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Abrogation of Article 370 – A Myth or Reality

Written by: Kapil Raina - Final Year Law Student, D.E.S. Law College, Pune University, Pune
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Article-370, as we all know, accords “Special Status to the State of Jammu and Kashmir”. This very attempt to adduce a conclusive meaning of Article-370 is itself erroneous as it is not the special status that has been accorded to the State of J&K but the “Constitutional Position”. The Constitution of India administered the accession of a State and the State of J&K had been conferred a position by that Constitution. By its accession to the Dominion of India, it was given a different constitutional position. It was never at par with any of the other States from the very beginning, so how can it be taken as a “Special Status”.

Furthermore, it can not be justified by any means that limited power of the Union Legislature to legislate for the State, inability of the Union of India to declare financial emergency with respect to the State, inapplicability of Fundamental Duties & Directive Principles and restriction on the power of the High Court of J&K to issue writs to enforce fundamental rights only (to name a few), comes within the purview of the term “Special Status”. The last word on the issue would be the existence of the fact that the State of J&K holds a “Different Status” as regards other States, which is by no stretch of imagination even similar to mean “Special Status”.

What is Article-370

Article-370 was created with a view that its existence would be temporary. The Ruler of Jammu and Kashmir signed the instrument of accession whereby only three subjects were surrendered i.e. External affairs, Defense and Communications, by the State to the Dominion of India. The relationship between the State of J&K and the Union of India is exceptional. The State enjoys a greater measure of autonomy and the power of the Union of India is restricted, as regards other States. The Union of India is incompetent to declare financial emergency and emergency in case of failing of constitutional machinery with respect to the State of J&K. Only emergency due to War or External Aggression can be declared as it is within the scope of “Defense” as surrendered to the Union of India.

The Union Legislature can not legislate on the matters provided in the Union list and Concurrent list which are not in accordance with the subjects provided in the instrument of accession. The consultation of the State Government is required in any matter that affects the State. It can be said that the Union of India has the power to act on an issue independently only if it is somehow related to the three subjects surrendered or those expressly mentioned in the instrument of accession.

Abrogation of Article-370 – For and Against
It’s a debatable question whether Article-370 should be abrogated or not. Arguments in favor of and against, on the issue of abrogation, are perfectly balanced. Arguments stating that it was a temporary provision and was subsequently required to be done away with in a few years, favored its abrogation. If Article-370 is abrogated, a demand for plebiscite would be more lethal, as it would have been right to hold a referendum within 5 years from the date of accession and not after 60 years. This counter view is in favor of those against abrogation. Although there are innumerable views and counter views to this effect, the most significant have been stated above."

Whether Abrogation can be effected or not?
Article-370 can be abrogated by an amendment to the Constitution of India as contemplated by Article-368, the only requirement being the non-destructive nature of the amendment as regards “Basic Structure of the Constitution”. But the question is not how abrogation can be effected, it’s whether abrogation can be effected or not. The answer is not in the affirmative. Although, the President of India had been conferred with the power to suspend or modify Article-370 by issuing a notification, but for that purpose the recommendation of the constituent assembly of J&K “shall be necessary”. Since the constituent assembly no longer exists, there is no question of existence of such power.

As far as Article-368 is concerned, it is required that the amendment be extended by a Presidential order under Article-370(1) which again involves “concurrence of” or “consultation with” the State Government.

The above referred analysis leads to the inference that its still not clarified that the amendment so extended would be effective or not. The absolute power as regards relationship between Article-370, Union of India and State affairs rests with the State Government. And in case of a disagreement between the State Government and Union of India on the issue of abrogation, which is indispensable, the outcome would be the endless existence of Article-370.

The need of the hour is to devise a logistic interpretation of the relevant clauses to the article, keeping in mind the intention of the framers of the constitution. By creating a provision for amendment, its framers never intended to bestow the operation of Constitution with absolute rigidity but to provide for a bit of flexibility to keep pace with the ever changing needs of the society and to serve the ends of justice. Amendment of Article-370, as per the present circumstances is a myth as of now but this situation can be easily dealt with using logistic approach and can be very diplomatically modified to a reality.

Books Referred
H. M. Seervai, “Constitutional Law of India”
D. D. Basu, “Shorter Constitution of India”
M. P. Jain, “Indian Constitutional Law”
P. M. Bakshi, Bare Act, Constitution of India
Oxford Dictionary of Law
Mitra’s Legal and Commercial Dictionary

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