Article-370
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Hearing is going on in the Supreme Court of the country regarding the removal of Article-370 in Jammu and Kashmir. before a five-judge constitution bench Petitioner National Conference leader Mohd. Akbar Lone’s counsel Kapil Sibal argued whether the government can change the status of a state without consulting the people. If they have the majority, it doesn’t mean they can do whatever they want. Where is the voice of the people of Jammu and Kashmir? Where is the voice of representative government? Five years passed. They don’t take consent, don’t even take their opinion. where do we stand Constitution is a political document but you cannot use it for political misuse and manipulation. We hope the court will not remain silent as this is a historic moment, Sibal said. The relationship between the government and Jammu and Kashmir is fully federal and not quasi-federal like other states. He accused the central government of cheating the constitution by bypassing the precondition of obtaining the recommendation of the J&K Constituent Assembly (now defunct) before making changes in Article 370(3), declaring Article 370 inoperative. Sibal also said that the proceedings of the Constituent Assembly were necessary to determine whether Article 370 was a permanent measure. Sibal argued that the revocation was a political decision and the opinion of the people of Jammu and Kashmir should have been sought.
Regarding the above argument of Kapil Sibal, a five-member bench of Chief Justice Justice DY Chandrachud told Sibal, you cannot imagine a situation like ‘Brexit’. This is a political decision, which was taken by the then government. But there is no question of a plebiscite within a constitution like ours. During the hearing, Sibal cited the example of Brexit, where a referendum was held even though there was no constitutional provision demanding it. He said, before breaking any relationship, people’s opinion must be taken, because people are at the center of the decision. The bench then said, as long as there is democracy, the will of the people should be expressed through the established institutions. The bench asked Sibal, then the question is whether the Constitution gives this right or not. Sibal asserted that the abrogation was a political act and whether Article 370 is a temporary provision or not is not an issue and the opinion of the people of Jammu and Kashmir should have been sought.
Kapil Sibal says that the Parliament does not have the power to remove Article-370 without the Constituent Assembly of Jammu and Kashmir. According to Sibal, the session of the original assembly was over in 1957 itself, only it had the power to modify or remove Article 370. From this point of view, the autonomous form of Jammu and Kashmir had become a permanent status.
Considering Article 370 as the root of the problem, Jagmohan, former Governor of Jammu and Kashmir, has written in his book Unrested Kashmir: Challenges and Solutions, ‘One of the strong roots of separatism and separatism in Kashmir is Article 370 of the Indian Constitution, Provides special status to the state of Kashmir. The issue not only has far-reaching consequences of historical, constitutional, political, social and economic importance, but also has implications on a psychological and emotional level. There was strong protest against this at the national level. The issue of its retention and its removal were equally voiced. But in this, the original aspect got lost somewhere. Which is related to its misuse by selfish elements. Over the years, Article 370 has become an instrument of exploitation at the hands of vested interests in the bureaucracy, businessmen, judiciary and lawyers, including politicians in power. It is caught in a vortex trap. This gives an opportunity to separatist forces to flourish and it upholds Article 370 and strengthens it.
Taking a constitutional point of view, Jagmohan writes that the Indian Parliament has the right to remove Article-370. Jammu and Kashmir is the 15th state of India in Schedule-1 of the Constitution and Article-1 of the Constitution is fully applicable to it. On the other hand, the nature of Article 370 is transformative. The title of Part-21 of the Constitution is as follows – “Temporary, Transitional and Special Provisions.” Therefore, at the time when Article 370 was made, it was understood that it would be for a short period and it would be functional only during the period of transition. Will remain Since the State Constituent Assembly is no longer in existence, there will be no need for its consultation under Article 370. There is no point in consulting a dissolved organization or non-existent organization. Therefore, under Article 368, the Indian Parliament can amend the constitution. The state of Jammu and Kashmir also has representatives in the Indian Parliament. After this the provision of seeking recommendation from the State Constituent Assembly can be repealed. After removing this provision, the President can make a mandatory declaration and Article 370 can be removed. Whenever one provision of the constitution is inconsistent with another provision, the more fundamental provision applies. While interpreting the Constitution, the courts have to take into account the changed circumstances and the overall national interest for which the Constitution was framed.
In the Indian democratic system, the Parliament is supreme and it can take decisions while staying within the ambit of the constitution for the interest of the country. Article 370 was adopted by the Nehru government and the Modi government removed it in a constitutional way and in the interest of the country by getting it passed by the Parliament, so what is unfair about it. Looking at the time and circumstances, various governments have amended the constitution more than 100 times in the past as well. Kapil Sibal is an intellectual and a senior lawyer, but without understanding the sentiment of the nation, he is giving arguments only for the sake of arguments in this matter. The matter is in the court, now everyone’s eyes are fixed on what decision the court takes.
– Irwin Khanna (Chief Editor, Dainik Uttam Hindu)
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