Tuesday, March 09, 2010

Why Article 370 Can be Abrogated

A.G.Noorani repeats an argument he has made before in the latest edition of Frontline that 'Article 370 cannot be abrogated or amended by recourse to the amending provisions of the Constitution, which apply to the other States'. Well, why not? I quote the relevant portion of his article here:

The BJP must remember that Article 370 cannot be abrogated or amended by recourse to the amending provisions of the Constitution, which apply to the other States. Article 368 has a proviso that says that no constitutional amendment “shall have effect in relation to the State of Jammu and Kashmir” unless applied by order of the President under Article 370. That requires the concurrence of the State’s government and ratification by its Constituent Assembly.

Jammu and Kashmir is mentioned among the States of the Union in the First Schedule as Article 1 (2) requires. But Article 370 (1) (c) says, “The provision of Article 1 and of this Article shall apply in relation to that State.” Article 1 is thus applied to the State through Article 370. What would be the effect of its abrogation, as the BJP demands?

When Kashmir’s Constituent Assembly was “convened” on November 5, 1951, the State government lost forever its “interim” power to accord its concurrence. When it dispersed on November 17, 1956, after adopting the State’s Constitution, there vanished the only authority that could cede more powers to the Centre or extend any Central institutions to the State.


I cannot make much sense of this reasoning. Art.368 grants parliament the power to amend any provision of the constitution of India including art.370 (This remains generally true barring some unclear limitations imposed by the Supreme Court in case of provisions that violate an undefined 'basic structure' but that is a separate discussion for another day). The provisions of the Constitution of India have been extended with some modifications to Jammu and Kashmir under art.370(1)(d). The Constitution Order, 1954 issued by the President in exercise of this power has a proviso to art.368 which prevents constitutional amendments from taking effect 'in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of article 370'. If art.370 is abrogated, this constitution order itself including this proviso as well as the President's need for concurrence of the State government will cease to be operative. Only the general provisions of Art.368 will apply to J&K as they do to the rest of the country. Of course, in the hypothetical instance that any Central government does this, it would surely design such an amendment Act to ensure that the legal transition from a distinct constitutional system to assimilation with the rest of India is smooth.

3 comments:

Hindu Fundamentalist said...

I re-read the argument by Noorani but it didnt make much sense to me.

What exactly is Noorani trying to recommend? To wriggle hands at our helplessness is stupidity. He must be pointing out solutions which will enable us to better integrate Kashmir.

But we all know his intention is not to offer solutions but to push a divisive agenda.

Pilid said...

HF,

I have never been able to definitely say what Noorani recommends but his writing usually is along the lines that the original understanding between the Nehru government and Sheikh Abdullah was violated by later actions of the Central government and these should therefore be reversed and both sides should return to something akin to (even if not exactly) the pre-1953 arrangement. He has never supported integrating Kashmir as the BJP understands it. Quite the opposite: he has favored a quasi-independent state with its stability and autonomy guaranteed by some sort of agreement with Pakistan (again, he has never been very specific with the details).

Venkat Ramanan said...

What is this moron trying to say?

I think it's because of such intellectuals (including VR Krishna Iyer) who speak in Victorian English instead of a language the masses can understand, our country is still a third world country. When larger public cannot understand a policy statement, how can they take a decision on the same?