EIGHT POINTS TO KNOW ABOUT ARTICLE 370

16 Jan 2018 11:31:36

 


P. Kumar

 

1) What exactly is the function of Article 370? 

 

Article 370 is nothing but an added measure for legislative convenience.

 

 

2) How does it differentiate Jammu and Kashmir from the other States of the Indian Union?  

 

It does not give any autonomy to the State of Jammu and Kashmir. Neither does it set Jammu and Kashmir on a special footing.  This article is only useful to determine some technicalities, when the procedure for making laws is activated. Thus it comes into play when making laws for the State.

 

 

3) How is Article 370 responsible for good governance?

 

 It has nothing to do with the administration of government which is an executive function. It will only affect the premise of good governance by the fact that its abrogation will allow the centre to extend to the people of the State some welfare legislations which the corrupt administrators of the State have not yet implemented. The fundamental rights and civil liberties of the people there will also become enforceable as the Jammu and Kashmir people are still deprived of many of these rights while the existence of the article continues.

 

 

4) How is Article 370 beneficial to the people of Jammu and Kashmir?

 

It is beneficial to only some people of Jammu and Kashmir. Those people are known as the politicians and certain ministers who maintain their corrupt seats and use the article to prevent the anti-corruption laws like Lokpal and Lokayukta Acts from being implemented in the State.  The ‘Right to Information’ Legislation, as formulated by the Union, has not been implemented in Jammu and Kashmir. The State has modified the Act’s application to the State, to such an extent to make it virtually useless, therefore defeating the purpose with which the Act was passed.

 

 

5) Does the abrogation of Article 370 result in the undoing of the Accession of Jammu and Kashmir to India?

 

Absolutely not. The Instrument of Accession and subsequent elections expressing the wish of the people which was held in Jammu and Kashmir,

cemented the unequivocal and irrevocable Accession of Jammu and Kashmir to India. Jammu and Kashmir became integrated with the Union of India in 1947 and the Constitution of Indiabearing Article 370, was adopted in 1950. Therefore it is beyond a shadow of a doubt that the Article 370, which is merely a temporary provision, for legislative convenience, has nothing to do with the Accession.

 

 

6) Is Article 370 a temporary provision of the Constitution of India?  

 

Yes, Article 370 is a temporary provision of the Constitution of India. There is only one article in the Constitution of India which is temporary and even more, labeled as temporary i.e Article 370. This provision is explicitly mentioned as temporary under Part XXI of the Constitution of India.

 

 

7) Does Article 370 come under the ‘basic structure’ doctrine?  

 

No. Article 370 does not by any stretch of the imagination, come under the basic structure doctrine. Important provisions like ‘secularism’, ‘equality’, ‘liberty’, ‘integrity’ etc. form a part of the basic structure of the Constitution of India. Article 370, in all honesty is not even on the same footing as the other provisions as it is only a temporary provision as opposed to the permanent provisions which form the heart and soul of the Constitution.

 

 

8) What is the procedure for abrogation of this Article?  

 

Article 368 of the Constitution lays down the procedure for the amendment of the provisions of the Constitution. However, Article 370 may be abolished in two ways. A.) The Parliament may repeal the provision by a two-third majority of its members present and voting. B.) As has been stated in the Article itself, the President of India may, by order, repeal the provision and it will no longer exist. It is pertinent to note here that normally the provisions of the Constitution can never be abrogated by the Presidential order because the repealing of laws is the task of the legislative and not the executive. Nonetheless in this case, the founding fathers who inserted the provision meant this to be only an interim measure and, therefore, this procedure of abrogation is allowed for convenience and expedience.

 

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