August 05, 2019

Central Government Uses Section 3 Of Article 370 Itself To Make That Article Inoperative In Jammu & Kashmir State

[ By Bobby Anthony ]


Union Home Minister Amit Shah moved a resolution in the Rajya Sabha to make Article 370 practically inoperative in Jammu and Kashmir, by ironically invoking a provision of that very same law.

Incidentally, Section 3 of Article 370 empowers the President to declare the special status granted to Jammu and Kashmir under that Article inoperative anytime.

According to Article 370(3), “Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify”.

Therefore, instead of scrapping Article 370 altogether, the government simply used the power given by Section 3 of the same very same Article to the President to make that provision ineffective across Jammu & Kashmir.

Had it not been for this deft maneuver, scrapping of Article 370 would have required a constitutional amendment under Article 368. By simply invoking Article 370(3) instead, the central government has cleverly bypassed the arduous route of a constitutional amendment.

In other words, Article 370 stays very much as part of the Indian Constitution and cannot be repealed or abrogated without a constitution amendment in accordance with Article 368 and hence no such bill was moved by Amit Shah in Parliament.

The government simply used Section 3 of the same Article 370 to supersede previous Presidential Orders extending the Indian Constitution in totality to Jammu and Kashmir. Earlier, only a set of limited provisions such as foreign relations, communication and defence had jurisdiction over Jammu and Kashmir.

After the present development, all Indian laws would become operative across Jammu & Kashmir.

This means that the separate constitution of Jammu and Kashmir ceases to be in operation in the state of J&K.

With the J&K state constitution rendered inoperative, the central government got the power to redraw the map of the state.

Accordingly, Amit Shah moved another resolution to bifurcate Jammu and Kashmir. If adopted by the Parliament, the resolution would turn the existing state of Jammu and Kashmir into two Union Territories of Jammu-Kashmir and Ladakh respectively.

Consequently, J&K state’s separate Ranbir Penal Code (RPC) would give way to the Indian Penal Code. The separate state constitution had allowed a separate penal code for Jammu and Kashmir. With J&K’s separate constitution gone, the Indian Penal Code will supersede the RPC.

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