oppn parties The J&K Action: Over To The Courts Now

News Snippets

  • Media person Rajat Sharma resigns as DDCA president
  • Shiv Sena, NCP and Congress postpone meeting the governor of Maharashtra
  • Shiv Sena not to attend the NDA meeting on 17th November, says break up "a formality"
  • Shiv Sena says that the confidence the BJP is showing about forming the government in Maharashtra is based purely on its expectation of getting numbers through horse trading
  • Anil Ambani resigns as director of the bankrupt Reliance Communications
  • India beat Bangladesh by an innings and 150 rums inside three days in the first Test. Indian pacers excel after Mayank Agarwal's double century
  • Sena-NCP-Congress work out a common minimum programme, will form the government soon and it will last 5 years, says Sharad Pawar
  • Income Tax Appellate Tribunal upholds the decision to withdraw the charitable status of Young India, making it liable to pay Rs 145 in income tax. Rahul Gandhi and Priyanka Vadra are the majority shareholders in the company
  • CBI raids offices of Amnesty International across India
  • Supreme Court quashes NCLAT order against Arcelor Mittal and paves the way for the company to take over ailing Essar Steel
  • Finance Minister Nirmala Sitharaman says concerns of telcos will be addressed and no company will close down
  • Government thinking of providing higher insurance coverage on bank deposits
  • Mayank Agarwal scores a double century as India take firm grip on the first Test versus Bangladesh
  • Supreme Court warns Rahul Gandhi to be more careful in future but drops contempt proceedings in the "chor" case
  • In a flip-flop, Vodafone CEO says sorry to the government, sys no plan to exit India
Supreme Court dismisses plea for review in Rafale case, says no need for roving inquiry, maintains clean chit to government
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The J&K Action: Over To The Courts Now

By Sunil Garodia

About the Author

Sunil Garodia Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Writes for a number of publications.

The government's move on Article 370 will definitely become the subject matter of numerous court cases as the National Conference and the PDP have already expressed their desire to challenge it. One feels that even the Congress will throw its hat in the ring, as will other smaller parties in J&K. The basic matter of the dispute is whether the government was right in getting the President to sign an order under sub-section 3 of Article 370 when the state assembly is not in existence and its concurrence or advice has not been taken.

Sub-section 3 of Article 370 reads as follows: (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: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

But the section does not specify what will happen if the constituent assembly (which in case of J&K now means the state assembly) is dissolved. Since J&K is under the President's rule at present, is the Governor's recommendation enough? Does the Parliament automatically have all the powers that would vest with the state assembly if it was in place? Does the President have the power under Article 370(3) to issue notification without the recommendation of the state assembly? Will such a notification be valid under the Constitution?

Obviously, these and many other questions will be put before the Supreme Court which must now decide whether what the government has done passes muster as per the Constitution. Since J&K is a special case, there are not many precedents to guide the courts. The honourable justices would have to interpret the provisions from scratch and decide whether the government's action is contrary to what the law says.