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Can BJP government abolish the article 370?
Article 370 of the Constitution, which was added as a temporary provision in the Constitution, is in news again after Dr. Jitendra Singh, Minister of State in the PMO, has given a statement that there should be a debate on the desirability of retaining the Article 370. As usual, J & K Chief Minister Omar Abdullah vehemently opposed any such move while saying he would “oppose tooth and nail” if any such move is made by the Modi-led BJP Government.

With the RSS also joining the issue, the matter has been further intensified. As the BJP has formed the Government with absolute majority and NDA has got around 2/3rd majority in Lok Sabha, there are clear chances that for the very first time, the issue of abolition of Article 370 will reach to its logical conclusion. Prime Minister Narendra Modi had already given the similar statement when he was addressing an election rally in the State while campaigning for the party.

Abolition of Article 370 was always on the agenda of RSS and BJP and the party has not mentioned the same in its election manifesto prominently only because it was not that sure of an absolute majority for BJP and near 2/3rd majority for NDA.

Before we further proceed in this matter, let us see what is written in Article 370 (3) of the Constitution :

“(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

Article 370(3), as we can see clearly says that the President, by public notification, can declare that this article shall cease to be operative provided that the recommendation of the Constituent Assembly of the State has been obtained before President issues such a notification.

It is very interesting to note that the Constituent Assembly referred to under the article has lapsed long time back in 1957 itself and does not exist any more. This would clearly mean that the President can issue the notification stating that the temporary provision of Article 370 of the Constitution ceased to be operative without obtaining the recommendation of the State Constituent Assembly.

There is a general perception that the Government at the Centre requires 2/3rd majority in both the houses of the Parliament in order to abolish the Article 370 as provided in Article 368. However, the provisions of both Article 368 and Article 370 are independent of each other and the requirement of 2/3rd majority under Article 368 is only warranted when the President is unable to abolish the Article 370 under the provisions of Article 370 (3) itself. If the President can issue a valid notification making the Article 370 inoperative under the provisions of Article 370 (3), then the question of applicability of Article 368 which mandates 2/3rd majority in both the houses of Parliament does not arise at all.

We can also conclude that there was clearly lack of determination and will power on the part of the Government at the Centre, which is responsible that this temporary provision of Article 370, which should have been abolished decades back, is still appearing in the Constitution Book. If the Government at the Centre had the will to abolish the Article 370, it was possible even without the 2/3rd majority in both the houses of Parliament.

We can further prove this point by reminding that the Rajiv Gandhi Government was having required majority in both the houses of Parliament and it took no steps to abolish the same for reasons best known to the Congress Party and its Government.

With the legal provisions very clear in this regard, nothing stops President from issuing a notification abolishing the Article 370. General perception being created in the media that 2/3rd majority is required in both the houses of the Parliament is not correct.

Editorial NOTE: This article is categorized under Opinion Section. The views expressed in this article are solely those of the author and do not necessarily represent the views of In case you have a opposing view, please click here to share the same in the comments section.
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At the time of accession to the Dominion of India, the States had acceded only on three subjects (Defence, Foreign Affairs and Communications). Later, revised Instruments of Accession were signed by which all States acceded in respect of all matters included in Union and Concurrent Lists, except only those relating to taxation. The process of integration culminated in the Constitution (7th Amendment) Act, 1956, which abolished Part B States as a class and included all the States in Part A and B in one list. However, J&K was a State which was given a separate treatment based on the Instrument of Accession which its then Maharaja Hari Singh had signed and which was accepted by the then Governor General of India. I take it that other States had also signed similar Instruments of Accession but they later on signed the revised Instruments of Accession. However, a blunder was committed by not asking the Maharaja/Regent of the State of J&K to sign the revised Instrument of Accession. On the basis of the Instrument of Accession, Article 370 of the Constitution of India was inserted in the Constitution of India giving Temporary provisions with respect of the State of Jammu and Kashmir. It is stated that the article was a byproduct of Kashmir accession to India after independence, and was designed to ensure that Kashmiri aspirations were well served by the government of India, and critically, that Kashmiris would have a vital say in the manner their state was governed. In its broadest contours, the article gave the central government primacy in defense, foreign affairs, and communication, while the state government assumed greater control over other laws (including those of property, citizenship, and fundamental rights) and the daily lives of its citizenry. The article was conceived under what may be termed as extraordinary circumstances, when the threat of Kashmir slipping from India then tenuous grip was a distinct possibility, and was certainly politically expedient it was thus originally conceived as an interim measure but like many other temporary features in the Indian constitution, it has now assumed a permanent air and we currently talk about it mostly as a vexing issue that nobody is ever likely to do anything about. In fact, when revised Instrument of Accession was signed by other States, Nehru forgot to ask the Maharaja/Regent of J&K to sign a revised Instrument of Accession with India. Was this blunder deliberate? My inkling is that it was a "deliberate" blunder. There are at present two views regarding the Article 370 of the Constitution. Its supporters see the article as a vital cog in the preservation of the Indian union, an instrument that honors a promise that the government of India made to the people of Kashmir at the time of accession, a vehicle to assure citizens of India only Muslim-majority state about India secular credentials, and as a mechanism to safeguard Kashmir culture (or Kashmiriyat, as it is often described). The article supporters see in Kashmir unique personal and property laws an expression of the will of the people of Kashmir and reckon Kashmir interests are best left to the people of Kashmir themselves (especially if it helps maintain the integrity of the Indian union). The opponents of the article however see it as fundamentally flawed to them Article 370 is a tool of appeasement, one that gives special leeway to Muslims even though they are a majority in the state(at the cost of the real minorities in the state the Pandits, the Laddakhis, etc.), they view it as a discriminatory tool that provides preferential treatment to one state over all others in the country on account of historical blunders made after the Kashmir raids of 1948, and they decry it as another hole in the pseudo-secular fabric of India which owes its continued existence to the twisted logic of electoral politics rather than to national interest. In fact, a separate Constitution of J&K was enacted by the State Legislature which came into effect on 26th Jan, 1957. In view of the fact that the Constitution of India declares it to be a Union of States and not a fedration of States like USA, one of its States cannot have a separate Constitution. In fact, either all of its States should have separate Constitutions in which case, it should be declared a fedration through amendment of its Constitution so that no State is discriminated against or the Article 370 of the Constitution of India and the Constitution of J&K should be declared null and void being ultra vires of the Constitution of India and hence anti-national.
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