Art. 370 and its amendment/repeal


The Ruler of Jammu & Kashmira, Maharaja Hari Singh, signed an Instrument of Accession, which was accepted by the Governor General on 27the Oct. 1947. Under this instrument only three subjects i.e. external affairs, defense & communications, were surrendered by the state to the dominion of India. Thus the state of Jammu & Kashmir has a much greater measure of autonomy and power than enjoyed by the other states. 


Under the said article the powers of Parliament to make laws for the state of J & K are limited to: 
1. By consultation with the state Govt. -- those matters in the Union List and Concurrent List, which correspond to the subjects specified in the Instrument of Accession. 
2. By concurrence with the state Govt. -- such other matters in the Union List & Concurrent List, which the President may by order, specify.

In a way, Art. 370 empowers the President to define the constitutional relationship of the state of J & K in terms of the provisions of the Indian Constitution, subject to the stipulation that he can do so with reference to the matters in the Instrument of Accession in consultation with, and with reference to other matters with the concurrence of, the sate Govt. (M.P. Jain – Constitutional Law) 

Thus Art. 370 is a special provision for amending the Constitution in its application to the state of J & K. It is not affected by Art. 368 i.e. amendment of the constitution. Art. 370(3) empowers the President to issue a public notification saying that the said article 370 shall cease to be operative upon the recommendation of the Constituent Assembly of the state. 

The Constituent Assembly of the state does not exist anymore. Therefore the questions remain:
1. Whether the President can issue a public notification under Art. 370(3) to cease the operation of Art. 370 without any kind of recommendation by the State Govt. of J & K? 
2. Whether the 'recommendation' of the State Govt. of J & K as ‘successor in power’ to the Constituent Assembly (if such constitutional interpretation is plausible) would be required before the President issues such public notification? 
3. Considering that the Constituent Assembly is no longer in existence does Art. 370(3) still remains operative? 

In this regard the view of the learned author Shri M.P. Jain is as below: 
Since the Constituent Assembly of the said state exists no more, Art. 370(3) is no longer operative. The only way to modify or repeal this article 370 is by way of amendment to the constitution under Art. 368. 

However a question again arises whether such an amendment without the 'concurrence' of the state legislature possible? Mr. M. P. Jain answers this by saying that, by virtue of the Constitution (Application to J & K) order 1950, any amendment to the Constitution does not apply to the State unless it is extended there to by a Presidential Order under Art. 370(1) which again involves ‘concurrence of’ the State Govt. 
Therefore: 
1. A unilateral notification by the President declaring that Art. 370 shall cease to operate is not possible now. 
2. Amendment or Repeal of Art. 370 under the amending powers of the constitution of India, Art. 368 without the concurrence of the State Govt. of J & K is not possible.
 
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Practicing Advocate since 1986

Only Politicians want to rake up Article 370 of the Constitution of  India that too before the Lok Sabha  Elections and no Patriotic Indian would rise Kashmir Article 370 of the Constitution of India. World have had heard enough about Article 370 of the Constitution of India. I request Indians not to rake up Article 370 of the Constitution of India before Lok Sabha elections that will harm to the Person/s or Political Party/s.

 
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editor

First of all we need to recall some well-known facts.

One: Article 370 was Article 306-A of the Draft Constitution and was discussed in the Constituent Assembly on 17th Oct, 1949. This provision was inserted as a temporary arrangement until Constituent Assembly of J&K was formed and it endorsed the Constitution of India.

Second: Article 370 is part of Chapter XXI of Constitution. Its original Title contained only “Temporary and Transitional”. “Special” was added through Constitution (Thirteenth Amendment) Act, 1962. Most important “Special” does not apply to 370 but applies only to “371 to 371-I”

Third Article 370(1)(a) says Notwithstanding anything in this Constitution:  the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir.”

Article 238 made two categories of states in India, Part A (Governed by British) and Part B (Governed by Princely States). J&K was Part B state, but that distinction was removed through States Reorganisation Act of 1956. Hence 370(1)(a) becomes a redundant provision.

An absolutely erroneous impression is being created by melodramatic assertion implying that Article is a bridge between India and J&K and in case article 370 is abrogated J&K no more remains part of India.

It is far from truth and nothing of the sort will happen. In case 370 is abrogated or modified, Article – 1 of Indian Constitution still stays and J&K Constitution too firmly lays down in Section-3 that J&K is and shall remain integral part of India. Hence in absence of Article 370, Article – 1 of Indian Constitution and Section-3 of J&K Constitution ensures the state to remain an integral part of Indian union. So such fears are unfounded.


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editor

First of all we need to recall some well-known facts.

One: Article 370 was Article 306-A of the Draft Constitution and was discussed in the Constituent Assembly on 17th Oct, 1949. This provision was inserted as a temporary arrangement until Constituent Assembly of J&K was formed and it endorsed the Constitution of India.

Second: Article 370 is part of Chapter XXI of Constitution. Its original Title contained only “Temporary and Transitional”. “Special” was added through Constitution (Thirteenth Amendment) Act, 1962. Most important “Special” does not apply to 370 but applies only to “371 to 371-I”

Third Article 370(1)(a) says Notwithstanding anything in this Constitution:  the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir.”

Article 238 made two categories of states in India, Part A (Governed by British) and Part B (Governed by Princely States). J&K was Part B state, but that distinction was removed through States Reorganisation Act of 1956. Hence 370(1)(a) becomes a redundant provision.

An absolutely erroneous impression is being created by melodramatic assertion implying that Article is a bridge between India and J&K and in case article 370 is abrogated J&K no more remains part of India.

It is far from truth and nothing of the sort will happen. In case 370 is abrogated or modified, Article – 1 of Indian Constitution still stays and J&K Constitution too firmly lays down in Section-3 that J&K is and shall remain integral part of India. Hence in absence of Article 370, Article – 1 of Indian Constitution and Section-3 of J&K Constitution ensures the state to remain an integral part of Indian union. So such fears are unfounded.

 
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The Article 370 which was a tempororay provision needs to be repealed by Constitution Amendment Act.. With the passage of time as Nation marches ahead , these relics of past need to be cast aside in same fashion as Article 238 ,Article 362 and Article 291. The Amending Act will also have Saving Clauses for the existing Acts applied in J&K to the extent that they are consistent with the provisions of the Constitution.Those who think that there will be legal difficulties after the Repeal, should just go through the Constitution of India minus Article 370. No bridge is required between States listed in FIRST SCHEDULE and THE UNION. .Part IX of Constitution is governing the relations between States and the Union. It is disgrace that we have contnued with two citzenships-, two Flags and archaic property laws till now in J&K. 

 
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1. A unilateral notification by the President declaring that Art. 370 shall cease to operate is not possible now. 2. Amendment or Repeal of Art. 370 under the amending powers of the constitution of India, Art. 368 without the concurrence of the State Govt. of J & K is not possible.
 
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