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Kovid Kumar asked: What are the reason our policy maker not thinking to abolish article 370?

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  • Arpita Anant replies: First, an important clarification, a constitutional provision cannot be abolished, it has to be amended or repealed, for which there is a procedure to be followed.

    The complexity relating to Article 370 requires greater appreciation. When instituted, Article 370 gave a Constitutional recognition to the letter and spirit of the Instrument of Accession, which was mainly regarding autonomy. Thus, Article 370 (1) (2) (3) governs the relationship between the Centre and the State of Jammu and Kashmir. Simplistically, the first clause of the Article relates to power sharing between the Centre and the State, while the second and third clauses pertain to the role of the state’s Constituent Assembly in accepting the applicability of the Indian Constitution. The exceptions and modifications with regard to applicability of the Indian Constitution to the State are further detailed in the Constitution (Application to Jammu and Kashmir) Order 1954.

    Since the adoption of the Constitution of Jammu and Kashmir in 1956 by the Constituent Assembly of the State, which vide Article 3 clearly lays down that it is an integral part of India, the latter two clauses of the Article could have been repealed, as also the part regarding it being a “temporary, transitional and special provision” under Part XXI of the Indian Constitution. This was not done. Then over the years, several changes and amendments were made to the Constitutional Order of 1954, to clearly define the relationship between Centre and the State. These are also an integral part of Article 370 and are spelt out in Appendix I and II of the Constitution of India. It is argued that several of these amendments have diluted the autonomy of the State.

    So at the present juncture, a full repeal of the Article may not be possible. An amendment to reflect the actual situation on the ground is desirable. However, even this requires political consensus, which appears elusive.