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Debating Article 370- The complications & importance of J&K's Constitution!
Continuing the debate on abrogation of article 370 let’s now discuss some complications. Some anti-abrogation advocates arguing (lots of articles in ‘Greater Kashmir’ web magazine) that the title of the article that ‘Temporary provision with respect to state of Jammu and Kashmir’ is misinterpreted by pro-abrogation advocators. They are saying that Article 370 is key to its relation with India and if it’s abrogated then there would be no relation with India.

Further they argue that the Article 370 is not temporary rather the relation of J&K with India is temporary. There is option of plebiscite as per UN trail. They are also not ready to accept the constituent assembly scripting the Constitution because part of undivided Jammu and Kashmir is not represented because those were occupied by Pakistan. 

Thus they still demand that after unification of Jammu and Kashmir, there would be a proper constituent assembly which can take a call on its future and relation with India. Thus abrogating Article 370 would detach it’s relation with J&K and free to take any call.

Pro-abrogation advocates rely on the interpretation that Article 370 is a temporary provision. As the constituent assembly has done its work in giving the state a constitution, hence it does not exist any more. Thus President can repeal this article as per recommendations of union cabinet. Two more points also go in their favor. The Constitution of J and K at its beginning reads as follows,

THE CONSTITUTION

OF

JAMMU AND KASHMIR

Preamble:- WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR, having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves-

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and' worship;

EQUALITY of status and of opportunity; and to promote among us all ;

FRATERNITY assuring the dignity of the individual and the unity of the

Nation;

IN OUR CONSTITUENT ASSEMBLY this seventeenth day of November, 1956, do HEREBY ADOPT, ENACT AND GIVE

TO OURSELVES THIS CONSTITUTION

(Source- http://www.jklaw.nic.in/Costitution_of_JandK.pdf)

The above proves that the relation with India as an integral part of India. Thus this supersedes the provision of temporarily agreed on 26th October 1947 in instrument of accession. Further the J and K constitution also says on relation with the Union of India in the form of Oath in Fifth schedule.

Fifth Schedule

(See sections 40, 64 and 97)

FORMS OF OATHS OR AFFIRMATIONS

Oath for a Minister:

Swear in the name of God "I, XYZ, do that I will bear true solemnly affirm faith and allegiance to the Constitution of the State as by law established, l[that I will uphold the sovereignty and integrity of India], that I will faithfully and conscientiously discharge the duty upon which I am about to enter, and that I will do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will. swear in the name of God

I further do that I will not solemnly affirm directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the State except as may be required for the due discharge of my duties as such Minister".

(Source- http://www.jklaw.nic.in/Costitution_of_JandK.pdf )

The entire Constitution has no mention of Article 370. Rather (through various amendments) all Constitutional authorities like Governor, Supreme Court, High Court, UPSC, Election Commission of India etc applied to J&K state. Thus as per J&K constitution, there is no problem of abrogating the article.

But there is a complication too! If J&K's Constitution is relied upon abrogation of Article 370, will it not makes J&K constitution too irrelevant! As its Article 370 which allows J&K to have its Constitution. Thus if there is no Article 370, there would be no constitution of J&K! This logic has a merit! Further the J&K's Constitution clearly says in its definition:

2. Definitions:-(1) In this Constitution, unless the context

otherwise requires-

(a) "Constitution of India" means the Constitution of

India as applicable in relation to this State;

If Article 370 is abrogated, which article would deal with state of Jammu and Kashmir?

One option would be providing J&K the special status through Article 371. Article 371 deals with special privilege (permanent in nature) with different states starting from Gujarat to North eastern states. That means abrogation of Article 370 has to be done along with amendment in Article 371 to provide special privilege to J&K. This would be easier as on negotiation table majority of stake holders would agree as the constitution along with the present rights of J&K people are not taken away.

Many would say, the special privilege to J&K is the bone of the contention, if that privilege remained intact, what’s the benefit of abrogating Article 370? The answer is, similar privileges given to many sections of tribes and parts of North East through Article 371! Article 370 is required to be abrogated to nullify Pakistan’s claim. The authenticity of Constitution of Jammu and Kashmir is very important if we refer Part-II the state as below:

PART II

THE STATE

3. Relationship of the State with the Union of India:-The State of Jammu and Kashmir is and shall be an integral part of the Union of India.

4. Territory of the State:-The territory of the State shall comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty of the Ruler of the State.

5. Extent of executive and legislative power of the State:- The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India.

The above is self explanatory territory of state and Power of Parliament to makes law as per the Constitution of India. Thus Pakistan legally can’t be a stake holder and Parliament can make acts that central acts can be applicable to J&K without concurrence of J&K Assembly!

However further debate is always required!






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