Home Minister Amit Shah addressed the upper house of the parliament today at 11 am to end the circulating rumours and anxiety of the citizens in the country, pertaining to the state of Jammu and Kashmir. In a remarkable and unprecedented move, Amit Shah introduced a constitutional amendment bill in the parliament, aiming to remove the article 370 of the constitution.
Earlier today, a cabinet security meeting and a full cabinet meeting had taken place at the Prime Minister’s residence today in which the matter was deliberated over.
Article 370 had increasingly become the bone of contention between the state of J&K and the rest of the country. The article had paved way for the amendment of the constitution which has given rise to article 35A, giving the state of J&K special privileges and discriminating against the rest of the citizens. During the constituent assembly debates, article 370 was intended to be incorporated as a temporary article, as is visible from the text of the article which clearly states, “Temporary provisions with respect to the State of Jammu and Kashmir”. In order to remove the article, the president could declare a public notification to such effect after the recommendation of the Constituent Assembly of the State. Since the Constituent Assembly dissolved itself in 1957, without recommending the removal of the article, it seems to have become a permanent entity in the constitution, as ratified by the Supreme Court in 2018.
However, the article’s clause does not stop the power of the parliament to repeal or amend any provision of the constitution. According to article 368 of the constitution, the parliament has the power to amend any article in constitution by way of addition, repealing or varying any provision. In order to curb this authority, the Supreme Court under the landmark judgement of Kesavananda Bharati vs. State of Kerala had declared that the parliament can amend any article in the constitution, as long as it does not alter the “basic structure” of the constitution and if at all that happens, the Supreme Court has the right to squash the amendment. In layman’s terms, the preamble of the constitution is regarded as the part from where the “basic structure” attributes of the constitution can be drawn. In this regard, it must be noted that an article in the constitution (A-370), meant as a temporary provision to guide over the troubled waters during accession, intended to be removed later when Jammu and Kashmir became fully integrated with the country; is by no definition part of the “basic structure” of the constitution. Moreover, article 368’s text reads as, “Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.” Since a non-obstante clause prevails over any other clause in cases of inconsistency, the amendment powers of the parliament prevents reliance on any other clause to the contrary. The fifth and final sub clause of the article reads as, “For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.”
Thus, article 370 can be repealed by a majority in the parliament.
Being a political and legal issue, governments had shied away from touching the article. However, the fact remains that the article can be removed following the normal parliamentary procedure, which is what Amit Shah is going to pave way for.