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Is it possible to delete Article 370? All you need to know

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Wahid Bhat | Srinagar

Article 370 of the Indian constitution is an article that gives autonomous status to the state of Jammu and Kashmir. The article is drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether. After the J&K Constituent Assembly later created the state’s constitution and dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution”.

Article 370 accords special status to the state of Jammu and Kashmir. As per this article, all the different provisions of the constitution that are applicable to other states of India are not to be extended to Jammu and Kashmir.

How and when Article 370 came about?
The provision of Article 370 was drafted in the year 1947 by Sheikh Abdullah, who was appointed as the Prime Minister of Jammu and Kashmir together by Jawaharlal Nehru and Maharaja Hari Singh. During a discussion in the Parliament, Sheikh Abdullah argued that Article 370 must never be kept under the temporary provisions of the Constitution. He insisted that Jammu and Kashmir must be granted what he described as ‘iron clad autonomy’. However, the center did not comply with this demand.

Background
The Constituent Assembly of Jammu and Kashmir was elected in 1951 and convened on 31 October 1951. The Basic Principles committee of the Constituent Assembly recommended the abolition of the monarchy, which was unanimously approved by the Assembly on 12 June 1952. In the same month, the Hindu-dominated Jammu Praja Parishad submitted a memorandum to the President of India demanding the full application of the Indian Constitution to the State. The Government of India summoned a delegation from Jammu and Kashmir in Delhi for discussions on the relations between the Centre and the State. After discussions, the 1952 Delhi Agreement was reached.

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The State’s prime minister Sheikh Abdullah was slow to implement the provisions of the Delhi Agreement. However, in August 1952, the State Constituent Assembly adopted a resolution abolishing the monarchy and replacing the position by an elected Head of State (called Sadar-i-Riyasat). Despite reservations on this piecemeal approach to adopting provisions, the Central Government acquiesced, leading to the Presidential Order of 1952. The Legislative Assembly elected Karan Singh, who was already acting as the Prince Regent, as the new Sadar-i-Riyasat.

Calls for abrogation
In 2014, as part of Bharatiya Janata Party manifesto for the 2014 general election, the party pledged to integrate the state of Jammu and Kashmir into the Union of India. After winning the elections, attempts were made by the party along with its parent organisation, the Rashtriya Swayamsevak Sangh (RSS), for the abrogation of Article 370.

Former prince regent and Congress leader Karan Singh opined that an integral review of Article 370 was overdue and, it need to be worked on jointly with the State of Jammu and Kashmir.

However, in October 2015, the High Court of Jammu and Kashmir has ruled that the Article 370 cannot be “abrogated, repealed or even amended.” It explained that the clause (3) of the Article conferred power to the State’s Constituent Assembly to recommend to the President on the matter of the repeal of the Article.

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Since the Constituent Assembly did not make such a recommendation before its dissolution in 1957, the Article 370 has taken on the features of a “permanent provision” despite being titled a temporary provision in the Constitution. On 3 April 2018, the Supreme Court of India gave a similar opinion declaring that the Article 370 has acquired a permanent status. It stated that, since the State Constituent Assembly has ceased to exist, the President of India would not be able to fulfil the mandatory provisions required for its abrogation.

Is it possible to delete Article 370?
Article 370 permits deletion through a presidential order. Such an order must be however preceded by the concurrence of the constituent assembly of Jammu and Kashmir. One view says that this article cannot be deleted since such an assembly was dissolved in 1957. Another view says that it can be deleted if the state assembly concedes to deleting it.