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Abrogation of Article 370 a very complex affair, say legal experts

Abrogation of Article 370 a very complex affair, say legal experts

The repealing of Article 370 has been a poll promise of the BJP. It has been opposing the special status for J&K for a long time.

D P Satish
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New Delhi: The Minister of State in the Prime Minister's Office (PMO) Dr. Jitendra Singh has said that a debate on the repealing of Article 370, which guarantees special status to Jammu & Kashmir has begun. Speaking to the media after taking charge Jitendra Singh said "the process of repealing the Article 370 has started. We are speaking to all stake holders. The BJP has won more than half of the seats from Jammu and Kashmir. So will you interpret is as an endorsement of BJP's stand on the Article 370? It is more like a psychological barrier".

He said that having a debate does not mean that the BJP had deviated from it. Jitendra Singh is a Lok Sabha member from Udampur in Jammu & Kashmir.

The repealing of article 370 of the Constitution has been a poll promise of the BJP. The BJP has been opposing the special status for Jammu & Kashmir for a long time. It had earlier claimed that it could not repeal the Article 370 during Vajpayee government due to lack of majority. The BJP has been opposing its since its earlier avatar Jan Sangh days.

Dealing with Article 370 in the chapter on Jammu and Kashmir, the BJP manifesto said "the BJP reiterates its stand on the Constitution provision and will discuss this with all stakeholders and remains committed to the abrogation of this article."

Return of the Kashmiri Pandits to the land of their ancestors with full dignity, security and assured livelihood will figure high on the BJP's agenda, it said.

If the government goes ahead with the process of repealing the contentious issue Article 370, it can even snowball into a huge controversy.

Both Jammu & Kashmir Chief Minister Omar Abdullah and his father Dr. Farooq Abdullah have opposed any such move. The Congress spokesperson Manish Tiwari has questioned the decision.

WHAT IS ARTICLE 370?

This article specifies that except for Defence, Foreign Affairs, Communications and ancilliary matters (matters specified in the instrument of accession) the Indian Parliament needs the State Government's concurrence for applying all other laws. Thus the state's residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.

Similar protections for unique status exist in tribal areas of India including those in Himachal Pradesh, Arunachal Pradesh, Andaman & Nicobar Islands and Nagaland. However, it is only for the state of Jammu and Kashmir that the accession of the state to India is still a matter of dispute between India and Pakistan still on the agenda of the UN Security Council and where the Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the Union and Jammu and Kashmir State within the ambit of this article

Why it was incorporated

Dr. Amitabh Mattoo, former Vice Chancellor of Jammu University explains it in an article in 'The Hindu'.

"First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker, Maulana Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: "Why this discrimination please?" The answer was given by Nehru's confidant; the wise but misunderstood Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the principal drafter of Article 370). Ayyangar argued that for a variety of reasons Kashmir, unlike other princely states, was not yet ripe for integration. India had been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still "unusual and abnormal." Part of the State's territory was in the hands of "rebels and enemies."

In fact today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction. The only substantial differences from many other States relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of "internal disturbance" without the concurrence of the State; and the name and boundaries of the State, which cannot be altered without the consent of its legislature. Remember J&K is not unique; there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I.

Fourth, can Article 370 be revoked unilaterally? Clause 3 of Article 370 is clear. The President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. Of course, Parliament has the power to amend the Constitution to change this provision. But this could be subject to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot, therefore, be amended".

CAN PARLIAMENT AMEND CONSTITUTION?

The Government can amend the Constitution to facilitate the abrogation of Article 370. But, it is not going to be an easy job. According to Lok Sabha legislation rules Money Bills and Bills seeking to amend the Constitution can't be passed by calling a joint session of the Parliament.

Joint sitting rules says, "Article 108(1) of the Constitution provides that when a Bill (other than a Money Bill or a Bill seeking to amend the Constitution) passed by one House is rejected by the other House or the Houses have finally disagreed as to the amendments made in the Bill or more than six months lapse from the date of the receipt of the Bill by the other House without the Bill being passed by it, the President may, unless the Bill has lapsed by reason of dissolution of Lok Sabha, notify to the Houses by message, if they are sitting, or by public notification, if they are not sitting, his intention to summon them to meet in a Joint Sitting. The President has made the Houses of Parliament (Joint Sittings and Communications) Rules in terms of clause (3) of Article 118 of the Constitution to regulate the procedure with respect to Joint Sitting of Houses. So far, there have been three occasions when Bills were considered and passed in a Joint Sitting of the Houses of Parliament".

The total strength of the Lok Sabha is 543 members and the ruling BJP led NDA has 336 MPs in the Lok Sabha. The two-third majority requires over 362 MPs votes in favour of the amendment bill. It can take the help of other regional parties, if it really wants to amend the Constitution. But, it is not going to be an easy job.

In Rajya Sabha the ruling NDA has less than 80 MPs. The BJP alone has just 45 MPs. The total strength of the Rajya Sabha is 250. However, the purpose of the BJP would be served, even if it tables the bill seeking abrogation of the Article 370. It can later claim that it tried to fulfill its poll promise.

VIEWS OF CONSTITUTIONAL EXPERTS

But many legal experts are of the view that abrogating the provision would put the accession of the state to India in jeopardy. Because the nature of the accession of J&K into the Union of India is totally different from the merger of all other small and big states. More over there is a debate over whether Article 370 is a part of basic structure of the Constitution and whether it can be amended.

According to Constitutional expert Rajiv Dhavan, the Article 370 can't be abrogated because the government do away with it, the very basis of accession will be in jeopardy. But he asserts that accession of J&K to India is permanent.

According to a report in the Hindustan Times newspaper former Jammu and Kashmir high court chief justice BA Khan, too, agrees with Dhavan. He says "If Article 370 was abrogated, then technically and legally the foundation of Jammu and Kashmir's accession to India would cease to exist."

According to former Union Law minister Shanti Bhushan, under Article 368 of the Constitution, the Parliament has the power to amend the Constitution. But in view of the Supreme Court's ruling in the Kesavananda Bharati case, Parliament can't amend the basic structure of the Constitution. According to him obtaining the opinion of the Supreme Court is a must before going ahead with the abrogation of Article 370. There are doubts over whether Article 370 is a part of the basic structure of the Constitution or not.

HOW TO AMEND CONSTITUTION

Amendment procedure: - for the purposes of amendment the provisions of the constitution fall under three categories. The procedure of each category is laid down in the constitution.

Firstly, those that can be affected by a simple majority, required for passing of an ordinary law. These amendments contemplated in articles 4,169 and 239-A and paras 7 and 21 of the fifth and sixth schedules respectively 239-A fall within this class. They are specifically excluded from the purview of Article 368.

Secondly, those that can be affected by a special majority as laid down in Article 368(2). All constitutional amendments other than those referred to above come within this category and must be affected by a majority of the total membership of each house of parliament as well as by majority of not less than two-thirds of the members of that House present and voting.

Thirdly, those that require, in addition to the special majority as described above, ratification by resolution passed by not less than one- half of the State legislatures. This class comprises amendments which seek to make any change in the provisions referred in the proviso to article 368(2).


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