Skip to main content

Need to abolish Article 370 of the Constitution

Need to abolish Article 370 of the Constitution

Jammu and Kashmir is a constituent State in the northernmost part of the Union of India, but unlike other States, it entails a different kind of Constitutional relationship with the Central Government. Amongst the two characteristic features that it possesses, firstly Jammu and Kashmir enjoys greater amount of power in relation to other states of the Union, and secondly the Adjudication power of the Centre is very much restricted when it comes to this state.[i] Due to many of such distinguishing features, many of the laws passed by the Legislature are not necessarily followed and accepted by this state. Therefore, due to many complications at the time of the formation of the state, Article 370 in the Constitution of India makes temporary provisions with respect to the State. As a result, an amendment made in the Central law is not directly applicable to the State of Jammu and Kashmir. The law may apply only on the confirmation with the State Government and the issuance of an order by the President under Article 370.

The Constitution of Jammu and Kashmir was promulgated by the President of India in consonance with the Government of the State. The Constitution was then replaced by the Order of 1954, which is modified time and again according to the need of the State and regulates the constitutional provision of the State. This Constitution was drafted by its own assembly and is very closely related with the Constitution of India. The whole issue pertains to the temporary nature of Article 370. Basically, Article 370 (3) says that the President by Public notification may declare that Article 370 shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify. [ii] But, very importantly, before the President may issue any such notification in the State, the recommendation of the “Constituent Assembly” shall be necessary. Most importantly, as no such Constituent Assembly exists today, it straightaway becomes an impossible task for the President to operate in the State through Article 370. Further, if at all need arises for an amendment, then taking Article 368 into consideration, the modifications can be made. The point arises again when there is an involvement of the State Government under then ambit of Article 370 (1) of the Constitution. Article 370 is perhaps one of the most disputed Articles in the history of the Constitution. The Parliament has the power to amend the Constitution to change this provision. However, this Constitutional Amendment shall be subject to a judicial review and shall be required to confirm to the theory of basic structure of the Constitution[iii] as it would affect the relationship between the Centre and the State.

Three important components of Article 370 are, “in conclusion with the Government of the State”, “with the occurrence of the Government of the State” and “the recommendation of the Constituent Assembly of the State shall be necessary”.[iv] The state of Jammu and Kashmir was permitted to have its own flag[v], its own `Constitution and its own anthem [vi] The Union Government cannot apply even the Indian Penal Code, 1860 to the State of J & K although the State Constitution declares itself to be integral part of the Nation. Moreover the power given to the State Legislature under Article 3 of the Constitution of India is in contravention to the J&K Constitution, wherein it talks about to increase or decrease the area of any state or changing the name of any state. It faces a direct setback as this feature also needs the assent of the State legislature. In a similar manner the people of J&Kare not eligible to vote but can contest in Lok Sabha Elections. So when are even not allowed to vote in their own state, then how is the Right to Vote a fundamental right under Part III of the Constitution of India. In Puranlal Lakhanpal v Union of India, it was held that “In the context of the Constitution we must give the widest effect to the meaning of the word modification used in Article 370 (1) of the Constitution and in that sense it includes amendment.”[vii] It also needs to be noted here that the significant DPSP (Directive Principles of State Policy) enshrined in Part IV A of the Constitution are not applicable to the State.

Concludingly, it is not that the Government of India would not provide amenities to the State if the State gest imbibed in the Union, rather according to a report of Arun Shourie, the per capita assistance given to the State of Kashmir at present is 14 times that of Bihar, 11 times that of Tamil Nadu and 6 times that of a beleaguered state like Assam.[viii] But on the other hand if its seen, then it is found that due to the dirty politics played around in the State since its birth, there have not been many significant developments in the state, whether economically or politically. Furthermore, the Supreme Court of India has also bene defending the status of Jammu and Kashmir through these years, as in 2014 the Apex Court dismissed a petition before Justice R M Lodha, Justice Rohinton Nariman and Justice P C Ghose who had then argued that the article was a temporary provision under the Constitution. At present , there is only one way to repeal the Article, i.e. Clause 3 of 370. But on the grounds that the Constituent Assembly of the J&K is willing to recommend the same. However, this would be subject to Judicial Review and shall be required to confirm to the theory of basic structure. Also pertaining to issues like increase in terrorist activities across the state as well as deaths caused during widespread protest (for example stone pelting instances after the enactment of AFSPA long back) , there is a need to look into the merits and demerits of Article 370 and precautionary measures be taken at the earliest.

[i] M.P. Jain, Indian Constitutional Law, 2016 Edition.
[ii] Article 370 (3), The Constitution of India, 1950.
[iii] Kesavanand Bharti v State of Kerala, AIR 1973 SC 1461.
[iv] Prof. Dr. Pradeep Kulshreshtha, Article 370, Constitutional obligation and Compulsion, IJEELH, January 2016.
[v] Called as ‘Quami Tarana’, The Daily Excelsior, June 24, 2002.
[vi] Jammu Kashmir the conflict of Article 370,
[vii] Puranlal Lakhanpal v Union of India`, AIR 1961 SC 1519.
[viii] Arun Shourie, The Times of India, Mumbai.

Popular posts from this blog

Art of Cross Examination used by: Sr. Adv. Ram Jethmalani, Supreme court

“The issue of a cause rarely depends upon a speech and is but seldom even affected by it. But there is never a cause contested, the result of which is not mainly dependent upon the skill with which the advocate conducts his cross examination.”- Francis L. Wellman

When asked, the undisputed champion of cross-examination, Mr. Ram Jethmalanidescribed the art of cross-examination as the most effective weapon for the discovery of truth, provided the objective is not to confound a truthful witness but to extract truth from an unwilling witness.
The search for truth is the ultimate and idealistic end of all litigated matter in a court trial, and that truth is obtained due to the process of cross examination in the conduct of litigation.

Mr. Jethmalani understands that in India where large number of complaints and cases are filed in civil and criminal courts every day, delay in justice is common due to the rapidly growing pendency of cases in courts. Examination of witnesses plays an important …

Adv Ram Jethmalani :The Legend of the Bar; Started practicing at 17, still strong at 93.

Ram Jethmalani a True Legend in Providing legal services in India was born on 14th September, 1923 in state of Sindh in Pakistan. His Career in India is as a Lawyer and a Politician.

Virtuoso, flashy and argumentative is a portion of the words that can be usually used to portray Ram Jethmalani's life and career. Be that as it may, being a prestigious government official and legal counselor, additionally accompanies being included in numerous debates. In Year 1971, when he stepped into politics Mr. Jethmalani played an important role in campaigning against the ruling party, during the National Emergency period. Since then he has remained as the most popular figure in politics. Ram Jethmalani has been an important member of the Supreme Court Bar Association and Indian Bar Council for several years. At the age of 93, he is still an active political and Famous lawyer in India.

Early Life
Ram Jethmalani was born on the 14th September 1923 out of a residential community called Shikharpur,…

Harish Salve: India's eminent commercial lawyer

“Harish Salve”, the name is enough to define his stature in the field of independent practise in India. People view him as the one who could win the impossible for any client he took on. Mr. Salve was born at Warud in Maharashtra. His father, N.K.P. Salve was a renowned chartered accountant and founder of the Salve & Co. (chartered accountancy firm). His grandfather was a criminal lawyer. So, the law background in the family was already there to assist him through. As a young boy, Mr. Harish wanted to be an engineer but by the time he developed an interest in Chartered Accountancy. He started preparing for the exam. His father used to work with Nani Palkhivala, one day his father requested him to prepare a note on some complicated point in relation to the new provisions establishing the Settlement Commission which was related to some case, Mr Salve prepared the note and his father was that much impressed that he showed it to Nani Palkhivala, who after going through the note asked …