J and K High Court saves Article 370 but the
battle is far from over
14
October 2015
On 9 October, a Division
Bench of the Jammu and Kashmir High Court ruled that Article 370 has assumed
place of permanence in the Constitution of India and that the feature is
"beyond amendment, repeal or abrogation". This should have put an end
to the debate surrounding Article 370. But those demanding its repeal haven't
given up.
What the order says
The Jammu and Kashmir Constituent Assembly was formed to draft
the Constitution of the state determine "the sphere of the Union's
jurisdiction over the state".
It had the power to
recommend to the President that Article 370 must cease to apply or that it must
continue with modifications.
But since the
Constituent Assembly made no such recommendation before it was dissolved on 25
January, 1957, Article 370 became a permanent provision of the Constitution,
even though it was supposed to be a "temporary provision"
Many see the RSS-backed petition
against Article 35A is as a threat to J&K's Muslim identity
The Constituent Assembly which began its work on 31 October, 1951
decided that laws passed by the Parliament of India can be applied to J&K
only after consultation with the state government.
J&K, unlike other states, has its own Constitution. It maps out the
extent of its executive and legislative powers and its relationship with the
Union of India.
The Division Bench headed by Justice Hasnain Masoodi and Justice Janak Raj
Kotwal further observed: "Jammu and Kashmir while acceding to Dominion of
India, retained limited sovereignty and did not merge like other princely
states that signed the Instrument of Accession".
Soon after the order, the Union ministry of home affairs sought a report
from the J&K government in addition to a copy of the High Court order.
Unless there is a legal challenge, the High Court order has pre-empted
the ongoing attempts to repeal or dilute Article 370.
The petition against Article 35A
One such attempt is a petition against Article 35A filed in the Supreme
Court by an RSS-linked think tank called J&K Study Group.
Article 35A which was extended to the state through a 1954 Presidential
Order gives protection to the state subject laws in J&K. Under these laws,
outsiders are not allowed to acquire property in the state.
The petition terms this provision as "unconstitutional" since
it was added by a Presidential Order and not through Parliament.
For RSS-affiliated groups, the primary bone of contention is Article 35A
and not Article 370.
Many of them believe that the only way to resolve Kashmir issue is
through a sweeping demographic change in the state.
"Article 35A enables the state Assembly of J&K to define
'permanent residents' and give them special privileges. The ambit of permanent
residents was deliberately kept narrow to exclude several communities...This
distinction was arbitrary and archaic," said Aniruddha Rajput, counsel for
the petitioner.
However, many lawyers point out that the Supreme Court has consistently
dismissed petitions questioning Article 370 and its provisions.
According to Zafar Shah "A successful challenge to Article 35A will
have far-reaching political and legal consequences. Politically it will be seen
as an assault on the Muslim identity of J&K. And legally, if Article 35A
goes, so will all the Presidential orders from 1954 to 1975 that diluted
J&K's special status ".
Political impact
The order on Article 370 and the petition against Article 35A have
charged the political atmosphere in the state.
On 11 October, Kashmir Centre for Social and Development Studies held a
roundtable conference that was attended by senior lawyers. The group called for
a "people's movement" to defend Article 35A.
"If Article 35 A goes, permanent residents will no longer have
protection on matters like employment and acquisition of property," said
Zafar Shah, a noted Kashmiri lawyer.
According to a lawyer, J&K
governments in the past have made far-reaching changes to Article 370
There is broad agreement among lawyers on the validity of the High Court
order on Article 370.
According to advocate Syed Riyaz Khawar: "In my opinion even if the
Constituent Assembly ceased to exist, the Legislative Assembly got vested with
its powers. So if the Assembly recommends abrogation of Article 370 with a
two-thirds majority, it should be legally valid."
Constituent Assembly versus
Legislative Assembly
According to Khawar, J&K governments in the past have made
far-reaching changes to Article 370. For instance, the GM Sadiq government got
an amendment passed in the Assembly, changing the nomenclature of the head of
state from Sadar-i-Riyasat (President) to Governor and for the head of
government from Prime Minister to Chief Minister.
Under Sadiq, the provisions of Articles 356 and 357 of the Indian
Constitution became applicable to J&K. This gave the Centre the right to
impose President's Rule in J&K.
Mian Qayoom, the president of High Court Bar Association, disagrees.
"It is written in Article 370 itself that only a Constituent Assembly can
recommend its abrogation. There is no mention of a Legislative Assembly. Since
the Constituent Assembly has been dissolved, Article 370 has become
permanent"
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