Article 370, what should be the government's approach to it?

First we need to know the History ,The provision was drafted by Sheikh Abdullah in 1947 the then constitution was not yet drafted, who had by then been appointed prime minister of Jammu & Kashmir by Maharaja Hari Singh and JawaharLal Nehru. Article 370 of the Indian Constitution is a 'temporary provision' which grants special autonomous status to Jammu & Kashmir.

Under Part XXI of the Constitution of India, which deals with "Temporary, Transitional and Special provisions", the state of Jammu & Kashmir has been accorded special status under Article 370. . Sheikh Abdullah had argued that Article 370 should not be placed under temporary provisions of the Constitution. He wanted 'iron clad autonomy' for the state, which Centre didn't comply with. All the provisions of the Constitution which are applicable to other states are not applicable to J&K. For example, till 1965, J&K had a Sadr-e-Riyasat for governor and prime minister in place of chief minister.

The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it. So, as of now, article 370 doesn’t form part of basic structure.

Now, can it be brought under basic structure- This depends completely on what Judiciary interprets about the provisions of article and procedure followed to repeal it. The following elements of basic structures must be taken care while amending the respective part-

1. Supremacy of constitution- Art 370(3) says the proposal should come from J & K assembly. So, no unilateral steps.

2. Principle of reasonableness- The reasons for repealing should have a strong base.

3. Principle of equality- Why only repeals this when there are other states which have special status.

4. May be freedom and dignity of individual may also be roped in into this issue if any hasty decision is taken by parliament.

Any careless or hasty decision may be successfully encountered using these provisions of basic structure and other provisions of Instrument of accession like plebiscite which are not answered satisfactorily.

There is very less scope of direct inclusion of art 370 in basic structure because basic structure evolved when Legislature was moving aggressive amendments which may affect the nation adversely and also against spirit of constitutional principles. This article specifically links to a state and itself claims that it is temporary. Also, as has been inflated the issue is not of the scale which may be disintegrating India. Also, the state has become more reasonable. Though used for political reasons, Supreme Court may not entertain such petitions to include article in basic structure. Rest depends on judicial interpretation.

By SK. Amer Arafath