Srinagar: Notwithstanding its title showing it a “temporary provision” in constitution of India, Article 370 is beyond amendment, repeal or abrogation, the J&K high court has ruled in a land mark judgment.
“State of 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. The State continues to enjoy special status to the extent of limited sovereignty retained by the State and (it) stands guaranteed under Article 370 of the Constitution – only provision of the Constitution that applied to the State ex-propriogorige or on its own,” said a division bench of Justices Hasnain Massodi and Janak Raj while deciding a bunch of petitions questioning as to whether the provisions of the J&K Reservation Act, 2004 and the rules can be enforced in the absence of the applicability of Article 16 (4A) of the Constitution of India to the State.
“The only other provision applied to the State by the Constitution itself, is Article 1 made applicable by sub clause (c) clause (1) Article 370. The Constituent Assembly in terms of proviso to Clause (3) Article 370 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 mentioned in the recommendation, if any so made. It is only on such recommendations that the President by public notification declare that Article 370 shall cease to be operative or shall be operative only with such exceptions and modifications and from such date, specified in the notification. The Constituent Assembly did not make such a recommendation before its dissolution on January 25th, 1957. Resultantly, Article 370, notwithstanding its title showing it a “temporary provision” is a permanent provision of the Constitution, it cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available,” the bench said.
Furthermore, the bench said, Article 368 (Amendment of the Constitution of India is the process of making changes to the nation’s fundamental law or supreme law) cannot be pressed into service in this regard, inasmuch as it does not control Article 370.
“The State as on date continues to enjoy autonomy in areas covered by the provisions of Constitution not extended to (it). Most of the provisions of the Constitution applied to the State are extended with exceptions and modifications to maintain and preserve special status granted to the State. To suit autonomy granted to the State, provisions like Article 35A and proviso to Article 253 and proviso to Clause 2 Article 368 have been added to the provisions of Constitution, as applied to the State. The Article 35A gives protection to existing laws in force in the State and to any law enacted after 1954 by the State legislature, defining the classes of persons treated as permanent residents of the State, conferring on permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects employment in the State Government, acquisition of immovable property in the State, settlement in the State or right to scholarship and other aids granted by the State.”
Proviso to Article 253, the court said, even guarantees a say or role to the Government of the State in decision affecting the disposition of the State.
“In terms of Proviso to Clause (2), Article 368 no amendment made to the Constitution is to have effect in relation to the State, unless applied by the order of the President under Clause (1) of Article 370,” the court said.
Resultantly, the court said, amendment to Article 16 made by 77th Amendment Act adding clause (4A) to it is not applicable to the State as the amendment has not been applied by President as provided under Clause (1) Article 370.
Finally, the court struck down the Section 6 of Reservation 2004 which authorizes the Government for providing reservation in promotion, Rule 9 which provides percentage of reservation to various categories and Rule 10 which provides roaster points for reserved category while making promotions. The court also struck down Rule 34 which obligates the Government to consider reserved categories while making temporary/stop-gap/officiating promotions.