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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