Article 370 cannot be abrogated, repealed or amended — J and K HC

Newsroom24x7 Desk

J and K MapSrinagar : The burning debate of special status of Jammu and Kashmir found a halt, and came to rest as Jammu and Kashmir High Court issued its ruling on the matter. The HC said Article 370 enshrined in Constitution of India cannot be abrogated, repealed or even amended. The High Court also observed that replacing the post of ‘Sadar-e-Riyasat’ with Governor was ‘not within the amending power of the state legislature’. The HC also called for hoisting of state flag on all government buildings and vehicles to adhere to the mandate and spirit of J and K Prevention of Insult to State Honor Act 1979.

The judgement, which can be stated as a landmark ruling, in which Justice Hasnain Masoodi stated clarifications, revealed that Article 370 cannot be altered for two reasons, namely — one, the mechanism provided under Clause (3) Article 370 is no more available, and two, the Constituent Assembly is presumed to have taken informed decision, not to recommend modification or change in the Article and to allow it to remain in the same form even after Constitution of the state came into force on January 26, 1957. The Judge stated thus — the expression ‘temporary’ or ‘transitional’ is used only to indicate that Constituent Assembly envisioned by Article 370 was to take a final decision as regards Constitutional relationship between the state and the Union. Two important aspects of the Constitutional autonomy – nature of consultation and concurrence, contemplated under Article 370 and change in extent of autonomy, also need to be examined, in the present context.

The Judge detailed the statement and added, Article 370 of the Constitution embodies conceptual framework of relationship between Union of India and state and lays down broad features of special status granted to the state. In his words — As already pointed out, at the same time confers power on the President to deal with the areas otherwise within domain of the state, subject to consultation or concurrence with the state. Article 370 is the only provisions of the Constitution that applies to the State, on its own…the elective status of Head of the State was an important attribute of Constitutional autonomy enjoyed by the state, a part of ‘Basic Framework’ of the state Constitution and therefore not within the amending power of the state legislature.

The court also issued directives asking the government to hoist the state flag on all government buildings and vehicles and adhere to and abide the mandate and spirit of J and K Prevention of Insult to State Honor Act 1979.

BJP, a ruling alliance partner of PDP, however reacted cautiously to the judgment saying they were focused on good governance under the agenda of alliance. BJP spokesperson at Srinagar, Khalid Jehangir, told media persons, ‘We are focused on providing good governance to the state.’

The AIP (Awami Ithaad Party) supremo and MLA Langate Sheikh Abdul Rashid welcomed the HC judgement and informed his decision to introduce a bill in the coming assembly session to make the necessary amendments so that, according to him, the huge errors done wrto J and K, could be rectified. He told to media — It is high time for all the political parties to support the bill without excuses and explanations. The restoration of Sardar-e-Riyasat and post of Prime Minister would not mean a permanent solution to the dispute of Jammu and Kashmir but will be an act to respect the court orders and a move to satisfy the sentiments of masses.

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