Saturday, 22 July 2017

Abhishek Naharia 007

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.

Conclusion:
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.

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[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, lawmantra.co.in
[vii] Puranlal Lakhanpal v Union of India`, AIR 1961 SC 1519.
[viii] Arun Shourie, The Times of India, Mumbai.