SC Says Only Parliament Can Take Call On Article 370

31 October 2015
The Daily Excelsior
Neeraj Rohmetra

Jammu: The Supreme Court has ruled that only Parliament can take a call on scrapping Article 370 of the Constitution of India, which accords special status to the State of Jammu and Kashmir and dismissed a Public Interest Litigation (PIL) filed by Purshotam Yadav. A division bench of Supreme Court headed by Chief Justice HL Dattu and comprising Justice Amitava Roy dismissed the petition filed by Yadav ruling that it was only the Parliament that can take the call on Article 370. The significant ruling by the Supreme Court came only days after Jammu and Kashmir High Court observed that Article 370 is a 'permanent' provision of the Constitution. The PIL filed by Purshotam Yadav wanted removal of Article 370 from the Constitution of India that grants special status to Jammu and Kashmir. Refusing to entertain the PIL, the Supreme Court said that the court cannot issue such directives. 'Will it be done by the Court or by Parliament? Can we ask Parliament to delete a provision from the Constitution? It is not for this court to do so,' the bench observed. An Andhra Pradesh based lawyer, Yadav argued before the Supreme Court that the issue required interference by the apex court. However, the bench turned down his plea. 'We can strike down a provision if it is unconstitutional but we cannot ask Parliament to remove a provision. It has to be done by them (Parliament),' the bench said and asked Yadav to file a better petition if he intends to pursue this matter any further. Yadav, in his petition, had requested the court to quash Article 370 and make all laws, which are applicable to other States, also valid for Jammu and Kashmir. The plea also sought direction for removal of the words 'except Jammu and Kashmir' from all the pertinent statutes where laws are made applicable to all other States and Union Territories. According to Yadav, Article 370 and the consequent Presidential Order abridge the Constitutional scheme and also violate Part III, which relates to the fundamental rights of people and comprises the basic structure. He pointed out that Article 370 has been titled as a 'temporary provision' that makes it amply clear that it had to go after some time. Earlier this month, the J&K High Court had observed that notwithstanding its title 'temporary provision', Article 370 is a permanent provision of the Constitution. 'It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available,' the court observed in its judgment on a case challenging the reservation benefit in promotions to the employees. Noting that Article 35A protected the existing laws of the State, the High Court said that Jammu and Kashmir had retained limited sovereignty while acceding to the Dominion of India, and did not merge with the Dominion of India like the other princely states that signed the Instrument of Accession. It said that the Constituent Assembly of 1957 was empowered to recommend to the President that Article 370 be declared to cease to be operative or operate only with the exceptions and modifications, but it did not make such a recommendation before its dissolution on January 25, 1957. It had added Article 370 embodied 'conceptual framework of relationship' between the Union of India and J&K.

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