Contents
· HC order on Article 370
· About J& K High Court
· Article 35 A of the Indian Constitution
· Text of Article 35A
· Article 370 of the Indian constitution
· Separate constitution for J&K
· The power of Parliament to make laws for J&K
· Conclusion
HC order on Article 370
· J&K High Court passed an order which states that Article 370, which grants special status to the State, is beyond amendment, repeal or abrogation.
· The court also said that Article 35A gives “protection” to existing laws in force in the State.
· “Article 370 though titled as ‘Temporary Provision’ and included in Para XXI titled ‘Temporary, Transitional and Special Provisions,’ has assumed place of permanence in the Constitution”.
This is a very interesting judgment. Let us first look at the background concepts.
About J& K High Court
· J&K constitution (not Indian Constitution) establishes a high court consisting of a chief justice and two or more other judges.
· They are appointed by the president in consultation with the Chief Justice of India and the Governor of the state.
· The judgments passed by J&K High Court can be questioned in Supreme Court.
· [The special leave jurisdiction of the Supreme Court and the jurisdictions of the Election Commission and the comptroller and auditor general are applicable to the state of J&K]
Article 35 A of the Indian Constitution
· Article 35A was not added to the Constitution by following the procedure prescribed for amendment of the Constitution of India under Article 368.
· It was adopted after an executive order. The Constitution (Application to Jammu and Kashmir) Order, 1954 was issued by the then Indian President. (This makes the law highly Unconstitutional – laws are to be made by the legislature and not the executive)
· Article 35A gives “protection” to existing laws in force in the State. [Certain Laws related to J&K cannot be altered by the existing laws or any other future laws, not even by the state government]
Text of Article 35A
· Saving of laws with respect to permanent residents and their rights.- Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State: -
1. defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (Permanent Resident is the one defined under J&K constitution. According to Article 35A, this definition of Permanent Resident cannot be altered no matter what the circumstance is.)
2. conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects;
3. employment under the State Government;
4. acquisition of immovable property in the State; (Outsiders cannot buy property in J&K)
5. settlement in the State; or
6. right to scholarships and such other forms of aid as the State Government may provide,
7. shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part."
· This Article has caused a lot of trouble to some residents because of so many loopholes associated. This is a different topic and I will write a separate post later.
Article 370 of the Indian constitution
· Law that grants special autonomous status to the state of Jammu and Kashmir.
· Under Article 1, J&K is an integral part of Indian Union.
· Article 370 under Part XXI grants a special status to it.
· [Part XXI of the Constitution - Temporary, Transitional and Special Provisions].
· Under Article 370, J&K has its own separate state Constitution.
· All the provisions of the Constitution of India do not apply to it.
· Part VI of the Constitution of India (dealing with state governments) is not applicable to this state.
· An amendment made to the Constitution of India does not apply to the state unless it is extended by a presidential order (with states consent only) (But Article 35A was enforced without passing a law by the parliament).
· This article specifies that the state must concur in the application of laws, except those that pertain to Communications, Defense, Finance, and Foreign Affairs.
· Similar protections for unique status exist in tribal areas of India including those in Himachal Pradesh, Arunachal Pradesh, Andaman & Nicobar Islands and Nagaland.
Separate constitution for J&K
· J&K became independent on 15 August 1947.
· Maharaja Hari Singh, decided not to join India or Pakistan.
· In October 1947, the Azad Kashmir Forces supported by the Pakistan army attacked J&K.
· The ruler of the state decided to accede the state to India.
· Accordingly, the ‘Instrument of Accession of Jammu and Kashmir to India’ was signed (26 October 1947)
· Under this, the state surrendered only three subjects (defense, external affairs and communications) to the Dominion of India.
· Government of India made a commitment that ‘the people of this state, through their own Constituent Assembly, would determine the internal Constitution of this state and the nature and extent of the jurisdiction of the Union of India over the state.
· In pursuance of this commitment, Article 370 was incorporated in the Constitution of India.
· Article 370 clearly states that the provisions with respect to the State of J&K are only temporary and not permanent.
· This is how a separate constitution for J&K came into existence.
The power of Parliament to make laws for J&K
· The power of Parliament to make laws for the state is limited to: (a) Those matters in the Union List and the Concurrent List which correspond to matters specified in the state’s Instrument of Accession.
· These matters are to be declared by the president in consultation with the state government.
· The Instrument of Accession contained matters classified under four heads, namely, external affairs, defense, communications and ancillary matters
And
· Such other matters in the Union List and the Concurrent List which are specified by the president with the concurrence of the state government. (Without out the acceptance of the state government of J&K, no other law can be imposed)
· This means that laws can be made on these matters only with the consent of the State of J&K.
Conclusion
· Coming to the judgment of HC of J&K, the judgment is based on Article 35A which in itself is unconstitutional.
· Once appealed in SC, this judgment of J&K High Court is most likely to be struck down.
· If SC overturns the order of HC, it will be welcomed by the present government.
· If SC doesn’t overturn the order of HC, even then it will be welcomed by the present government (informally) because then will have an excuse to get away without implementing their fake promise of repealing Article 370.
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