Article 370: How Can It Be Abrogated?

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Lok Sabha elections are underway in the nook and cranny of India. The incumbent BJP on one side and the Grand Old Party, Congress on other. The war of words and the uproar over critical security matters have highly charged the atmosphere. It’s to be noted that BJP is once again banking on deeply embedded conservative stance of national security thanks to Pulwama attacker who provided that opportunity. Coming down to Manifesto issued by BJP, the abrogation of Article 370 and 35-A granting special constitutional status to Jammu and Kashmir as agreed in Instrument of Accession is its top poll plank.  But Article 370 is nothing but status agreed to in Instrument of Accession with India. 

It obliges Centre to refrain from legislation except Foreign Affairs, Defence and Communications. It therefore ensured the internal autonomy for state on the premises of incomplete merging agreement with Indian union. Therefore the legislative and executive spheres were left void for state assembly with separate President and Prime Minister which was later renamed by an amendment. If one goes by the mood in India the abrogation of these constitutional provisions by Supreme Court in response to various petitions filed in this regard is on cards. And the momentum with which BJP is charging atmosphere with a promise of abrogation of Kashmir’s unique status after returning to power has only added to unease in the state. Apart from this challenge to Article 35-A giving exclusive powers to State Legislative Assembly to define the Permanent Residents of State and grant them the required benefits in scholarship, employment, immovable property and other public aid and welfare in the state. The challenge on behalf of its induction without formal amendment irrespective of clause (I) of Article 370 entrusting powers to make exceptions and modifications in respect of J&K is also a bone of contention. It’s the exception and exceptions can’t be weighed against arguments grounded in formal articles of constitution.

Just as President’s Rule is exception which brings state completely understand central control without formal amendments. The state of J&K enjoys exception grounded in historical facts not the relationship of Union with other states and other provisions governing them. Now the cloud hanging over the possible modification or the abrogation of special status has led us into uncertainty. While Amit Shah (BJP President) says abrogation of this has always been on the agenda of Sangh Parrivar which got delayed due its alliance with the PDP question remains if at all these articles can be abrogated? Is Article 370 amendable? Is the Instrument of Accession alive with reference to Article 370? If abrogated, can it solve the long standing political dispute?   

Shahid Majeed Mir 

mirshahid363@gmail.com

Kupwara 


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