PIL IN SUPREME COURT AGAINST ARTICLE 370 GRANTING SPECIAL STATUS TO JAMMU AND KASHMIR
The Supreme Court on Monday dated 18.02.2019 said that it would look into the plea seeking urgent hearing of a PIL challenging the constitutional validity of Article 370 of the Constitution, which grants special status to Jammu and Kashmir and limits Parliament’s power to make laws for the state.
A bench headed by Chief Justice Ranjan Gogoi took note of the submission of lawyer and BJP leader Ashwini Upadhyay that his plea was of “extreme national importance” and needed to be listed for urgent hearing.
“Give the mentioning memo to the Registrar. We will see it,” the bench, said which comprised of Justice Sanjiv Khanna.
Upadhyay, in his plea which was filed in September last year, had contended that the special provision was “temporary” in nature at the time of framing of the Constitution and Article 370(3) lapsed with the dissolution of the Jammu and Kashmir Constituent Assembly on January 26, 1957.
The plea also seeks a declaration from the apex court that the separate Constitution of Jammu and Kashmir was “arbitrary” and “unconstitutional” on various grounds, including that it was against the “supremacy of the Constitution of India and contrary to dictum of ‘One Nation, One Constitution, One National Anthem and One National Flag'”.
“The Constitution of Jammu and Kashmir is invalid mainly for the reason that the same has not yet got the assent of the President, which is mandatory as per provisions of the Constitution of India,” the plea, which may come up for hearing next week, said.
Article 370 is a “temporary provision” with respect to Jammu and Kashmir and restricts the applicability of various provisions of the Constitution by”curtailing” the power of Parliament to make laws on subjects which fall under the Union and Concurrent lists, the court said.
Under the Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, Article 370, is a temporary provision. It specifies that except for Defence, Foreign Affairs, Finance and Communications the Indian Parliament needs the State Government’s concurrence for applying all other laws. Thus the state’s residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.
HISTORICAL BACKGROUND
Immediately after independence, a major column of armed men from Pakistan had invaded Kashmir and they were nearly successful in capturing Srinagar. Confronted with the chances of losing Kashmir to Pakistan, Maharaja Hari Singh requested help from India. Immediately, Patel’s aid V P Menon arrived in Srinagar and told the maharaja that India could take action only if Kashmir acceded to India. It is widely believed that Maharaja wanted to keep is independence but reluctantly acceded to India due to the grave situation created by the Pakistani invaders. Thus, on October 26, 1947, Maharaja Hari Singh signed the Instrument of Accession. However the accession was partly provisional.
By 1949, Sheikh Abdullah and Maharaja Harisingh decided that Kashmir should remain united with India with maximum possible autonomy. India granted a special status to Kashmir in article 306A of the draft constitution. This special status was given as per clause 7 of the Instrument of Accession. At that time, Hasrat Mohani had objected the special status. But he also expressed hope that in due course Kashmir would become ripe for same kind of integration as similar to other states. The Article 306A was enshrined as Article 370 in the constitution as a “temporary provision”.
CAN PARLIAMENT AMEND CONSTITUTION?
The Government can amend the Constitution to facilitate the abrogation of Article 370. But, it is not going to be an easy job. According to Lok Sabha legislation rules Money Bills and Bills seeking to amend the Constitution can’t be passed by calling a joint session of the Parliament.
Joint sitting rules says, “Article 108(1) of the Constitution provides that when a Bill (other than a Money Bill or a Bill seeking to amend the Constitution) passed by one House is rejected by the other House or the Houses have finally disagreed as to the amendments made in the Bill or more than six months lapse from the date of the receipt of the Bill by the other House without the Bill being passed by it, the President may, unless the Bill has lapsed by reason of dissolution of Lok Sabha, notify to the Houses by message, if they are sitting, or by public notification, if they are not sitting, his intention to summon them to meet in a Joint Sitting. The President has made the Houses of Parliament (Joint Sittings and Communications) Rules in terms of clause (3) of Article 118 of the Constitution to regulate the procedure with respect to Joint Sitting of Houses. So far, there have been three occasions when Bills were considered and passed in a Joint Sitting of the Houses of Parliament”.
The total strength of the Lok Sabha is 543 members and the ruling BJP led NDA has 336 MPs in the Lok Sabha. The two-third majority requires over 362 MPs votes in favour of the amendment bill. It can take the help of other regional parties, if it really wants to amend the Constitution. But, it is not going to be an easy job.
In Rajya Sabha the ruling NDA has less than 80 MPs. The BJP alone has just 45 MPs. The total strength of the Rajya Sabha is 250. However, the purpose of the BJP would be served, even if it tables the bill seeking abrogation of the Article 370. It can later claim that it tried to fulfill its poll promise.
VIEWS OF CONSTITUTIONAL EXPERTS
Many legal experts are of the view that abrogating the provision would put the accession of the state to India in jeopardy. Because the nature of the accession of J&K into the Union of India is totally different from the merger of all other small and big states. More over there is a debate over whether Article 370 is a part of basic structure of the Constitution and whether it can be amended.
According to former Union Law minister Shanti Bhushan, under Article 368 of the Constitution, the Parliament has the power to amend the Constitution. But in view of the Supreme Court’s ruling in the Kesavananda Bharati case, Parliament can’t amend the basic structure of the Constitution. According to him obtaining the opinion of the Supreme Court is a must before going ahead with the abrogation of Article 370. There are doubts over whether Article 370 is a part of the basic structure of the Constitution or not.
To Sum Up The repealing of article 370 of the Constitution there has been a poll promise of the BJP. The BJP has been opposing the special status for Jammu & Kashmir for a long time. It had earlier claimed that it could not repeal the Article 370 during Vajpayee government due to lack of majority. The BJP has been opposing it’s since its earlier avatar Jan Sangh days.
The issues like Article 370, Ram Mandir, blend of religion and politics, building sculptures are only to influence vote bank politics.
By-
Abhinav Jassal
Student reporter, INBA.