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Article 370

Can Article 370 be diluted or repealed? Here is a brief explanation

1) Article 370 is a ‘Temporary Provision’ in the constitution of India. Any debate on its dilution or repeal, should be initiated by quoting article 35A of the Indian constitution which one cannot find in the Constitution available even on the website of the Govt. of India. You won’t find it in many of the books on Constitution as well.

2) Article 35A has been added to the Indian constitution through an executive order thereby jeopardising Constitutionalism. This Presidential Order of 1954 supposedly passed in terms of clause (1) of Article 370 has in fact introduced a new Article in Constitution of India i.e. Article 35A. It violates the ‘Basic Structure of constitution’. Any amendment of such nature should have been effected under Article 368 of the Constitution, by the Parliament.

3) Once Article 35A is repealed, Article 370 will be left redundant and Otiose as it is Article 35A, which contains all the discriminatory provisions. Let us see a few instances of it :

a) Article 35A of the Constitution of India executively inserted pursuant to Article 370 (1) (d) excludes the provision of ‘this part’ of the Constitution. ‘This part’ of the Constitution refers to ‘Part III.’ Part III means the chapter on Fundamental Rights.

b) The pre 2002 position in relation to daughters who marry outside the State that they would lose their right of inheritance is based on the authority to discriminate against citizens of India, between citizens of India and State subjects which Article 35A confers.

4) If Article 35A can be inserted through an executive order, by applying the same logic, it can also be repealed by the same executive order. This needs a decision maker in power and this will reduce Article 370 to a dead horse.

5) An interesting question arises now – Recommendation of the Constituent Assembly is required by the President to notify cessation of Article 370 or not? Now, we need to appreciate the fact that no consent, even if provided, can be insisted from a non-existent body. The recommendations of the Constituent Assembly in this regard could have only arisen only during the currency and lifetime of Constituent Assembly. The Constituent Assembly has ceased to exist and hence no such recommendations are required by the President of India before notifying the cessation or taking back of Article 370 from the Constitution of India.

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