Constitutional validity of Article 370 challenged by BJP leader in SC

A PIL was filed by Delhi BJP leader and lawyer Ashwini Kumar Upadhyay in the Supreme Court challenging constitutional validity of Article 370 of the constitution.

Article 370 is a temporary provision granting special autonomous status to Jammu and Kashmir. It limits the jurisdiction of Parliament confining it to matters in Union List and Concurrent list with residuary powers belonging to Legislature of the state.

The plea said that the special provision was “temporary” in nature at the time of framing of the Constitution and Article 370(3) has lapsed with the dissolution of the Jammu and Kashmir Constituent Assembly on January 26, 1957.

The plea mentioned that the special Constitution of Jammu and Kashmir is ‘arbitrary’ and ‘unconstitutional’. The plea further said that “The Constitution of Jammu and Kashmir is invalid mainly for the reason that the same has not yet received the assent of the President, which is mandatory as per provisions of the Constitution of India”.

Kashmir enjoys special privileges over and above other states of India. Article 370 says that any action of the Union Legislature or Union Executive which results in alteration of the name or territories or an international treaty or agreement affecting the disposition of any part of the territory of Jammu and Kashmir requires the consent of the State Legislature.

The plea also speaks about violation of rights of equality of people from other states as it empowers the state legislature of Jammu and Kashmir to frame any law without attracting a challenge.

The petition particularly challenges the mandate that the President requires the consent of the Constituent Assembly of Jammu and Kashmir in order to declare Article 370 null and void.

The petitio says “It virtually erodes the wide powers of the President of India.”

It says the provision amounts to an arbitrary restriction and an abridgment of the powers of the President under the clause of Article 370(3).

On the same issue Omar Abdullah said, “Don’t forget that J&K acceded to India on certain terms and conditions as represented by Articles 35A and 370. If these are changed or deleted now, you are reopening the very question of accession.”

Abha Boyal

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