For the first time, the SCI has agreed to examine the inviolability attached to Article 370 of the Constitution which confers special status on Jammu and Kashmir in comparison to other states.
A bench of Justices S A Bobde and Ashok Bhishan agreed to take up this issue for scrutiny nearly a year after entertaining an appeal challenging a J&K High Court judgment striking down reservation in promotion to SC/ST employees of the state government.
In the same judgment, the HC had termed Article 370 as inviolable by ruling that even Parliament had no power to amend the provision. This was questioned in a fresh application filed by the petitioner's counsel. The bench agreed to make the Union government a party to the proceedings and asked the petitioner to provide attorney general Mukul Rohatgi with a copy of the plea.
Senior advocate A Mariarputham said those who challenged reservation in promotion for SCs/STs in writ petitions filed in the HC had not raised the issue of inviolability of Article 370. Yet, the HC took the view that "Article 370, even though shown as a temporary provision, is a permanent provision in the Constitution and no changes in Article 370 can be made by the President of India, and more importantly, the HC has held that even Parliament cannot make changes in Article 370"
The HC had held, "Resultantly, Article 370, notwithstanding its title showing it as a 'temporary provision', 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 It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available. Furthermore, Article 368 (the amending power of Parliament) cannot be pressed into service in this regard, inasmuch as it does not control Article 370 - a self contained provision of the Constitution.
The petitioners challenged the HC's views and said Parliament's power was curtailed only with regard to basic structure provisions of the Constitution as per the SC's landmark Kesavananda Bharti case. "Article 370 is not a part of the basic structure of the Constitution of India and, as such, is not outside the amending power of Parliament under Article 368."
A bench of Justices S A Bobde and Ashok Bhishan agreed to take up this issue for scrutiny nearly a year after entertaining an appeal challenging a J&K High Court judgment striking down reservation in promotion to SC/ST employees of the state government.
In the same judgment, the HC had termed Article 370 as inviolable by ruling that even Parliament had no power to amend the provision. This was questioned in a fresh application filed by the petitioner's counsel. The bench agreed to make the Union government a party to the proceedings and asked the petitioner to provide attorney general Mukul Rohatgi with a copy of the plea.
Senior advocate A Mariarputham said those who challenged reservation in promotion for SCs/STs in writ petitions filed in the HC had not raised the issue of inviolability of Article 370. Yet, the HC took the view that "Article 370, even though shown as a temporary provision, is a permanent provision in the Constitution and no changes in Article 370 can be made by the President of India, and more importantly, the HC has held that even Parliament cannot make changes in Article 370"
The HC had held, "Resultantly, Article 370, notwithstanding its title showing it as a 'temporary provision', 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. Furthermore, Article 368 (the amending power of Parliament) cannot be pressed into service in this regard, inasmuch as it does not control Article 370 - a self contained provision of the Constitution.
The petitioners challenged the HC's views and said Parliament's power was curtailed only with regard to basic structure provisions of the Constitution as per the SC's landmark Kesavananda Bharti case. "Article 370 is not a part of the basic structure of the Constitution of India and, as such, is not outside the amending power of Parliament under Article 368."
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