Considered an ‘albatross around the neck’ by the present BJP government at the centre, the sudden and surprising abrogation of Article 370 has opened the doors to a flood of emotions. The abrogation will be debated and tested in the Supreme Court, but it seems that the move has already won in the peoples’ court.
The Modi Governments scrapping of Article 370 and consequently Article 35A is part of the J&K Reorganisation Bill passed in both the Houses of Parliament during the recent budget session has not surprisingly evoked a wide swathe of emotions across both sides of the Line of Control.
In blunt terms what it means is that Jammu and Kashmir no longer enjoys any special status and every law applicable to the people in the rest of the country including fundamental rights guaranteed by Part III of the Constitution will now be available to people of J&K. The reaction from Pakistan is no surprise. They have virulently condemned it.
Back home, while the popular mood seems in favour of the government’s decision to scrap the Article, there is a strong and vocal minority that has been categorical that what was done was “undemocratic, illegal and an assault on the constitution”. Multiple speeches in Parliament—notably by Manish Tewari, Shashi Tharoor and Ghulam Nabi Azad have been widely quoted both by Pakistan and the media in that country and elsewhere (notably Al Jazeera and BBC) to further the argument that what the Centre did was unconstitutional. In fact, privately many of them say that this was part of the ‘jingoism’ of the BJP Government.
Two court decisions have been repeatedly quoted by those who argue against a change in the status quo. On October 11, 2015 a division Bench of Justices Hasnain Masoodi and Janak Raj Kotwal ruled in a 60-page judgement: “Article 370 though titled as ‘Temporary Provision’ and included in Para XXI titled ‘Temporary, Transitional and Special Provisions’ has assumed place of permanence in the Constitution. It is beyond amendment, repeal or abrogation, in as much as Constituent Assembly of the State before its dissolution did not recommend its Amendment or repeal.”
The Court also observed:
Bu hikaye Legal Notes dergisinin August 2019 sayısından alınmıştır.
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Bu hikaye Legal Notes dergisinin August 2019 sayısından alınmıştır.
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