Thoughts on economics and liberty

What is the legal situation regarding the removal of Article 370 from India’s Constitution?

Swarna Bharat Party opposes Article 370 on fundamental grounds of incompatibility with India’s broader Constitution.

Our position is the following:

We believe that the Indian State of Jammu and Kashmir is an integral part of India and are committed to abrogation of the Article 370 of the Constitution of India, which has created a dual layer of sovereignty within a single nation. It does not make any sense for Kashmiri Indians to be able to freely settle in any part of India, but for other Indians to not be able to do so in Kashmir. This reform will, however, be done in a manner which assures liberty to all Indians through a range of other reforms detailed elsewhere, and allows good governance to be established everywhere in India. Only after the rule of law along with equal opportunity has been brought to all Indians, will we request a recall of the J&K Constituent Assembly (as required by Article 370(3) of the Constitution) to consider this amendment. Without the goodwill and consent of the people of J&K, such an amendment will violate the spirit of democracy and liberty.

I drafted this provision based on a detailed reading of the Article, which states:

370. Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything contained in this Constitution,—

(a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;[a]
(b) the power of Parliament to make laws for the said state shall be limited to—

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation: For the purpose of this article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.[1][12][b]

(c) the provisions of article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second provision to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(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.[13]

But is SBP’s position the correct one?

I was referred to this talk by Sushil Pandit which vigorously argues that a mere Presidential proclamation is sufficient to eliminate this Article. I’ve uploaded the relevant extract on my yotube channel:

In this video Pandit cites Jaitley’s speech:

I’ve not had time to thoroughly review this new material. Would appreciate anyone who can provide me with a detailed legal opinion that confirms that 370 can be eliminated by a mere Presidential proclamation. If that is confirmed, then SBP will definitely amend its policy accordingly.

Sanjeev Sabhlok

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6 thoughts on “What is the legal situation regarding the removal of Article 370 from India’s Constitution?
  1. Raj

    The day India revokes the right to self-rule and self-choice over one’s land for a people, suspecting ones would ultimately feel uneasy.

    As they should. I would not want to be part of a tyrant Union. The day that happens, wisdom only dictates India should disintegrate.

    Sushil Pandit can then be satisfied living in the Ganges and having the red Visa to head to Goa.

    Tyranny never survives. Don’t head down the path when you have the time. The nation will not survive such tyranny.

    If TN hates being a part of Indian anymore, what right do YOUU have to tell the residents of the place they have to remain with you?

    What laws of the jungle?! Animals try to conquer others. Perhaps the wisest thing to do is to revolt.

    I mean, even the British had legal rights over India, and India was very “integral” to Britain.

    Government derives authority through tax and consent to self-rule. If the Tamils do not want Haryanis and Beharis to have a say on their matters through Parliament. They dictate that.

    Thus, the govt. of Haryana and Behar no more have to protect those other people or be accountable to them. They get their own govt. for which they will pay, through TAMIL TAXES.

    I dare ya to try this nonsense, and challenge anything but revolt.

  2. Raj

    If you want an India Sanjeev, acknowledge and respect the fact that people can choose whether to remain or not.

    And then, tell them why it’s worth being One. I love this country. But I love my Liberty more..

  3. Rakesh Pujari

    The below video provides a detailed explanation as to why abrogation of article 370 is extremely difficult (if not impossible). The central argument remains that abrogation would require approval from LS, RS, President and J&K assembly. Also, the video opines that abrogating article 370 would render Kashmir’s Instrument of Accession to the Indian Union null and void.

  4. Raj

    One last thing S, it is time, high time that you not shout for liberty, but also respect it.

    Release my comments and not just discard these ‘objectionable’ but clearly rational comment, like you have done every time.

    Surely if it isn’t vile, you mustn’t suppress it by your principle, is it not?

    There is no justification for colonialism. The people not only choose who rules them, but also what it is they belong to and what is ruled.

    Jammu and Ladakh could stay. Kashmir will go its way. Perhaps the Sikh-majority districts may leave, leaving the Hindu-majority districts within.

    The North-east Christian majority regions may well leave. Remember, they never chose to be in it firstly.

    You are left with Hindu India mostly. Continue your bullshit Sanjeev, the South and West would go too.

    The cow-worshippers really need to stop their hot-blooded cacaphony and just CLAM DOWN and think! (You aren’t a Ganga-beltman but you do side with them). You’re making life irreversibly hard for too many people.

    Do not make India a bomb waiting to blow. Empires fall. We must wait and see when this one does.

  5. Sanjeev Sabhlok

    Raj, sorry but you would be better off studying the issue instead of ranting. I do find you take off on tangents frequently and become paranoid and obtuse. Kindly grow up.

  6. Sanjeev Sabhlok

    Thanks, Rakesh. Sadly, the video is too long and convoluted. I do not agree that it would render Kashmir’s accession null and void. That’s a furphy.

    I’m now inclined to the tentative view that this matter can only be resolved in one way: through an actual Presidential revocation that would then be (obviously) tested in the Supreme Court. At that stage, all data/evidence would be marshalled and the Supreme Court could tell the world precisely what the legal situation is.