Jammu and Kashmir High Court has observed that the conversion of the post of 'Sadri Riyasat' into Governor in 1965 was against the state constitution but left it to the state Legislature to decide whether to continue with the existing constitutional arrangement or revert it.
"Section 26 of (state) Constitution provided that Head of the State (Sadri Riyasat) shall be elected in the manner, provided under Section 27. The Head of the State as provided under Section 27, of the Constitution, was to be elected by people of the state through their representatives in State Legislatures.
"The Constitution of Jammu & Kashmir (Sixth Amendment) Act 1965 amended the State Constitution and replaced 'Sadri Riyasat' by Governor.
"In terms of the amendment, Governor is appointed by the President and is to be Head of the State. The office of Head of the State in wake of amendment ceases to be elective," Justice Hasnain Masoodi said in an order passed last week.
The court, which was hearing a petition on hoisting of state flag on buildings and vehicles of constitutional authorities in Jammu and Kashmir, held that the sixth amendment did not merely change the nomenclature but the eligibility, mode and method of appointment of Head of the State.
"The elective status of Head of the State was an important attribute of Constitutional autonomy enjoyed by the State, a part of basic framework of the State Constitution and therefore not within the amending power of the State legislature'," the court said.
The court said that it is questionable whether Constitution of Jammu and Kashmir (sixth Amendment) Act, 1965, to the extent it amended Section 26 and 27 and all connected provisions of the Constitution, satisfies the basic structure doctrine and falls within the ambit of power under section 147 of the State Constitution.
"In absence of challenge to Jammu & Kashmir Constitution (sixth Amendment) Act 1965, it would be appropriate to leave it to State Legislature to consider the matter and take measures as required to uphold the Constitution," it said.
However, the court said the Legislature was equally under a constitutional obligation to uphold the Constitution and rectify an error, wherever necessary.
"A Jurist has said that 'to perpetuate an error is no heroism and to rectify it is compulsion of conscience'. Be that as it may 'Constitutional autonomy' of the State provided under Constitution of Jammu & Kashmir, is 'Basic Structure' of the Constitution and beyond amending power of State Legislature under section 147," it added.
(REOPENS LGD 6)
Referring to Article 370, Constitution of India, the Court said that neither it can be abrogated, repealed nor even amended under Clause (3) Article 370.
"...Also because Constituent Assembly is presumed to have taken informed decision, not to recommend modification or change in the Article and to allow it to remain in the same form even after Constitution of the State came into force on 26th January 1957.
"The expression 'temporary' or 'transitional' is used only to indicate that Constituent Assembly envisioned by Article 370 was to take a final decision as regards Constitutional relationship between the State and the Union.
"Two important aspects of the Constitutional autonomy i.E nature of 'consultation' and 'concurrence' contemplated under Article 370 and change in extent of autonomy, also need to be examined, in the present context," the court said.
It said Article 370 reflects solemn pledge made by people of country, through duly elected Constituent Assembly to people of Jammu and Kashmir, that the powers of the Union would be restricted to subjects mentioned in the Instrument of Accession and such constitutional provisions, as are extended by the President in 'consultation' with or 'concurrence' of Government of Jammu and Kashmir and that the State shall have autonomy as regards all other matters.
The court said the "Consultation" or "concurrence" cannot be that of the Governor when the State is placed under 'Governor s Rule' under Section 92, Constitution of Jammu and Kashmir, or Presidential rule under Article 356, Constitution of India.
"The President of India cannot have consultation with Governor or seek his 'concurrence' while extending Constitutional provision to the State or applying a law to the State, as the Governor having been appointed by President in terms of Section 27, Constitution of Jammu and Kashmir, it would not be consultation or concurrence, contemplated under Article 370 Constitution of India," it said.
On the petitioner's plea for a direction to the government for celebrating November 17 as the state's Republic Day, the court left to the state government to decide on the issue.
The decision to celebrate the day when Constitution was adopted is a matter that falls within domain of the State Government, the court said.
"It is for the Government to decide whether the day is to be celebrated or the manner in which it is to be celebrated. There is no provision under Constitution or law requiring the respondents to celebrate the event," the court said.