Libertatem Magazine

Article 370 conferring Special Status on Jammu and Kashmir Assumes permanent status which is beyond Amendment, Repeal or Abrogation

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The Supreme Court has clearly stated that Article 370 of the Constitution, conferring special status on Jammu and Kashmir and limiting the Central government’s power to make laws for the state, had acquired permanent status through years of existence, making its abrogation impossible. Though there are a collection of documents on Article 370 of the Constitution of India contains ‘temporary provisions’ with respect to the State of Jammu and Kashmir but now it transcends any changes. Article 370 traces the constitutional evolution of the state and its relationship with the union of India.

The controversial provision was drafted by Sheikh Abdullah. Sheikh Abdullah did not want temporary provisions for Article 370. He ‘iron clad autonomy’ for the state.

The observation came from a bench of Justices Adarsh K Goel and R F Nariman on a petition by Kumari Vijayalakshmi Jha, who sought a declaration that Article 370 was a temporary provision that lapsed with the dissolution of the J&K Constituent Assembly on January 26, 1957. She also sought a declaration that the constitution of J&K was void, inoperative and in breach of the Constitution.

Recommended By Colombian Justice Nariman drew additional solicitor general Tushar Mehta’s attention to the SC’s 2017 judgment in State Bank of India vs Santosh Gupta case and said the controversy over Article 370 was settled by the court ruling the provision had acquired permanent space in the Constitution and it could no longer be abrogated.

Order of the Supreme Court

The SC had said since the Constituent Assembly of the state ceased to exist, the President would not be able to fulfil the mandatory provision of getting its recommendation for its abrogation.

This hypocrisy is the GIFT of Nehru the great. And unless Article 370 is abolished and the special status is removed at par with rest of India, Kashmir issue will never get resolved.

Appearing for J&K, senior advocate Rajeev Dhavan and additional advocate general M Shoeb Alam refuted the Centre’s claim that a similar petition was the pending consideration before a bench headed by CJI Dipak Misra. Dhavan said the issue pending consideration related to the validity of Article 35(c) of the Constitution and not Article 370.

Centre To Respond Within Three Weeks

The Centre has received three weeks time from the Supreme Court to respond to a petition challenging the validity of Article 370 of the Constitution that confers special status on the state of Jammu and Kashmir, even as the top court said that the issue needs no consideration because a 2016 judgment had settled the issue.

A bench of justices AK Goel and Rohinton Nariman told the petitioner’s lawyer that a 2016 judgement had held Article 370 was not a temporary provision. “The issue is already decided in our judgment where we have said that despite the fact the headnote says it’s a temporary provision, it’s not,” Justice Nariman told the petitioner’s counsel, Anil Kumar Jha.

The Bharatiya Janata Party has been consistent in its opinion that Article 370 should be scrapped, although the BJP-led National Democratic Alliance government informed Parliament last month that there are currently no plans to do so.

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