J&K retains limited sovereignty, says high court
SRINAGAR: The high court in India-held Kashmir has ruled that while acceding to the Dominion of India, Jammu and Kashmir did not merge with it but retained limited sovereignty.
“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 court said in its 60-page judgment.
It also said that Article 370 of the Indian Constitution, which grants the state a special status, is “permanent” and “beyond amendment, repeal or abrogation”.
‘Article 370, which grants the state a special status, is permanent’
“Article 370... has assumed a place of permanence in the constitution,” the court said.
“The constitutional framework worked out by the Dominion of India and the state reflected in Article 370 has its roots in paras 4 and 7 of the Instrument of Accession,” it went on to say.
The parliament’s legislative power over J&K is confined to three subjects mentioned in the instruments of accession — defence, foreign affairs and communications.
“The president, however, has the power to extend to the state other provisions of the constitution as also other laws that relate to the subjects specified in the Instrument of Accession. While extending such provisions and laws, the exercise of the power involves consultation with the state government,” the court said. But, it added, only “consultation” was required, not concurrence.
The division bench of the court observed that the state’s constituent assembly (of 1957) was given the power to recommend to the president that Article 370 be declared to cease to operate, and that it did not make such a recommendation before its dissolution on January 25, 1957.
Therefore, the court said, “It (Article 370) is beyond amendment, repeal or abrogation in as much as the constituent assembly of the state, before its dissolution, did not recommend its amendment or repeal”.
The judgment has assumed significance because a petition challenging Article 35A, which upholds its special status, has been submitted in the high court. The J&K assembly’s autumn session was also rocked by protests demanding a discussion on 35 A that was disallowed by the speaker.
Published in Dawn, October 17th, 2015
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