SECTION 3 - (CHAPTER 16)

STATUS OF JAMMU & KASHMIR ABROGATION OF Art. 370

Lok Sabha on 6 December, 1968

The Minister of Home Affairs Shri Y. B. Chavan : Mr. Speaker, Sir, the debate which was initiated by Shri Atal Bihari Vajpayee has raised only one basic question as a result of his speech or motion and that is, that Article 370 should be abrogated. This is the specific suggestion that the Resolution makes.

... He has used some very fine expressions to express the feeling. What he meant was that there is some psychological problem with a political complexion which exists as far as Kashmir is concerned and I should say that, that is a realistic assessment. He made three or four demands. I will go into them later.

Of the other hon. Members who spoke, very few of them supported Vajpayee’s demand. My task has therefore become somewhat easier. Some of the Hon. Members representing parties have explained why it is not necessary to abrogate article 370. Everybody has tried to examine this problem of Kashmir from his own point of view and has tried to explain the great variety among those problems. I do not want to say anything which Possibly might create more problems than solve them.

Coming to Article 370 Sir, we know the history of it, how it has come about. It has got three clauses. In case of clause 1(a) Shri Vajpayee very rightly said that it has become completely superfluous. I agree with him. It refers to Article 238, which does not exist in the Constitution. It is a good as abrogated. Then, he made a mention of clause 3 of Article 370. He asked why the President does not make use of the power under Clause 3. May I read it for the benefit of Shri Vajpayee ? It reads:

“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.”

And then this is important  -

‘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.”

This clause was again, an exercise of power, once only, that was, when constituent assembly recommended to make it operative. That is the scope of this clause. But there is no longer any constituent assembly and there is no scope for any constituent assembly to make any recommendation, and therefore there is no scope for exercise of any power under this clause. It is as good as nothing.