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Underlying Concepts Behind Article 370: Why We Cannot Scrap Article 370? Underlying Concepts Behind Article 370: Why We Cannot Scrap Article 370?

Bronze medal Reporter Adv John Posted 2 Dec 2018 Post Comment Visitors: 238 Read More News and Blogs
Underlying Concepts Behind Article 370: Why We Cannot Scrap Article 370?

The article 370 of the Indian Constitution is related to the provisions for the state Jammu and Kashmir giving it a special autonomy. It is around sixty-six years old for this article. The constitution of India was built up on January 26, 1950, and article 370 came into existence after many debate and reviews. It is treated as the aspiration of the people of Jammu and Kashmir.

The article 370 correlates Jammu and Kashmir with the rest of India and it is the only one article which gives a constitutional finality to Jammu and Kashmir to be an integral part of India. Several petitions have been filed for its amendment. But the courts refused it because of the observation that it will cause a dispute between the parties of J&K and the government. One of the main features of this article is that the amendment of the constitution becomes applicable to J&K only when an order issued by the Indian president.

Maharaja Hari Singh who was a former king of Jammu and Kashmir wanted to make the state another Switzerland and refused to merge with India or Pakistan. But when Pakistan had attacked the state, he seeks the help of Indian government. India agreed to help the King but asked to merge with India. Finally, the king made the agreement to merge and it became part of India.

The view of the Supreme Court on article 370 is that its amendment can only be done by parliament. Supreme Court states that “We can strike down a provision if it is unconstitutional but we cannot be asking parliamentary to remove a provision. It has to be done by parliament”. So by considering all these facts, it must be very difficult to scrap article 370 in the constitution of India. The article 370 is stated here:

Article 370 in The Constitution Of India 1949

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

(1) Notwithstanding anything in this Constitution,

(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;

(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 purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948 ;



(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 proviso 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.

For more information, you can have the help of lawyers in India.


Click on the image to read more about DIFFERENCE BETWEEN ARTICLE 249 AND ARTICLE 252 OF THE INDIAN CONSTITUTION

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