Posted in Politics

BJP Lies – The Impossibility of Removal of Article 370 & 35A

Jammu and Kashmir is a state with special status is India, to the extent that every law in India is passed with this note in the very beginning, ” It extends to the whole of India except the State of Jammu and Kashmir.” This is because Parliament of India and Government of India does not have suzerainty over the state except in matters as specified in the Instrument of Accession (actual available in high resolution here).

Why Article 370 can not be removed: In April 2018, Supreme Court of India said that Article 370 is no more a temporary provision, but it had acquired a permanent status because the constituent assembly had ceased to exist and President would not be able to fulfill the mandatory provision of getting recommendation from the constituent assembly for its abrogation. Here is the report and this is what the Supreme Court was referring to Article 370 itself,

Article 370 (3) Notwithstanding anything in the foregoing provisions of this  article, the President may, by public notification, 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.

How Article 370 Prohibits Change in Indian Constitution Regarding Matters Related to J&K: The Article 370 basically says that the Parliament or President is not allowed to make any amendments to constitution relating to J&K without permission of the State itself …

Article 370 (1) (b) The power of Parliament to make laws for the said state shall be limited to— 
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

How Constitution of J&K Prohibits Indian Constitution to make Changes in it: The Constitution of J&K was adopted on 17 November 1956, and came into effect on 26 January 1957. And in the Constitution of J&K Article 147 provides provisions for amendment of the Constitution of J&K

Article 147: Provided further that no Bill or amendment seeking to make any change in- 
(a) this section; or
(b) the provisions of sections 3 and 5 ; or
(c) the provisions of the Constitution of India as applicable, in relation to the State, shall be introduced or moved in either House of the Legislature.

The above proviso means that nothing in the Indian Constitution can be changed or applied to J&K except that existed at that time. Basically any amendment in the Constitution of India is not applicable to J&K unless its own state legislature approves of it, hence all laws in India are passed with, “It extends to the whole of India except the State of Jammu and Kashmir.” because the Parliament of India does not have power over J&K.

Complimentary Constitutions: Looking at the two constitutions, they are complimentary to each other, they both agree that nothing related to J&K can be changed unless the state legislature approves it. Although the case is still in the Supreme Court, there is a statement from the court itself which says that Article 370 can’t be removed, which essentially means that Parliament or Court will still need State Government Legislature to approve any law that can be passed.

So seriously, BJP can do any antics it wants, go to Supreme Court to remove it or anything else, but nothing is going to change. They are trying to fool people by saying that they can change…. even their own Ram Jethmalani in Nov 2014 said that he believes that Article 370 is in the basic structure of the constitution, and that it can not be changed or ameneded.

Although I am not a lawyer, but the above has been written after reading through and understanding the constitutional point from articles by various lawyers and judges.


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