New Delhi: Two weeks after the Jammu and Kashmir HC observed that Article 370 is a ‘permanent’ provision of the Constitution, the Supreme Court on Friday said that only Parliament can take a call on scrapping Article 370, said a report in Indian Express.
The Article 370 accords special autonomous status to Jammu and Kashmir. Refusing to entertain a PIL that wanted Article 370 removed from the Constitution, a bench led by Chief Justice HL Dattu said that the apex court cannot decide on the matter.
“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,” observed the bench.
PIL petitioner BP Yadav, a lawyer based in Andhra Pradesh, wanted the Supreme Court to quash Article 370, but the bench turned down his plea. “We can strike down a provision if it is unconstitutional but we cannot be asking Parliament to remove a provision. It has to be done by them (Parliament),” said the bench.
The plea had 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. Yadav contended that 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.
However earlier this month, the J&K High Court had taken a contradictory stand. It 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 “It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available,” the court observed in its judgement.
Noting that Article 35A protected the existing laws of the state, the High Court said that Jammu and Kashmir had retained limited sovereignty while acceeding 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.