Trial balloon on Art 370 from PMO?

New Delhi :  On the opening day of the Modi government, there were some discordant noises: A junior minister in the PMO Jitendra Singh had to retract his statement on Article 370. The controversy erupted when Singh, the MP from Jammu, spoke of the government being in the process of abrogating Article 370, the vital constitutional link between India and the state of Jammu and Kashmir.

“Mark my words & save this tweet — long after Modi Govt is a distant memory either J&K won’t be part of India or Art 370 will still exist.’’

Singh observed in comments to the media that now that the BJP has absolute majority in the Lok Sabha it could abrogate this provision. ‘‘His (Mr Modi’s) intention and that of the government is that we should have a debate so that we can convince the unconvinced about the disadvantages of Article 370,” Singh said.

MoS in PMO jumps the gun to create a controversy even before the govt has settled down to govern.

Later, he clarified that the reports in the media about his statement on Article 370 were misquoted. ‘‘I have never said anything quoting the Honourable Prime Minister. The controversy is totally baseless,” he said in a statement. His remarks invited a swift retaliation from Jammu and Kashmir chief minister Omar Abdullah and People’s Democratic Party president Mehbooba Mufti.

“So the new MOS PMO says process/discussions to revoke Art 370 have started. Wow, that was a quick beginning. Not sure who is talking,” Omar tweeted.

“Mark my words & save this tweet — long after Modi Govt is a distant memory either J&K won’t be part of India or Art 370 will still exist. It is the only constitutional link between J&K & rest of India. Talk of revocation of the Article is not just ill informed it’s irresponsible as well,” he added.

Article 370, which gives special status and autonomy to Jammu and Kashmir, specifies that except for Defence, Foreign Affairs, Communications and ancillary matters (matters specified in the Instrument of Accession), the Indian Parliament needs the State Government’s concurrence for applying all other laws. Because of this, the residents of Jammu and Kashmir have a separate set of laws. More or less similar protections are provided to the tribal states of Himachal Pradesh, Arunachal Pradesh, Andaman & Nicobar Islands and Nagaland to protect their ethnicity.

The Modi government will face a major hurdle in revoking Article 370 because of its Clause 3 that requires the recommendation of the Constituent Assembly of the state for any such revocation, but that means a new Constituent Assembly will have to be set up.

Even if Parliament amends the Constitution to revoke this Article it may not stand the test of judicial review. According to constitutional expert Rajiv Dhavan, Article 370 can’t be abrogated because then the very basis of accession will be in jeopardy. He also feels that accession of J&K to India is permanent.

Former Union Law minister Shanti Bhushan says under Article 368 of the Constitution, Parliament has the power to amend the Constitution. But in view of the Supreme Court’s ruling in the Kesavananda Bharati case, Parliament can’t amend the basic structure of the Constitution. According to him obtaining the opinion of the Supreme Court is a must before going ahead with the abrogation of Article 370. There are, however, doubts about whether Article 370 is a part of the basic structure of the Constitution or not.

MOS in PMO Jitendra Singh also reasoned that since “the BJP has won more than half of the seats from Jammu and Kashmir, so we will interpret this as an endorsement of the BJP’s stand. Article 370 is more like a psychological barrier and has done more harm than good. The youth of Kashmir have to be convinced about this. That’s why the honourable PM has called for a debate.’’

Singh had joined the BJP only in January 2011 and trounced former chief minister and union minister Ghulam Nabi Azad from Udhampur. His campaign for abrogating Article 370 is well-known in Jammu and Kashmir.

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