10th June 2018
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.[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.
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.