Decoding The Legal Debate on Article 370

Vibodh Gupta
“All these days, since 5 August 2019 one thing that has been made crystal clear is the fact that Article 370 of Indian Constitution was not at all a special status but temporary arrangement.”
With the abrogation of temporary arrangement for J&K in Article 370, the State has again become the centre of debate and discussion for the rest of the country. Breaking all the stereotypes the Bharatiya Janta Party led Central Government took the legal and fairly democratic process to end various provisions of Article 370 against the backdrop of various provisions mentioned in the same Article. The new interpretations and changes very strongly presented India’s position before the rest of the world. This time Indians across the globe felt proud of a very strong and visionary leadership of the country for this bold and historic step for the country. This was clear from the fact that the whole country celebrated this and ignited the spark of oneness and patriotism within and outside the country. Simultaneously, agents of the vendetta politics tried to misled the common masses through their antinational and nefarious designs.
Despite the fact that Article 370 is a combination of few hundred words in terms of text, but very few people read it and unfortunately the narratives are generally based on speeches and secondary texts made to manipulate reality and prevailed to benefit few high and mighty families in the State. At the same time it is a matter of great concern that people outside the state also could not get a clear picture about this temporary provision in our constitution. In the light of this under present circumstances it becomes very vital that proper awareness must be created among the masses with easily understandable, strong and updated facts.
The legal route that Government took to decode these stereotypes and misinformation on Article 370 is a matter of satisfaction. Presently everyone especially our younger generation needs to enlighten themselves with more and more information and facts on Article 370.
Now let’s understand the legal provisions of Article 370 and its background.
Article 370 was merely an enabling provision with regard to the State of J&K with temporary provisions created about 70 years back. Clause 3 of the Article empowers the president of India to decide the limit of the jurisdiction of the Indian Constitution over the State of Jammu & Kashmir. Article 370(1)(c) states that Article 1 & Article 370 shall apply to J&K. Article 370(1)(d) states that other provisions of the constitution can be made applicable to J&K with modifications as the President may by order specify in consultation with the State Government. In this way both these provisions of Article 370 deal with the applicability of Indian Constitution to J&K.
Article 370(3) states that the president can issue a notification making the whole article inoperative or operative with modifications as he notifies, if such a recommendation is made by constituent assembly.
The Article 370 was introduced as a temporary provision which was expected to be inoperative before the dissolution of J&K constituent assembly. However, it dissolved in 1956 without recommending abrogation or any modification. This was the primary challenge that successive past governments faced to abrogate Article 370.
However the present Government under the leadership of India Prime Minister Narendra Modi surpassed every challenge to ensure the complete integration and end of the discriminatory provisions in the State.
The mammoth work began with presidential order which may be called “The Constitution (Application to Jammu and Kashmir) Order, 2019” that scrapped all its previous orders issued under Article 370 and full applicability of Indian Constitution was made. This was done through 370(1)(d) which empowers the president to apply all provisions of Indian constitution to J&K. However, such an order needs the concurrence of the State Government whereas the State is under President’s rule and thus Governor and his administration acted as the final authority.
In the next steps, the presidential order added a new sub-clause (4)(d) in Article 367 of the Indian constitution which amended the words constituent assembly contained in proviso clause 3 to mean legislative assembly. Hence the challenge of constituent assembly was overcome with this equation. The new interpretation can be easily used to amend or abrogate Article 370 as the obstacle of non-existent constituent assembly was removed.
In the new interpretation upon the recommendation of J&K State Assembly president may abrogate Article 370. Accordingly, the recommendation to the president to abrogate Article 370 was issued by the Home Minister through his resolution.
After the resolution was adopted by both Houses of the Parliament, the president issued Constitutional Order 273 on 6 August 2019 replacing the text of Article 370 with the following text:
370. “All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under Article 363 or otherwise.”
In this way, all the odds were struck down to realise the dream of Ek Vidhan, Ek Pradhan aur Ek Nishan. However, the friends of enemies in the country will work hard to multiply the misinformation on the present scenario which is very clear from Imran Khan’s speech in UN which repeatedly quote statements issued by Congress to falsely question India’s stand on Kashmir. But let’s get one thing very clear that it is the youth of J&K which will be benefited the most with this bold yet avant-grade decision. The state rooted in a glorious past is all set to have a galvanising future. The nation looks optimistically towards youth of J&K. “Be the best, Be the bravest”.
In the contemporary circumstances, every informed citizen of India needs to understand the fact that how important and urgent it was to wipe out various temporary provisions of Article 370. Now let’s take a resolve that we will use this historic opportunity to give a new direction to Jammu & Kashmir. Present Central Government has given the youth of J&K a great opportunity to make their fortunes as per their own wishes.
(The author is a senior BJP leader)


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