Jammu and Kashmir High Court in its recent ruling has ruled that Article 370, granting special status to the state, has assumed place of permanence in the Constitution and the feature is beyond amendment, repeal or abrogation.The Court also said that Article 35A gives “protection” to existing laws in force in the State.A division bench of Justice Hasnain Masoodi and Janak Raj Kotwal said in its judgment “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.”
The bench added by saying “It is beyond amendment, repeal or abrogation, in as much as Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal.”The Court also observed that the President under Article 370 (1) is conferred with power to extend any provision of the Constitution to the State with such “exceptions and modifications” as may be deemed fit subject to consultation or concurrence with the State Government.”And such power would include one to amend or alter the provision to be applied, delete or omit part of it, or make additions to the provisions proposed to be applied to the State. Such power would extend even in case of provisions of the Constitution already applied,” the court said.”State continues to enjoy special status to the extent of limited sovereignty retained by it.”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 only other Constitutional provision made applicable by Article 370 of the Constitution to the State is Article 1.”No other provision of the Constitution as provided under Article 370 (1), would be applicable to the State except, by Presidential order in consultation with the State in case the provision is akin to subjects delineated in Instrument of Accession and with concurrence of the State, in case it does not fall within ambit of Instrument of Accession.”