How to repeal Article-370?

Discussion in 'Politics & Society' started by aditya g, May 4, 2017.

  1. aditya g

    aditya g Senior Member Senior Member

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    This is an interesting question for which there seems to be no roadmap.

    Actually, it is need of the hour.

    @Nicky G can you post your thoughts to get this thread going?

     
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  3. Nicky G

    Nicky G Senior Member Senior Member

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    Its very complex and there have been decision by J&K high court against this but its still an open case.There's plenty of reading material on the net but I'll try to get to the main point:

    The article itself states under Clause 3 that:

    'The President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation.'

    Now that Constituent Assembly doesn't exist, so most people, take it to mean the J&K legislative assembly. This is what the J&K HC used to state that it can't be revoked. That's true, but only as long as the article itself is part of the constitution.

    Now since this itself is part of the constitution, it can be amended/removed as long as it does not alter the basic structure of the constitution. The argument would be that such as move would alter the relationship between the State and the Center and cannot, therefore, be amended. However, there are doubts over whether Article 370 is a part of the basic structure of the Constitution or not.

    How can something that's 'temporary' be part of 'basic structure?'

    Its also argued that Article 370 embodied “conceptual framework of relationship” between the Union of India and J&K and thus if it were to be repealed this would put in question the accession itself. However that itself is shaky. Once Article 370 is repealed, the accession will become operational to what's consistent with the constitution.

    Those are high level points and we can take it forward if folks are interested.

    Why its not been done? Get 2/3 majority in both houses and you can try it.
     
    Last edited: May 4, 2017
  4. aditya g

    aditya g Senior Member Senior Member

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    When you said both houses - you meant LS and RS or LS and State's Legislative Assembly?

    Now why would you need a 2/3 majority in the govt? A constitutional amendment requires 2/3 of the house to pass it - so in cooperation with other parties in can be done. If the central houses pass it, then it will require 2/3rd of the states to pass it (or maybe just J&K assembly) - but either ways the pressure is off the centre.

    Why hasn't the NDA government - be ABV or NaMo - done any tangible on this?
     
  5. prasadr14

    prasadr14 Regular Member

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    If you have the majorities in both houses and SC on board, it's a done deal.
    Does not matter who cries or don't as long as these three institutions are on same page.
     
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  6. Screambowl

    Screambowl Senior Member Senior Member

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    A370 is going to stay.

    1. Pakistan's narrative is they have legal document known as Karachi agreement. Which is equivalent to Instrument of accession.
    2. The diiference b/w Karachi agreement , 28th April. and instrument of accession is one is a public mendate other one is Monarch's mandate.
    3. India has argument that demography changed and then this Karachi agreement took place.
    4. So if A370 is dissolved, this argument will have to be nullified in UN.

    There is a dead lock. Nehru bakchodi kar gaya hai ... nothing else.
     
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  7. raja696

    raja696 Senior Member Senior Member

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    Watch it from 11:20

    He says its all up to bjp new president chosen by them in next month.

    No need of any opinion of Jk state.
    ......................................
     
    Last edited: May 5, 2017
  8. prasadr14

    prasadr14 Regular Member

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    UN is a joke...It has become so political that you need one of the 5 permanent members to back u for a permanent stalemate.

    Removing article 370 is an internal matter and is solely in purvey of both houses of parliament. If they revoke it, it's done and dusted.
    We are thinking too much on accession document etc etc...which are so long in the past and carry little significance, especially considering that same document gives land under Paki & chinki occupation to us.

    Like I said, the parliament needs to support the move and it's done. Does anyone remember how AP was divided to give TG? the state literally had no say in the matter...
     
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  9. roma

    roma NRI in Europe Senior Member

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    if we want to remain tied in legal knots , then fine ... we will continue with a lot of legal wrangling and it will o on for ever

    it has been 70 years or so since kash has been part of india

    it is about time for article 370 has to go

    we have to do things like Israel or china ...... preferably like the way china handles xinjiang to the extent that even Muslim countries keep their mouths absolutely shut

    unless we are willing to do things the way china does , i.e certain amount of strong arm and relocating people bulldozing the old society and relocating them .....

    if we are not, then this debate and shenanigans will continue for yet another 70 years

    so no need to complain , if we dont have the guts to solve the problem
    then be content to live with the problem
     
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  10. prasadr14

    prasadr14 Regular Member

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    Well, the muzzie appeasement has been legendary for past 70 years.
    No one want's to touch 370 because no govt want's to be the one to take away special privileges of muslims.
    Once BJP get's majority in RS, there is no reason not to repeal it. At least bring the bill in and expose all the anti-national parties. If needed bulldoze through the bill by banning opposition.

    If SC tries to be funny, Govt should get extremely funny with collegium..
     
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  11. Raj Malhotra

    Raj Malhotra Regular Member

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    No need to amend Article 370. Just annex JK under Article 1 to 3 of Constitution by executive action & declare it a new ordinary State. A friendly Supreme Court Judge & we are through.
     
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  12. Screambowl

    Screambowl Senior Member Senior Member

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    In a democratic country their cannot be anarchic way
     
  13. charlie

    charlie Regular Member

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    it's not the right time now, maybe if modi has a 3rd term. Any messing around now will only complicate things further as India is not in a strong position yet as it still seeks investment from other countries.
     
  14. prasadr14

    prasadr14 Regular Member

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    Spot on...That's why I said having a willing parliament and SC.
    Why would parliament making new laws be anarchy? Their whole & sole purpose is to pass & amend laws!!

    There is nothing sacrosanct in article 370 that a willing parliament can not negate.
     
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  15. Screambowl

    Screambowl Senior Member Senior Member

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    Any thing which comes to parliament related to state, has to be first passed in state assembly. And this will not pass in J&K state assembly.

    After UP elections, the unrest started because it was confirmed that A370 will have it's place soon.
    Most of the tamasha there is political. With Lot's of bahari paisa.
     
  16. prasadr14

    prasadr14 Regular Member

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    Not true...Parliament super seeds state assembly.
    Please have a look at AP was divided and TG given, the state assembly had no say.

    To Top it all, Parliament has the powers to make new rules to negate old ones. A very convenient power. And on top of it, even if we go by the existing rules, it states Constituent assembly and not State...J&K does not have constituent assembly anymore. So, if parliament passes the law to remove 370, all it takes is a willing SC to nod in parliaments favour.
    More importantly, once parliament passes the law, it can only be reviewed by a SC bench and not state benches...
     
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  17. Screambowl

    Screambowl Senior Member Senior Member

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    Because in Andhra Pradesh there is no personal constitution.

    J&K has it's own constitution. First it has to be passed there.

    ( please correct me if I am wrong)
     
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  18. prasadr14

    prasadr14 Regular Member

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    We are going in circles...
    J&K may have separate anything. Does not matter one bit. As long as it's under the constitution of India, parliament has the tools to do anything with it - This is the legal way.
    Once Parliament passes a law and approved by president, only one place can it be challenged and that's not in J&K and it's in SC.

    This is simply due to article 370 being a part of Indian constitution, hence comes under the parliaments ambit. Please go through swamy's videos on the same. He explains it much better.

    In fact his opinion is, since there is no more constituent assembly in J&K, all it takes is a willing president to remove it and does not even need approval of parliament.

    Interesting times ahead...
     
  19. Screambowl

    Screambowl Senior Member Senior Member

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    Only in few matters.
    Without the clearance from state assembly there cannot be any amendments via Parliament. . That's the special status to J&K.
     
  20. raja696

    raja696 Senior Member Senior Member

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    Bhai have u seen andhra pradesh division process even it had similar sister provision 371 i guess...(opinion of concerned state doesn't matter, its all up to centre) state was split just like that. JK 370 is like hair plucked from its root compared to that task.

    No need to worry so much.

    J&k have parliament because of 370 not viceversa. Once president scrapes 370 with executive order... j&k is normal state.
     
    Last edited: May 5, 2017
  21. A chauhan

    A chauhan "अहिंसा परमो धर्मः धर्म हिंसा तथैव च: l" Senior Member

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    BJP getting majority on its own in J&K is the only possible way. Plus Kashmiris should be afraid of consequences of "Aazadi" that they don't have iron, minerals and other resources, they only have tourism and Indian aids on which they live, with "Aazadi" they would turn bankrupt and become terrorists, no house would remain intact, Pakistan will turn J&K into a battle ground and a hell or graveyard.
     

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