On The Constitutional Validity Of Abrogating Article 370

General information on the day when Article 370 except clause (1) became nonfunctional from Constitutional and legal point of view was:

The opposition is trying to portray that this move of the government will not stand the test of judicial review. Under Article 13 of our Constitution, there is a provision of judicial review to check legislative overreach. But I strongly believe that the abrogation of Article 370 except clause (1) will stand the test of judicial review. Article 370 is kept in part 21 of the constitution which contains temporary, transitional and special provisions.

Amit Shah
Home Minister Amit Shah introducing the Kashmir Reorganisation Act 2019 in the parliament.

Let’s read the first sentence of Article 370, it says, “Temporary provisions with respect to the state of Jammu and Kashmir”, so it clearly says, it’s temporary in nature. Clause (3) of Article 370 states, “Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to 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 President issues such a notification.”

Now, some may raise the issue of how the President issued notification without the recommendation of the Constituent Assembly. The fact is, the Constituent Assembly was not in function in Jammu and Kashmir, i.e., under 356, there was President’s rule, so as per Article 357, the Parliament had the authority over the state’s legislature. Hence, the Parliament invoked Article 357 in this case.

As per Article 368, the parliament has the power to bring in an amendment, but it can’t amend the basic structure of the constitution. However, Article 370 is not a basic structure of the constitution, even Supreme Court in its latest judgement stated that Article 370 is not a basic structure of the constitution, hence the Parliament has the power to amend it.

Moreover, as per Article 248, Parliament can legislate laws with respect to the state list in the national interest. As per Article 254, if there is a conflict between laws made by state and union, the will of the Parliament prevails.

We should also know that Article 370 was not brought in by the Parliament or constituent assembly, it was rather brought by a simple Presidential order. Similarly, it was revoked by a Presidential order followed by parliamentary procedures.

This is the Constitutional aspect of the abrogation of Article 370 except clause (1).

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