Why it is not easy & wise to remove #Article370 ? Part-1
On 3rd April, 2018 the Supreme Court stated that Article 370 had acquired permanent status through years of existence, making its abrogation impossible.
The observation came from a bench of Justices Adarsh K Goel and R F Nariman on a petition by Kumari Vijayalakshmi Jha
who sought a declaration that Article 370 was a temporary provision that lapsed with the dissolution of the J&K Constituent Assembly on January 26, 1957. She had also sought a declaration that the constitution of J&K was void, inoperative and in breach of the Constitution.
Justice Nariman had drawn additional solicitor general Tushar Mehta's attention to the SC's 2017 judgment in State Bank of India vs Santosh Gupta case and stated that the controversy over Article 370 was settled by the court ruling the provision had acquired permanent space in the Constitution and it could no longer be abrogated.
The SC has already stated since the Constituent Assembly of the state ceased to exist, the President would not be able to fulfil the mandatory provision of getting its recommendation for its abrogation.
ARTICLE 370 : What is it?
This article specifies that except for Defence, Foreign Affairs, Communications and ancilliary matters (matters specified in the instrument of accession) the Indian Parliament needs the State Government's concurrence for applying all other laws. Thus the state's residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.
Similar protections for unique status exist in tribal areas of India including those in Himachal Pradesh, Arunachal Pradesh, Andaman & Nicobar Islands and Nagaland. However, it is only for the state of Jammu and Kashmir that the accession of the state to India is still a matter of dispute between India and Pakistan still on the agenda of the UN Security Council and where the Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the Union and Jammu and Kashmir State within the ambit of this article
Why was article 370 include in the Constitution ?
"First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker, Maulana Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: "Why this discrimination please?" The answer was given by Nehru's confidant; the wise but misunderstood Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the principal drafter of Article 370). Ayyangar argued that for a variety of reasons Kashmir, unlike other princely states, was not yet ripe for integration. India had been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still "unusual and abnormal." Part of the State's territory was in the hands of "rebels and enemies."
In fact today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction. The only substantial differences from many other States relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of "internal disturbance" without the concurrence of the State; and the name and boundaries of the State, which cannot be altered without the consent of its legislature. Remember J&K is not unique; there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I.
Fourth, can Article 370 be revoked unilaterally? Clause 3 of Article 370 is clear. The President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. Of course, Parliament has the power to amend the Constitution to change this provision. But this could be subject to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot, therefore, be amended".
Constitutional experts & legal experts are of the view that abrogating the provision would put the accession of the state to India in jeopardy.
Because the nature of the accession of J&K into the Union of India is totally different from the merger of all other small and big states.
More over there is a debate over whether Article 370 is a part of basic structure of the Constitution and whether it can be amended.
According to Constitutional experts , the Article 370 can't be abrogated because the government do away with it, the very basis of accession will be in jeopardy. Though the accession of J&K to India is permanent
As per former Jammu and Kashmir high court chief justice BA Khan, "If Article 370 was abrogated, then technically and legally the foundation of Jammu and Kashmir's accession to India would cease to exist."
Inder Article 368 of the Constitution, the Parliament has the power to amend the Constitution. But in view of the Supreme Court's ruling in the Kesavananda Bharati case, Parliament can't amend the basic structure of the Constitution. In other words the go ahead /permission of Supreme Court would need to be taken for starting the process for abrogation of Article 370.
In conclusion , removal of article 370 is near to impossible .It is an extremely complex issue . The very thought & idea of removal of article 370 , is divorced from the legal & constitutional issues & the history of how J&K , a princely state joined the Union of India .
Sources :
DP Satish - article (2014);
D.Mahapatra : News report of 4th April, 2018 titled "Article 370 has acquired permanent status : Supreme Court;
Indian Summer: The Secret History of the End of an Empire :- Alex von Tunzelmann India after Independence: Bipan Chandra, Aditya Mukherjee, Mridula Mukherje;
Partition: The Story of Indian Independence and the Creation of Pakistan in 1947 :Barney White-Spunner (d)Indo-Pakistani Conflict of 1947-48- globalsecurity.org ;
The Story of Integration of Indian States (1956) & Transfer of Power in India (1957) - VP Menon
The observation came from a bench of Justices Adarsh K Goel and R F Nariman on a petition by Kumari Vijayalakshmi Jha
who sought a declaration that Article 370 was a temporary provision that lapsed with the dissolution of the J&K Constituent Assembly on January 26, 1957. She had also sought a declaration that the constitution of J&K was void, inoperative and in breach of the Constitution.
Justice Nariman had drawn additional solicitor general Tushar Mehta's attention to the SC's 2017 judgment in State Bank of India vs Santosh Gupta case and stated that the controversy over Article 370 was settled by the court ruling the provision had acquired permanent space in the Constitution and it could no longer be abrogated.
The SC has already stated since the Constituent Assembly of the state ceased to exist, the President would not be able to fulfil the mandatory provision of getting its recommendation for its abrogation.
ARTICLE 370 : What is it?
This article specifies that except for Defence, Foreign Affairs, Communications and ancilliary matters (matters specified in the instrument of accession) the Indian Parliament needs the State Government's concurrence for applying all other laws. Thus the state's residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.
Similar protections for unique status exist in tribal areas of India including those in Himachal Pradesh, Arunachal Pradesh, Andaman & Nicobar Islands and Nagaland. However, it is only for the state of Jammu and Kashmir that the accession of the state to India is still a matter of dispute between India and Pakistan still on the agenda of the UN Security Council and where the Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the Union and Jammu and Kashmir State within the ambit of this article
Why was article 370 include in the Constitution ?
"First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker, Maulana Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: "Why this discrimination please?" The answer was given by Nehru's confidant; the wise but misunderstood Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the principal drafter of Article 370). Ayyangar argued that for a variety of reasons Kashmir, unlike other princely states, was not yet ripe for integration. India had been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still "unusual and abnormal." Part of the State's territory was in the hands of "rebels and enemies."
In fact today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction. The only substantial differences from many other States relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of "internal disturbance" without the concurrence of the State; and the name and boundaries of the State, which cannot be altered without the consent of its legislature. Remember J&K is not unique; there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I.
Fourth, can Article 370 be revoked unilaterally? Clause 3 of Article 370 is clear. The President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. Of course, Parliament has the power to amend the Constitution to change this provision. But this could be subject to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot, therefore, be amended".
Constitutional experts & legal experts are of the view that abrogating the provision would put the accession of the state to India in jeopardy.
Because the nature of the accession of J&K into the Union of India is totally different from the merger of all other small and big states.
More over there is a debate over whether Article 370 is a part of basic structure of the Constitution and whether it can be amended.
According to Constitutional experts , the Article 370 can't be abrogated because the government do away with it, the very basis of accession will be in jeopardy. Though the accession of J&K to India is permanent
As per former Jammu and Kashmir high court chief justice BA Khan, "If Article 370 was abrogated, then technically and legally the foundation of Jammu and Kashmir's accession to India would cease to exist."
Inder Article 368 of the Constitution, the Parliament has the power to amend the Constitution. But in view of the Supreme Court's ruling in the Kesavananda Bharati case, Parliament can't amend the basic structure of the Constitution. In other words the go ahead /permission of Supreme Court would need to be taken for starting the process for abrogation of Article 370.
In conclusion , removal of article 370 is near to impossible .It is an extremely complex issue . The very thought & idea of removal of article 370 , is divorced from the legal & constitutional issues & the history of how J&K , a princely state joined the Union of India .
Sources :
DP Satish - article (2014);
D.Mahapatra : News report of 4th April, 2018 titled "Article 370 has acquired permanent status : Supreme Court;
Indian Summer: The Secret History of the End of an Empire :- Alex von Tunzelmann India after Independence: Bipan Chandra, Aditya Mukherjee, Mridula Mukherje;
Partition: The Story of Indian Independence and the Creation of Pakistan in 1947 :Barney White-Spunner (d)Indo-Pakistani Conflict of 1947-48- globalsecurity.org ;
The Story of Integration of Indian States (1956) & Transfer of Power in India (1957) - VP Menon
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