Article 370 of the Constitution of India

INTRODUCTION

The present study is aimed to trace the process of federalization in India and the inclusion of

special provisions for the Jammu and Kashmir state embodied in Article 370 of the constitution

of India. Since Jammu and Kashmir presents a variant of federal structure in which the Indian

states were welded, the present study is expected to provide a perspective for the future

evolution of the federal frames which the founding fathers of the Constitution of India

constructed. In recent years there has been insistent emphasis on the recognition of sub-national

diversities of India as components of the Indian federal system. The present study, which is

focussed on the analysis of the constitutional placement of Jammu and Kashmir in the Indian

federal structure, as a sub-national identity, reveals much and can serve as an indicator for any

reconsideration of the federal relations the Constitution of India embodies.

pg. 1
Article 370 of the Constitution of India

HISTORICAL BACKGROUND OF ARTICLE 370

Historical aspect When India and Pakistan gained their independence on 15 and 14 August

1947, respectively; J&K chose to remain independent. There was an agreement by J&K with

Pakistan and India that none of them will attack J&K. While India respected the agreement and

exercised restraint, Pakistan attacked Kashmir in a bid to annex it by force. On 6 October 1947,

Kashmir was attacked by Azad Kashmir Forces supported by Pakistan. To save J&K,

Maharaja Hari Singh (the then ruler of J&K) chose to accede J&K to India. In October 1947,

the accession was made by the ruler in favour of India in consideration of certain commitments

made by Pt. Jawaharlal Nehru (the then Prime Minister of India). It was in the pursuance of

those commitments that Article 370 was incorporated in the Constitution.

The Ruler of Jammu and Kashmir signed the instrument of accession whereby only three

subjects were surrendered by the State to the Dominion of India. External affairs Defence and

Communications The State enjoys a greater measure of autonomy and the power of the Union

of India is restricted, as regards other States. Article 370 is a special clause in Indian

Constitution, a prize that was extracted out of India in 1950 by Sheikh Mohammed Abdullah

for throwing his lot with India, after lengthy negotiations with Indian leaders. Article 370 made

Jammu and Kashmir a country within a country, with its own flag, emblem, constitution and

Sadr-i-Riyasat (Prime Minister). The architect of the Indian Constitution, Dr. Ambedkar,

opposed granting Article 370 but it was on Indias first Prime Minister Jawaharlal Nehrus

insistence and personal guarantee that it was granted to the state. Article 370 specified that

except for Defence, Foreign Affairs and Communications, the Indian Parliament needed the

State Governments concurrence for applying such laws to Jammu and Kashmir as did not fall

under the heads of Defence, Foreign Affairs and Communications. Parliamentary laws

pertaining to these three subjects required consultation with the J&K State Government. Over

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Article 370 of the Constitution of India

the years, this procedure was followed to bring the state under the purview of Article 356, the

Supreme Court, the Election Commission, the Comptroller and Auditor General, thus

providing some level of order in the state. Article 370 was temporary arrangement. The

Constituent Assembly was dissolved in 1957 prior to the first State Assembly elections and

after it ratified the states accession to India and framed the states constitution adopted on 17th

November and coming into full force from 26th January 1957.

pg. 3
Article 370 of the Constitution of India

WHY IT WAS INCORPORATED?

First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker,

Maulana Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: Why this

discrimination please? The answer was given by Nehrus confidant; the wise but

misunderstood Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the

first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the

principal drafter of Article 370). Ayyangar argued that for a variety of reasons Kashmir, unlike

other princely states, was not yet ripe for integration. India had been at war with Pakistan over

Jammu and Kashmir and while there was a ceasefire, the conditions were still unusual and

abnormal. Part of the States territory was in the hands of rebels and enemies.

The involvement of the United Nations brought an international dimension to this conflict, an

entanglement which would end only when the Kashmir problem is satisfactorily resolved.

Finally, Ayyangar argued that the will of the people through the instrument of the [J&K]

Constituent Assembly will determine the constitution of the State as well as the sphere of Union

jurisdiction over the State. In sum, there was hope that J&K would one day integrate like other

States of the Union (hence the use of the term temporary provisions in the title of the Article),

but this could happen only when there was real peace and only when the people of the State

acquiesced to such an arrangement.

Second, did Sardar Vallabhbhai Patel oppose Article 370? To reduce the Nehru-Patel

relationship to Manichean terms is to caricature history, and this is equally true of their attitude

towards Jammu and Kashmir. Nehru was undoubtedly idealistic and romantic about Kashmir.

He wrote: Like some supremely beautiful woman, whose beauty is almost impersonal and

above human desire, such was Kashmir in all its feminine beauty of river and valley... Patel

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Article 370 of the Constitution of India

had a much more earthy and pragmatic view and as his masterly integration of princely

states demonstrated little time for capricious state leaders or their separatist tendencies.

But while Ayyangar negotiated with Nehrus backing the substance and scope of Article

370 with Sheikh Abdullah and other members from J&K in the Constituent Assembly

(including Mirza Afzal Beg and Maulana Masoodi), Patel was very much in the loop. And

while Patel was deeply sceptical of a state becoming part of India and not recognising ...

[Indias] fundamental rights and directive principles of State policy, he was aware of, and a

party to, the final outcome on Article 370.

This article specifies that except for Defence, Foreign Affairs, Finance and

Communications,(matters specified in the instrument of accession) the Indian Parliament needs

the State Governments concurrence for applying all other laws. Thus the states residents lived

under a separate set of laws, including those related to citizenship, ownership of property, and

fundamental rights, as compared to other Indians.

the citizens of J&K are citizens of India, but citizens of the rest of India cannot be citizens of

J&K!!!! He/She does not have a right to any property in J&K. He/She does not have the right

to vote in J&K, even if one has migrated there. The Urban Land Act 1976, which is in force

across the whole of the country, is not applicable to J&K. This means, all the rich landlords,

belonging to the majority community in J&K, can freely indulge in economic exploitation of

the poor. The Indian citizens, who are not state subjects, & living in J&K, cannot even get loans

& financial aids from various institutions, as the State Laws debar them. If a girl, belonging to

J&K, marries a boy who is not a state subject, she loses her all her rights to the state!!!!! The

Wealth Tax cannot be enforced in the state. The State Govt did not accept the Anti Defection

Law, adopted by the rest of the country, & brought in several amendments.

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Article 370 of the Constitution of India

Our Constitution gives equal rights to all citizens, but this right is not applicable in J&K. It is

a case of Locals vs non Locals who are not state subjects. They do not enjoy any political or

economic rights. Their children cannot get admission in colleges in Kashmir. In other words,

Article 370 violates the very principle of Indian Citizenship The vested interests in Kashmir,

be these politicians, bureaucrats, businessmen, judiciary, etc., have misused Article 370 for

their own nefarious purposes, by exploiting the poor and the down-trodden people of the state.

The rich have consistently used Article 370 to ensure that no financial legislation is introduced

in the state, which would make them accountable for their loot of the state treasury. These

include the provisions dealing with Gift Tax, Urban Land Ceiling Act, Wealth Tax, etc. This

has ensured that the rich continue to grow richer and the common masses are denied their

legitimate share of the economic pie. Article 370 has also helped create power elites and local

Sultans, who wield enormous power, which they use to trample upon the genuine demands of

common people for public welfare. As no outsider can settle in the state and own any property

there, the politically well-connected people stand to gain enormously. It is these influential

people who make the rules, decide the price and determine the buyer, since any competition

from an outsider is completely ruled out. The fact is that Article 370 is the only legal window

through which the Republic of India maintains its territorial link with J&K and extends it

jurisdiction to the State. To scrap this special provision would mean reverting to the Instrument

of Accession. Such reversion would merely offer an opportunity to the secessionists in Kashmir

to demand a plebiscite and proved further ground to those seeking to internationalize the issue.

After Kashmirs accession, this state was permitted to enjoy two special rights a separate

Constitution and retention of Kashmir State subject laws, in view the unusual historical

circumstances leading to the accession.

pg. 6
Article 370 of the Constitution of India

IMPLICATION OF ARTICLE 370

This article specifies that except for Defence, Foreign Affairs, Finance and

Communications,(matters specified in the instrument of accession) the Indian Parliament needs

the State Governments concurrence for applying all other laws. Thus the states residents lived

under a separate set of laws, including those related to citizenship, ownership of property, and

fundamental rights, as compared to other Indians.

the citizens of J&K are citizens of India, but citizens of the rest of India cannot be citizens of

J&K!!!! He/She does not have a right to any property in J&K. He/She does not have the right

to vote in J&K, even if one has migrated there. The Urban Land Act 1976, which is in force

across the whole of the country, is not applicable to J&K. This means, all the rich landlords,

belonging to the majority community in J&K, can freely indulge in economic exploitation of

the poor. The Indian citizens, who are not state subjects, & living in J&K, cannot even get loans

& financial aids from various institutions, as the State Laws debar them. If a girl, belonging to

J&K, marries a boy who is not a state subject, she loses her all her rights to the state!!!!! The

Wealth Tax cannot be enforced in the state. The State Govt did not accept the Anti Defection

Law, adopted by the rest of the country, & brought in several amendments.

Our Constitution gives equal rights to all citizens, but this right is not applicable in J&K. It is

a case of Locals vs non Locals who are not state subjects. They do not enjoy any political or

economic rights. Their children cannot get admission in colleges in Kashmir. In other words,

Article 370 violates the very principle of Indian Citizenship The vested interests in Kashmir,

be these politicians, bureaucrats, businessmen, judiciary, etc., have misused Article 370 for

their own nefarious purposes, by exploiting the poor and the down-trodden people of the state.

The rich have consistently used Article 370 to ensure that no financial legislation is introduced

in the state, which would make them accountable for their loot of the state treasury. These

pg. 7
Article 370 of the Constitution of India

include the provisions dealing with Gift Tax, Urban Land Ceiling Act, Wealth Tax, etc. This

has ensured that the rich continue to grow richer and the common masses are denied their

legitimate share of the economic pie. Article 370 has also helped create power elites and local

Sultans, who wield enormous power, which they use to trample upon the genuine demands of

common people for public welfare. As no outsider can settle in the state and own any property

there, the politically well-connected people stand to gain enormously. It is these influential

people who make the rules, decide the price and determine the buyer, since any competition

from an outsider is completely ruled out. The fact is that Article 370 is the only legal window

through which the Republic of India maintains its territorial link with J&K and extends it

jurisdiction to the State. To scrap this special provision would mean reverting to the Instrument

of Accession. Such reversion would merely offer an opportunity to the secessionists in Kashmir

to demand a plebiscite and proved further ground to those seeking to internationalize the issue.

After Kashmirs accession, this state was permitted to enjoy two special rights a separate

Constitution and retention of Kashmir State subject laws, in vie the unusual historical

circumstances leading to the accession.

pg. 8
Article 370 of the Constitution of India

IMPACT OF ARTICLE 370

The Article 370 was clearly meant to be a temporary provision included in the Constitution to

cater for the specific requirements of the troubled times immediately after Indias independence

and the states accession to India. It was meant to remain in operation during the existence of

the States Constituent Assembly.

As time passed, the vested interests within Jammu and Kashmir and the compulsions of various

political parties outside the state to appease their vote banks ensured its retention. No thought

was spared by the votaries of the retention of Article 370 for the enormous potential this

would have to wreak havoc on the unity and integrity of the country. It is the only state in India

which has a constitution of its own.

To begin with, Article 370 has built emotional and psychological barriers between the people

of Kashmir and the rest of India, thus fostering a psychology of separatism. Existence of this

statute is used by Pakistan and its proxies in the valley to mock at the very concept of India

being one from Kashmir to Kanyakumari. It has kept alive the two-nation theory. Over a

period of time, the separatist lobby in the state has used this barrier to build a mindset of

alienation. Such a possibility had been clearly visualised by many political stalwarts who

comprised the Constituent Assembly of India. While speaking in the Constituent Assembly of

India on October 17, 1949, one of its distinguished members, Hasrat Mohani had said, The

grant of special status would enable Kashmir to assume independence afterwards.

The vested interests in Kashmir, be these politicians, bureaucrats, businessmen, judiciary, etc.,

have misused Article 370 for their own nefarious purposes, by exploiting the poor and the

down-trodden people of the state. The rich have consistently used Article 370 to ensure that no

financial legislation is introduced in the state, which would make them accountable for their

loot of the state treasury. These include the provisions dealing with Gift Tax, Urban Land

pg. 9
Article 370 of the Constitution of India

Ceiling Act, Wealth Tax, etc. This has ensured that the rich continue to grow richer and the

common masses are denied their legitimate share of the economic pie. Article 370 has also

helped create power elites and local Sultans, who wield enormous power, which they use to

trample upon the genuine demands of common people for public welfare. As no outsider can

settle in the state and own any property there, the politically well-connected people stand to

gain enormously. It is these influential people who make the rules, decide the price and

determine the buyer, since any competition from an outsider is completely ruled out.

This way, land resources are cornered by the rich and mighty, causing huge revenue losses to

the state. These vested interests have gained much financial assistance from India which they

have used to build separatist mindsets and secessionist lobbies with which they blackmail India.

To the gullible people of Kashmir, the abolition of Article 370 is projected as a catastrophic

event that will sound the death knell of Kashmiri Muslim culture, but in actual fact, this

argument is a ploy to prevent assimilation of Kashmiris into the national mainstream. That

way, these power brokers continue to expand their fiefdom, perpetuate their hold on political

and economic power and build a communal and obscurantist mindset, which in due course

serves as a breeding ground for creating a separatist mentality.

The bogey of threat to the Kashmiri identity that the abolition of Article 370 will pose is merely

a ploy to camouflage the political ambitions of the leaders. Actually these very people cause a

great damage to Kashmiri culture, as no culture can survive without the stimulus of outside

contact and opportunity to cross-fertilise. It was this mindset that has been responsible for

creating the violent communal upsurge of 1989, which finally led to the exodus of Kashmiri

Pandits.

One of the main reasons for the failure of the state administration to respond to the anguished

cries of the Kashmiri Pandits to provide them with adequate security in 199890, was that the

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Article 370 of the Constitution of India

state administration had been completely subverted from within by the radical anti-national

elements, who had infiltrated into the system over a period of time.

This infiltration had been made possible by the existence of Article 370. Within the broad

framework of the special status envisaged by Article 370, which isolated the state from rest of

India, it was far easy for secessionist elements to infiltrate into the administrative cadres of the

government.

One of the worst human tragedies the state faces is the denial of basic democratic and

citizenship rights to nearly 600,000 refugees from Pakistan who entered the state at the time of

partition or as a result of wars between India and Pakistan, thereafter. These refugees have

made the state their home for the last over six decades, yet neither they nor their children can

get citizenship rights in the state, as result of the applicability of Article 370. They can neither

vote nor fight election; they cannot get loans from the state nor seek admissions into various

professional colleges of the state.

Article 370 has also been misused by political oligarchs to perpetuate their hold on power by

preventing various democratic legislations from being applied to the state. Take the case of

anti-defection law, which is a useful provision for preventing defections. This legislation

vests the powers of deciding whether a legislator has defected or not, with the Speaker.

However, in Jammu and Kashmir, the power has been vested with a party chief, thus turning

the leader into a virtual dictator.

Article 370 has also been used to deny a fair share of economic pie to both Ladakh and Jammu

region (see chapter 18). Violent agitations that rocked Ladakh in July-September 1989 were

the result of the resentment felt by Ladakhis at being treated unfairly by Kashmiris Muslims,

who have a stranglehold on political power in the state. It is ironic that whereas, Article 370

provides all the political, economic and cultural and other safeguards to Kashmiris, the same

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Article 370 of the Constitution of India

provision is misused by Kashmiris to deny the same safeguards to people of other regions of

the state.

The citizens of Jammu and Kashmir become citizens of India automatically; whereas the

citizens of India have no such right when it comes to their claiming a similar right in the state.

Consequently, the citizens of Jammu and Kashmir can own property and settle anywhere in

India. On the other hand, Article 370 prevents any Indian from claiming any such right.

As early as 1932, Bertrand Glancy, Chairman of the Grievances Committee was compelled to

write in his report: The present definition of State Subject appears to be unduly rigid;

domiciles in a state for a thousand years cannot, according to this definition, qualify a man. It

would seem both unfair and inexpedient to deny the right to franchise to a man who has so far

identified himself with local interests as to make his domicile in the state over a consecutive

period of five years.

Dr BR Ambedkar had forewarned the country on this score in reply to Sheikh Abdullahs

demand for a special status in the Constituent Assembly of India. He had said, You want India

to defend Kashmir, give Kashmir equal rights over India, but you deny India and Indians all

rights in Kashmir. I am Law Minister of India, I cannot be a party to such betrayal of national

interests.

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Article 370 of the Constitution of India

IMPORTANCE OF ARTICLE 370

Article 370 of the constitution is the current bedrock of the constitutional relationship between

Jammu and Kashmir and the rest of India. With its abrogation being an avowed policy of the

Bharatya Janata party, the Jammu & Kashmir high courts observation that the provision has

acquired a state of permanence may cause some disquiet in the party and the government.

However, the high courts comment should be seen in the limited context in which it was made.

Its remarks that article 370 is beyond amendment or repeal or abrogation flows from an analysis

of the question whether the section had become incorporative after the state constituent

assembly framed its constitution, and the assembly itself ceased to exist. In fact, the question

whether its temporary provisions had acquired permanence was not before the court; nor was

the court hearing a challenge to validity of the article per se. It was dealing with the validity of

reservation in promotions among government employees in Jammu & Kashmir ultimately; it

struck down the provisions for quotas in promotions on the ground that clause 4A of article 16,

introduced by the constitution 77th amendment to protect reservations in promotions, was not

applicable to Jammu & Kashmir. This because presidential order making law new clause

applicable to the state. One of the features of article 370 is that a constitution amendment

becomes applicable to Jammu & Kashmir only after the president issue an order. Without the

protection of the clause, there is no scope for reservation in promotions, as the Supreme Court

had barred such quotas in INDRA SAWHNEY case.

In its implications for article 370, the high court verdict has not broken any new ground. If

anything, it is a reiteration of earlier Supreme Court ruling that article 370 continues to be

operative. It impliedly rules that the presidents power to issue orders, as has been done over

the years making several laws and provisions of the constitution applicable to Jammu &

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Article 370 of the Constitution of India

Kashmir remains untrammelled. By reiterating the core requirement that even provisions

affording constitutional protection requires the use of article 370 and orders issued under its

imprimatur, the court has reaffirmed that importance of the article and showed how abrogating

it will weaken the getting special status. Some may find the observations that article 370 are

beyond the repeal or abrogation debatable. Parliaments amending power under article 368

remains available for such measure, but it is far wiser for any dispensation to wait for a

resolution of the dispute with Pakistan over the entirety of Kashmirs territory before revisiting

the states constitutional status. Any premature action on this front may be a needless

misadventure.

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Article 370 of the Constitution of India

BUT WHAT EXACTLY IS ARTICLE 370 AND WHY IS THE ARTICLE

SO IMPORTANT TO KEEP JAMMU AND KASHMIR AS A PART OF
INDIA?

HERE ARE 10 FACTS THAT EXPLAIN WHY:

1. According to the Constitution of India, Article 370 provides temporary provisions to

the state of Jammu and Kashmir, granting it special autonomy.

2. The article says that the provisions of Article 238, which was omitted from the

Constitution in 1956 when Indian states were reorganised, shall not apply to the state

of Jammu and Kashmir.

3. Dr BR Ambedkar, the principal drafter of the Indian Constitution, had refused to draft

Article 370.

4. In 1949, the then Prime Minister Jawaharlal Nehru had directed Kashmiri leader

Sheikh Abdullah to consult Ambedkar (then law minister) to prepare the draft of a

suitable article to be included in the Constitution.

5. Article 370 was eventually drafted by Gopalaswami Ayyangar

6. Ayyangar was a minister without portfolio in the first Union Cabinet of India. He was

also a former Diwan to Maharajah Hari Singh of Jammu and Kashmir

7. Article 370 is drafted in Amendment of the Constitution section, in Part XXI, under

Temporary and Transitional Provisions.

8. The original draft explained "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

Maharaja's Proclamation dated the fifth day of March, 1948."

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Article 370 of the Constitution of India

9. On November 15, 1952, it was changed to "the Government of the State means the

person for the time being recognised by the President on the recommendation of the

Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and

Kashmir, acting on the advice of the Council of Ministers of the State for the time

being in office."

10. Under Article 370 the Indian Parliament cannot increase or reduce the borders of the

state.

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Article 370 of the Constitution of India

SHOULD ARTICLE 370 BE ABOLISHED?

- (Times Of India - 28th May 2015)

Minister of state in the PMO, Jitendra Singh, sparked the Modi government's first controversy

by declaring the Centre has started the process for repealing Article 370, which grants special

status to Jammu and Kashmir within the Indian republic. His remarks have stirred up a hornet's

nest with political parties in Jammu & Kashmir, including J&K chief minister Omar Abdullah,

vehemently oppose the move.

YES (90.0%) 246 Votes

Rudranchirakkal,

There is no point for any special status or special considerations to any state in India as all these

states and its subjects are one or the other way under the control of Union of India and are

expecting subsidies, several obligations, administrative responsibilities etc. from central

government. Gas supply, electricity generation and distribution, housing, law and order

conditions, Public distribution system, any emergency situation aroused by natural

phenomenon or created by the people. All these are under the purview of union of India which

is applicable to J&K also,then why the need of special status / weightage by article 370?

Ashish Chaudhary,

I want to stay in J&K and enjoy all the facilities as I normally do in other parts of the country.

What's wrong in that? Why can't J&K be considered to be just an another state? Why create a

hype about it? After so many years of Independence, certainly the time has come to amend the

Article 370 and giving the state the status it deserves! I'm totally with it.

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Article 370 of the Constitution of India

Ashok,

One country should have one constitution and one set of laws of the land.

Ohlayan,

Yes there is a need to amend this article 370 from its present form-those provisions which are

special for J&k can be retained while in other respect that special status be brought at par with

rest of the other states- article in its present form has become outdated historically and creating

unnecessary political controversies giving false promises of autonomy.

Vishrant Shukla

Art 370 was always designed to be an interim arrangement. Accession to India could not have

been made a decision contingent upon vague conditions. It's time the state of J&K be a state in

the true sense. This would help its alignment with the nation better and ensure prosperity

returns there.

NO (10.0%) 25 Votes

Suddhasattwa Bandyopadhyay,

Not only Kashmir alone, but also, every state in India should be allowed to write it's own

constitution as a true federation of states with their state rights just like we have in USA. And,

the governors and presidents should be directly elected by the people and the posts of Prime

Minister and Chief Minister should be abolished. The federal constitution should only be

responsible for Defence, Foreign Affairs, Internal Affairs, Finance, Foreign Trade and

Interstate Commerce, Agriculture, Communications, Human Resources Development, Health

and Transportation only.

pg. 18
Article 370 of the Constitution of India

T K S Rajan,

It was stupid to have constituted this article in the first place and even more stupid not to have

abrogated this for 60 odd years by successive governments, mostly congress. We need to first

let J&K residents realize what they are missing by having this article and how ruling junta of

the Abdullah family and others have taken advantage of this article and ruled it like their own

kingdom. Once the people realize this, abolishing this article will be a simple thing. Without

such initiatives, abolishing the article will only aggravate the problem.

Showkat,

Article 370 has been amended many times before and has remained not much effective now.

The main provisions like, Permission for the President and PM of India, Selection of local

person and Governor, provisions for State Civil Services, Nomenclature of Governor and CM

etc have been either amended or abolished. The only thing which stands good and has remained

a bone of contention is regarding purchase of land and Marriage in addition to a separate flag

for the state. Inter state marriages do happen in the valley, Provisions regarding Purchase of

land have been implemented by many other states also who offer land only on lease for certain

period. Regarding Flag, please tell, how many of you have seen the Flag of J&K and when it

is hoisted in a ceremony? Please think, what they are abolishing now.

pg. 19
Article 370 of the Constitution of India

CONCLUSION

The abrogation of article 370 of the constitution that would terminate Kashmirs special status

compared to other states in its 1st schedule of our constitution. This demand for repeal of article

370 has been repeatedly voiced by the BJP.

The Kashmir committee has explained that this demand must be abandoned as it serves no

significant Indian interest, and cause unnecessary suspicion to many in Kashmir. Besides, it is

not an unreasonable price to pay for eliminating the influence of secessionists and liquidating

their plans. But most importantly, it is this article that gives a constitutional finality to the entire

region of Jammu and Kashmir being an integral part of India.

Let me also clearly state that the repeal of article 370 is not possible by any constitutional

method. It can only be done by a constitutional coup, which even our supreme court will declare

ultra vires and void.

Article 370 provides for its own repeal not by legislation by parliament of India, but by

presidential action under clause 3 of the article, which reads under:

(3) Notwithstanding anything in the foregoing provisions of this article, the president may, by

public notifications, 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.

No such recommendation has been obtained and none is feasible now or in the foreseeable

future.

pg. 20
Article 370 of the Constitution of India

The article is result of freely negotiated contract between the people and constitutional

authority of India. It is thus a basic feature of the constitutional scheme that has evolved for the

future governance of the state, and is beyond any power of modification or repeal within the

kesavananda bharati doctrine evolved by our own supreme court, that anything which is

conflicts with seeks to alter this basic structure of the constitution, is ultra vires. The amending

power under article 368 cannot reach it.

We cannot compel our president to exercise a power which does not rest in him. We will only

earn the bad reputation of being constitutional terrorists without any significant gain. Even on

the express words of the proviso to clause 3 quoted above, such a power is completely negative.

pg. 21