ABROGATION OF ARTICLE 370 - AN ALTERNATIVE APPROACH?

 

I have listened to various debates and discussions on Article 370 and feel that it is still an important area of discussion. In this article, I would like to portray a different approach which I feel is quite apt in discussing even now.

By now, we are all aware of how the State of Jammu and Kashmir was bifurcated into 3 Union Territories and how Article 370 was thereby abrogated. Article 370 was a special provision in the Constitution, which was meant to be a temporary provision but was in existence for a temporary period of 70 years. Finally, the Government in 2019 through a Presidential Order amended Article 370 and also brought about an amendment through the Constitution ( One Hundred and Third Amendment) Act, 2019 by which the Legislative Assembly of the State of Jammu and Kashmir was suspended. The Government also brought about the Jammu and Kashmir Reorganisation Act, 2019 by which the State of Jammu and Kashmir was bifurcated into 3 Union Territories: Jammu, Kashmir and Ladhak.

I accept the reasoning and justifications given by the Government in scrapping Article 370. But I always wondered whether there could be another route through which Article 370 could have been amended? 

The basis for my thinking for an alternative way was embedded when I was doing some research for a moot court competition. I read about the Armed Forces (Jammu and Kashmir) Special Powers of 1990. It is quite pertinent to note that from 1990 till present, the AFSPA is still applicable. 

The region of Jammu and Kashmir has been a ground for militant activities, terrorism and other anti-national activities. In order to maintain internal peace, the Central Government through the powers mentioned under Section 3(b) declared the entire territory of Jammu & Kashmir as a disturbed area. 

As per the Instrument of Accession signed by King Hari Singh and Jawaharlal Nehru, the Central Government of India have the power to make changes in respect of Defence, Communication and External Affairs.  So, as per this instrument, the Government of India has no Legislative or Executive power over Jammu and Kashmir except for the 3 areas. 

As per Article 370(3) of the Indian Constitution, the President may, by public notification, declare that this article shall cease to be operative provided that the recommendation of the Legislative Assembly of the State shall be necessary before the President issues such a notification.

Therefore, the President can act only upon the recommendation of the Legislative Assembly of the State. Now, if the Legislative Assembly of the State could be dissolved, then the President will have the power to directly issue the notification abrogating Article 370. Could there be any possible way through which this could be done?

India is a nation-state. The nation-state has particular duties that it is bound to do to safeguard its citizens. We all know that the borders of Jammu and Kashmir suffer serious attacks from both the Pakistani army and terrorist groups. The territory of Jammu and Kashmir has suffered from the past 70 years due to continuous attacks and also considering the fact that the AFSPA has been in force in Jammu and Kashmir from 1990  there is no internal harmony and the common people are getting affected.

Can the President invoking his powers under Article 352 declare an Emergency in the State of Jammu and Kashmir and take over the entire executive and legislative control so as to restore internal peace and harmony and during the Presidential rule can he not dissolve the Legislative Assembly

When the Legislative Assembly is no longer present, doesn't the proviso to Article 370(3) become invalid by the Doctrine of Frustration? 

This ideology may sound absurd and ambiguous and quite frankly politically incorrect, but it is perfectly valid as per the provisions of the Constitution. Debates and discussion can be raised and numerous inferences can be drawn from the Emergency issued during the Indira Gandhi Government. 

Do share your opinion of the points I have highlighted.

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