J&K retains limited sovereignty, says high court
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SRINAGAR: The high court in India-held Kashmir has ruled that while acceding to the Dominion of India, Jammu and Kashmir did not merge with it but retained limited sovereignty.
“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 court said in its 60-page judgment.
It also said that Article 370 of the Indian Constitution, which grants the state a special status, is “permanent” and “beyond amendment, repeal or abrogation”.
‘Article 370, which grants the state a special status, is permanent’
“Article 370... has assumed a place of permanence in the constitution,” the court said.
“The constitutional framework worked out by the Dominion of India and the state reflected in Article 370 has its roots in paras 4 and 7 of the Instrument of Accession,” it went on to say.
The parliament’s legislative power over J&K is confined to three subjects mentioned in the instruments of accession — defence, foreign affairs and communications.
“The president, however, has the power to extend to the state other provisions of the constitution as also other laws that relate to the subjects specified in the Instrument of Accession. While extending such provisions and laws, the exercise of the power involves consultation with the state government,” the court said. But, it added, only “consultation” was required, not concurrence.
The division bench of the court observed that the state’s constituent assembly (of 1957) was given the power to recommend to the president that Article 370 be declared to cease to operate, and that it did not make such a recommendation before its dissolution on January 25, 1957.
Therefore, the court said, “It (Article 370) is beyond amendment, repeal or abrogation in as much as the constituent assembly of the state, before its dissolution, did not recommend its amendment or repeal”.
The judgment has assumed significance because a petition challenging Article 35A, which upholds its special status, has been submitted in the high court. The J&K assembly’s autumn session was also rocked by protests demanding a discussion on 35 A that was disallowed by the speaker.
Published in Dawn, October 17th, 2015
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Comments (51) Closed
Oct 17, 2015 07:20am
"beyond amendment, repeal or abrogation"... hence, India lose all authoritative & moral claims on the disputed land and all UN resolutions automatically become active and need of the hour. The oppressor must vacate the valley, the oppression must come to end and right of Self Determination must be granted to Kashmiris.
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Oct 17, 2015 07:29am
PM Modi, Article 370 grants status of J&K Prime Minister not a Chief Minister, would you standby the Indian Constitution?
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Oct 17, 2015 07:53am
Great victory for Kashmir cause and. People
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Oct 17, 2015 08:20am
In future, it will become full sovereignty.
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Oct 17, 2015 09:19am
It shows India's liberal tradition and it has been exploited by our enemies. Now, India should protect it's liberal traditions.
We are living amidst states who don't even know what independent judiciary is. Countries who don't even tolerate intellectual protests are exploiting India's liberal traditions to plant hatred towards India by creating law and order problems.
Terrorists and their sympathizers in Kashmir deliberately want innocents to be captured by law enforcement agencies so that in a democracy like India protests easily erupt leading to hatred. Indian government should expose their designs and work from the grassroots.
They terrorize (by targeted killings) pro-India journalists and intellectuals. Indian government should start tit for tat killings through secret operations. It is time India targeted terrorist leaders instead of just fighter terrorists.
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Oct 17, 2015 09:32am
Pakistan must vacate occupied Kashmir as per point 1 of UNSC resolutions!
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Oct 17, 2015 09:36am
All commenting individuals are not aware that plebiscite is not possible with Article 360 in place .
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Oct 17, 2015 09:54am
How can they talk about assembly when there are no elections . Indian army has 700000 soldiers there and they can do whatever they want in valley. They are just trying to confuse things by talking law. They can also remove article 370. I wonder why they have not removed this article in 68 years its just mere law and army should not believe in law or maybe they are not having this much power and talks of being army carrying atrocities is just bogus. we can also follow gilgit (rosy land ) model of governance.
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Oct 17, 2015 10:01am
Sounds all good and well for the people for J&K, I and many other Pakistanis (atleast most i come across) aren't physically embedded to the idea of Pakistan controlling all of Kashmir. For us it is more important that the people of Kashmir get their basic human rights and aren't persecuted as they have been since 1947.
It would be nice to see the Indian constitution being upheld and followed without any misconduct.
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Oct 17, 2015 10:41am
if its only defence, foreign affairs and communications then how come high court is able to decide what is what and what can or can not be done. is it working solely on State Law or its following Laws as per indian constitution. If yes then Constitution of Indian is clearly applies and hence subject to amendments, Period !!!
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Oct 17, 2015 10:43am
What is Pakistan's contribution in this.
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Oct 17, 2015 10:50am
An eye opener decision for all Indian, who claims J&K integral part of India.
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Oct 17, 2015 10:59am
Its the High Court...not Supreme court........but only in India can such sensitive cases go against the Govt :) kudos for democracy......
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Oct 17, 2015 11:02am
@Senthil but do you accept that kashmir is a dispute
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Oct 17, 2015 11:21am
@Senthil but do you accept that kashmir is a dispute@asad LATEEF
Nope, Kashmir holds a special status within the union of India( as reinforced by the High Court).....whats the dispute?
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Oct 17, 2015 11:36am
@Osman Din
Yes Osman, we must also ensure that AJK falls in same category.
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Oct 17, 2015 11:51am
@Zombie What about India? India is holding disputed land under force! Have you ever heard about freedom protest in AJK or GB? This is reality that India is on loss if it just leave J&K State.
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Oct 17, 2015 11:51am
@Valar Morgulis, forget about article 370 of the Indian constitution, please read carefully UN resolution on J&K. You will come to know, who need to vacate first.
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Oct 17, 2015 11:55am
The judgement is appealable in Supreme Court, which will give the final decision. Apart from the legalese. in practical terms, there is no plan or possibility of tempering with S 370. That's a fact though no government will like to surrender its rights even if it does not plan to exercise the
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Oct 17, 2015 12:01pm
Kasmiris have already decided they want to live in a develop & powerful india. Under article 370 no plebiscite is possible.No power on earth can challenge indias constitution & its democracy.
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Oct 17, 2015 12:18pm
@Osman Din Dreaming is the right of everybody.
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Oct 17, 2015 12:20pm
@chinto Indian SC give impartial verdicts, not in the case of Pakistan, which involves important stake holder such as army.
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Oct 17, 2015 12:28pm
I believe right to determination should be given for Kashmiris so let them an independent country. India could divert defence expenditure towards poverty and atleast the long standing issue will be solved.
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Oct 17, 2015 12:31pm
Article 360 is bad for Kashmir as it disallow investment. It's stopping development of Kashmir. It's sad that Kashmir politicians themselves don't want Kashmir to develop so they can rule them as per their wish.
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Oct 17, 2015 01:11pm
No plebiscite in kasmir is possible. Indian muslims & kasmiris are proud of their islamic heritage in india.
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Oct 17, 2015 01:25pm
Article 370 is a part of Indian constitution. Except the basic features of the constitution as interpreted by the honourable supreme court in upholding the spirit and intent as enshrined in the preamble, anything can be am ended via due process.
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Oct 17, 2015 01:57pm
India yet to show any trustworthy documents on the accession of Jammu and Kashmir by the last Maharaja in the UN.However, the court verdict validated permanency of the said article 370 of Indian constitution. The limit will not tilt the Kashmiris to the India. The ground situation opposite.The people of the occupied land since 1989 have been committed in an unique Intifada to achieve its long plebiscite promised by India at UN.Over 100000 unarmed Kashmiris sacrificed their lives for the freedom,thousands of women have been lost their chastity. The so called state elections largely disowned by the people.But court verdict has some how thwarted the BJP's current goal and saved the situation from further escalation and a moral boost for peace lovers for resuming dialogue between India and Pakistan.
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Oct 17, 2015 02:13pm
@Senthil Then this article has to go, we will liberate Kashmir and no article can prevent that, my periods
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Oct 17, 2015 02:18pm
According to UNSC resolution pakistan and india should vacat occupied land and accept kashmir as an independent land also end prolonged war which is base is disputed kashmir.
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Oct 17, 2015 02:30pm
@Valar Morgulis, if one does not want to read and wants to remain clouded, your argument holds good. Otherwise the judgement by Indian court restresses the fact that Kashmir is an integral part of India but as a special part. How difficult it is to read a simple judgment?
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Oct 17, 2015 02:55pm
Art 370 was put in place by the Indian Parliament. the Indian Parliament can revoke it.
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Oct 17, 2015 03:17pm
This is all an illegal invaders . The independent nation of kashmir want their freedom to join pakistan. Indian brutal occupation must end. End of story.
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Oct 17, 2015 04:05pm
This is how matured democracy works. One institution correct others.
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Oct 17, 2015 04:59pm
Article 370 was already there, they have just decided not to abolish it..
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Oct 17, 2015 05:13pm
Every body understand that It is "Indian constitution" and meant for the Benifit of Indians. In 2 years period many changes will happen in Constituion with parlament approval including repealing of Article 370.
What happens to Highcourt ruling...supreme court will stirike off. Matter close.
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Oct 17, 2015 05:27pm
kashmir should be independent..neither india nor pakistan
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Oct 17, 2015 05:58pm
Intelligent move bi Indian politicians. This was slogan of BJP in the election and now they have a work around through Kashmir high court so that they cannot be forced into this repealing process.
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Oct 17, 2015 06:07pm
@probono publico PM Modi is too busy with economic developmental work in India.
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Oct 17, 2015 06:16pm
J&K still enjoys special status inside Indian Union; no one has changed it. The verdict shows how independent and free are the judiciary in India and J&K. The special status can be removed only after an elected govt. in J&K opt for it.
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Oct 17, 2015 06:41pm
@sana-2 please read your complete statements well before entering!! A friendly suggestion.
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Oct 17, 2015 06:46pm
@Zak but how? without fighting a war because that would probably be a nuclear one
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Oct 17, 2015 06:49pm
Hope we all can understand English...
First, high court said, Kashmir holds a limited sovereignty, it didn't say Kashmir is another country like Bangladesh or Pakistan. It is part of India but with special status.. In India we had several states with such special status such as Himachal Pradesh, uttarakhand.. And now Andhra Pradesh is asking similar status.. It's no big deal
Second, the same order says federal govt is responsible for defense and communications... India can not and will not be responsible for any other country except for its own.. That has to be its own sovereign territory. Hence Kashmir it integral part of India
Last but not least, this order alone shows how democratic india is.. We have beaurocracy, judicial, military and political systems all independent of each other and no one can influence other... We respect our judicial system but high court is not supreme authority in India. It is Supreme Court
Kashmir is and will be in India FOREVER brothers
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Oct 17, 2015 07:09pm
Kashmir is NOT an integral part of India.
Let me remind India:
“The United Nations brokered a cease-fire ( between India and Pakistan ) in 1949, and a five-member commission made up of Argentina, Belgium, Columbia, Czechoslovakia and the United States drew up a resolution calling for a referendum to decide Kashmir's future.”
India agreed. That tells you that Kashmir is not an integral part of India.
India should fulfil its promise.
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Oct 17, 2015 07:10pm
@sana-2 try your luck....good luck
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Oct 17, 2015 07:18pm
constitutions are made by people and people can do anything with them - repeal them, abrogate them, revise them, modify them.
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Oct 17, 2015 07:29pm
@Bilal : Yeah, just abused and neglected--is freedom?
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Oct 17, 2015 07:36pm
@Valar Morgulis that doesn't mean it will happen. didn't you try this already?
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Oct 17, 2015 07:55pm
"Article 370... has assumed a place of permanence in the constitution"...key word being "assumed". So, article 370 is a permanent article of faith is just an assumption!
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Oct 17, 2015 09:30pm
@point of view
Well said.
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Oct 17, 2015 10:38pm
@Munir Special part separates it from being 'integral'. It has it's own sovereignty. I don't know why it's so hard for you to understand. Though I understand why there's an ignorance about it as seen from the assumptions you put.
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Oct 18, 2015 10:44am
this is truly independent judiciary
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