'People’s consent crucial to Article 370'

Experts say repealing the Article without people’s consent may cause trouble

By :  sanjay kaw
Update: 2014-05-29 06:24 GMT
J&K CM Omar Abdullah addressing a press conference at his residence in Srinagar (Photo: PTI)

New Delhi: It appears that Article 370 of the Constitution can be abrogated only if a new Constituent Assembly of Jammu and Kashmir is convened, and is willing to recommend its revocation.
Many constitutional experts warn that any move to repeal this special provision of the Constitution without involving the people of the state could lead to an “explosive situation” in the subcontinent.

While some do note that an amendment can be made in the Constitution to do away with the special provision altogether, that too would only be possible after all stakeholders approve.
Article 370 specifies that except for defence, foreign affairs, communications and ancillary matters (that are specified in the Instrument of Accession), Parliament must get the state government’s concurrence for all other laws to be applied to Jammu and Kashmir.

The people of Kashmir have been living under a separate set of laws, including those related to citizenship, ownership of property and fundamental rights, compared to other citizens of India.
Constitutional expert Rajeev Dhawan said Article 370 is of significant importance in Centre-State ties. “It represents India’s asymmetrical federalism. The state acceded to India under special circumstances. But it is a part of India subject to certain limitations.”

Mr Dhawan said special provisions also ap-ply to Sikkim, Andhra Pradesh, Maharashtra and several other states. “This compulsion to remove Article 370 shows legal illiteracy. To remove this article will be a gross breach of faith towards the people of the state.”

Similar protections for special status exist in tribal areas, including those in the Andaman and Nicobar , Nagaland and Himachal Pradesh. But it is only for J&K that the accession of the state is a matter of dispute between India and Pakistan, which is still on the agenda of the UNSC.

Constitutional expert Subhash Kashyap said,  “There are many provisions that accord special status to Uttarakhand, Nagaland and other states. Any changes in these provisions can be made only after consultations with the people of the states,” he said.

Meanwhile, Jammu and Kashmir Chief Minister Omar Abdullah said “talk of revocation of Article 370 is not just ill-informed, it’s irresponsible”. He added that Article 370 was the “only constitutional link” between the state and the rest of the country.

PDP chief Mehbooba Mufti also criticised Mr Singh’s remarks. Omar Abdullah tweeted his reaction to Mr Jitendra Singh’s statement.

“So the new MoS PMO says process/discussions to revoke Art 370 have started. Wow, that was a quick beginning. Not sure who is talking,” Mr Abdullah tweeted.

“Mark my words and save this tweet — long after Modi Govt is a distant memory either J&K won’t be part of India or Article 370 will still exist,” he added.

Mehbooba Mufti of the People’s Democratic Party also criticised Mr Singh’s comments, saying the Prime Minister should keep a check on what his ministers were saying on sensitive issues.
“If you try to fiddle with it, that means you will have to re-negotiate a new relationship with the people of Jammu and Kashmir. You will have to ask the people about their decision then. That means you are giving a choice to the people of J&K that they have to re-negotiate about their future. You are giving them a choice, a chance. Is BJP ready to do that? I do not think so,” she said.

Meanwhile, Congress cautioned against any “trigger happy reactions”. “Art.370 (3) read with Art 370 (2) clarifies 370 cannot be repealed without consent of constituent assembly which does not exist. No brainer,” Congress leader Manish Tewari tweeted.

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