Misplaced Judicial Activism Adding To Chaos In J&K?

06 Feb 2016 16:33:51

The diametrically opposed positions that were taken by two benches of the same High Court was seen more as a “sharp divide” within judiciary rather than a matter of a bonafide controversy. 

By Rajeev K. Panday

Of late, the High Court of Jammu & Kashmir is inviting attention of national media for wrong reasons.

First came the conflicting judgments of Jammu Bench and Kashmir Bench over the issue of Beef Ban in J & K under Ranbir Penal Code. After indulgence of Hon’ble Supreme Court of India, the full bench of Jammu & Kashmir High Court put the ball into the Court of legislature whereby the entire controversy was skirted. However the diametrically opposed positions that were taken by two benches of the same High Court was seen more as a “sharp divide” within judiciary rather than a matter of a bonafide controversy. 

In July 2015, the striking down of the SARFAESI Act by the J & K High Court on the ground of the same being in violation of Article 370 came as a shock to banking industry. Considering the crucial importance of this legislation for the health of banking industry, there was no option for the banks but to carry the matter to Supreme Court of India. The matter is now pending in Supreme Court. 

Recently in the case of Ashok Kumar & Ors. the High Court of Jammu & Kashmir once again deviated from the subject matter of the case and made certain pointed observations about “permanence” of Article 370 of Constitution of India which were completely irrelevant to the subject matter of the case under consideration namely reservations for SCs/STs.

It is strange when High Court of a State is seen to be obsessed with the mistaken notion about invincibility of Article 370 while dealing with matters that do not necessarily revolve around Article 370.   In past, the separatists had been taking a pointed position on Article 370 and the separate Constitution for the State of J&K.  Now if a High Court is seen as an over-enthusiastic guardian of Article 370, it would send wrong signals to the people of India who have all along been told that India has a “unified” judiciary without a federal structure wherein judges of High Courts are inter-changeable and High Court of J&K is no exception to this.

The admitted position on Article 370 is as follows:


  •  Article 370 of the Constitution of India does not create absolute restriction on Parliament’s legislative powers on subjects of defense, foreign policy & telecommunications  but merely requires a Presidential Order to be  issued in consultation with State Government for enacting a law.  For other subjects in Union list and Concurrent list, the applicability of a law enacted by Parliament to J & K would be subject to consent of J&K State.
  • Article 368 of the Constitution of India gives power to Parliament to amend the Constitution and lays down procedure for making such amendment.
  •  By the Presidential Order {The Constitution (Application to Jammu & Kashmir) Order, 1954), a proviso was added to Article 368 and due to this proviso, any amendment to the Constitution shall be applicable to the State of Jammu & Kashmir when the President issues an order under Clause (1) of Article 370.  In other words, any amendment to the Constitution of India shall be applicable to the State of Jammu & Kashmir when there is a Presidential order to effect such application.

Incorrect interpretation of Article 370 by J & K High Court:

In the title to Part XXI of the Constitution of India, an amendment was carried out in 1962 whereby a word “Special” was added and the title thereafter reads as “Temporary, Transitional and Special Provisions”. The fact that the word “Special’ was added and the word “Temporary” was retained shows that as in 1962, the Parliament – while amending the Constitution- continued to hold that Article 370 is temporary.

The High Court of Jammu & Kashmir seems to have entered into a misplaced judicial activism whereby repeated expression of commitment  towards the so-called permanent feature of the Constitution of India (which in fact is not so) has become a pattern for the High Court.

The assertion that Article 370 reached finality on account of non-existence of “Constituent Assembly for Jammu & Kashmir” is erroneous and is contrary to the view time and again expressed during parliamentary debates.  It is pertinent to note that even while making amendment to Part XXI of Constitution of India, the portion relating to powers of President to issue notification for revoking Article 370 were not deleted. Therefore Article 370 is indeed a temporary measure and there is necessity to revoke the said Article in view of changed circumstances and to protect the interests of the Indian nation and society.

In recent days, the debate on Article 35A and Article 370 of the Constitution of India has created doubts over the very constitutionality of Article 35A which provides teeth to Article 370 and which in fact creates an obstacle to exercise of the power of people of J & K to continue or throw away Article 370.

Scholars hold a view that the manner in which Article 35A was incorporated into the Constitution was unconstitutional. The said Article was added through a Presidential Order and not by way of a Bill passed by Parliament in accordance with the procedure laid down for amending the Constitution of India. Till the issue of constitutionality of Article 35A is finally decided, the High Court of J&K should have kept its hands off the controversy over Article 370. It is ridiculous that in issues such as SARFASI Act, SC/ST reservations in promotions or Beef Ban which have nothing to do with the logic behind either Article 370 or Article 35A, the judiciary is importing unnecessary controversy thereby creating a misleading impression not only in the minds of people of J&K but people of the whole country.  Such attitude and approach of judiciary is regrettable and regressive.


The author is  Advocate, Supreme Court of India, and Member of National Legal Team –Jammu Kashmir Study Center

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