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.
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