Article 370: J&K’s special status challenged

Article 370 a fraud on the statute, says petition.

September 23, 2018 10:29 pm | Updated September 24, 2018 12:04 am IST - NEW DELHI

The Supreme Court of India, at New Delhi, the Capital of India.        Photo: Rajeev Bhatt , September 19, 2003.

The Supreme Court of India, at New Delhi, the Capital of India. Photo: Rajeev Bhatt , September 19, 2003.

A petition has been filed in the Supreme Court challenging the continued existence of Article 370, which gives a temporary autonomous status to the State of Jammu and Kashmir and restricts the power of Parliament to make laws for the State.

The petition especially challenges a particular proviso in Article 370 which mandates that the President should first get the permission of the ‘Constituent Assembly of the State of Jammu and Kashmir’ before declaring the Article null and void.

The PIL plea, filed by Supreme Court advocate Ashwini Kumar Upadhyay, contends that the restriction on the President continues to survive despite the fact that the Constituent Assembly of J&K dissolved on January 26, 1957. The petition contends that the proviso of Article 370(3) has lapsed with the dissolution of the J&K Constituent Assembly.

He says this proviso acts as a roadblock to the wide Presidential powers to end the temporary special status which was accorded to J&K at the time of its accession to the Union after Independence. “It virtually erodes the wide powers of the President of India,” the petition says.

It says the proviso amounts to an arbitrary restriction and an “abridgement” of the powers of the President under the principal clause of Article 370(3).

“It is a direct affront to the amplitude of powers of President/Executive as available under the Constitution of India. A backhanded sleight of denuding powers of the President...” the petition says.

The petition says continuity of Article 370 is a “fraud on the Constitution” and prevents the realisation of the gradual and appropriate integration of the erstwhile kingdom of Jammu and Kashmir with the Union of India.

“This cherished objective of integration shall be dealt a death blow in the circumstance... that the special provision of Article 370 shall continue in perpetuity, which was never the intention...,” it says.

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