force until the specified event in sub-clause (3) of the said Article takes place. It was further held by the Sampat Prakash judgment that Section 21 of the General Clauses Act, 1897 was also applicable so that the power under this Article can be used from time to time to meet with varying circumstances.”