- Article 370 of the Constitution is the foundation of the constitutional relationship between Jammu and Kashmir and the rest of India. With its abrogation being an avowed policy of the Bharatiya Janata Party, the J&K High Court’s recent observation that the provision has acquired a state of permanence may cause some disquiet in the party and the government.
- However, the High Court’s comment should be seen in the limited context in which it was made. Its comment that Article 370 is beyond amendment, repeal or abrogation stems from an analysis of the question whether the section had become non-functional after the State’s Constituent Assembly framed its Constitution, and then the Constituent Assembly was dissolved.
- In fact, the question whether its temporary provisions had acquired permanence was not before the court; nor was the court hearing a challenge to the validity of the Article per se. It was dealing with the validity of reservation in promotions among government employees in J&K.
- Ultimately, it struck down the provision for quotas in promotions on the ground that clause 4A of Article 16, introduced by the Constitution (77th) Amendment to protect reservation in promotions, was not applicable to J&K.
- This is because there is no Presidential Order making the new clause applicable to the State. One of the features of Article 370 is that a Constitution amendment becomes applicable to J&K only after the President issues an order. Without the protection of the clause, there is no scope for reservation in promotions, as the Supreme Court had barred such quotas in Indra Sawhney.
- The High Court verdict has not come up with something new. If anything, it is a repetition of earlier SC rulings that Article 370 continues to be functional and operative.
- It impliedly rules that the President’s power to issue orders, as has been done over the years making several laws and provisions of the Constitution applicable to J&K, remains unhampered.
- By reiterating the core necessity that even provisions giving constitutional protection require the use of Article 370 and orders issued under its imprimatur, the court has reaffirmed that importance of the Article and showcased how repealing it will enfeeble the legal basis for J&K to be a part of India, as the accession was linked to it being granted the special status.
- Some may find the observation that Article 370 is beyond repeal or abrogation debatable. Parliament’s amending power under Article 368 remains available for such a measure, but it is far wiser for any dispensation to wait for a resolution of the dispute with Pakistan over the entirety of Kashmir’s territory before revisiting the State’s constitutional status. Any premature action on this front may be a needless misadventure.