Article 370 Made Redundant, Not Scrapped: Experts

A section of lawyers, part of the Congress leadership, has claimed that legally Article 370 cannot be scrapped by the President without the state Assembly's recommendation, but experts say the article has been made redundant instead of being scrapped.

Jaiveer Shergill, Supreme Court lawyer and Congress national spokesperson, said in a tweet, "Legally, as per proviso to Article 370 (3) of the Constitution, it cannot be scrapped by the President without the Assembly's recommendation. Currently, there is no valid Assembly and the BJP has been avoiding elections. Scrapping Article 370 in current manner is unconstitutional".

Shergill also cited a Supreme Court judgement to buttress his interpretation of the Constitution.

Former Finance Minister P Chidambaram described the government decision on Article 370 and its provisions a "catastrophe". "What the government has done is unprecedented. We anticipated that they are embarked on a misadventure. They have not got rid of Article 370, but have dismembered J&K by misinterpreting Article 3 and Article 370 of the Constitution", he told mediapersons outside Parliament.

Legal experts have a contrary view to the Congress leaders. 

Speaking to IANS, Rakesh Dwivedi, an expert on the Constitution, said, "Article 370 is operationally dead, though not scrapped yet, after this notification by the government. This article will continue to remain in the Constitution, but it's redundant. To pull it out, the government will have to amend the Constitution. But it's not required any more. After this notification, J&K has been formally integrated into the Constitution." 

The government has also proposed to change the definition of the state and make it a Union Territory with the Assembly. The Bill, introduced in Parliament by Home Minister Amit Shah, would go through the due parliamentary process, Dwivedi said.

Dwivedi's perspective was validated by former Secretary General Subhash Kashyap. He said the government had exceptionally fine-tuned its strategy to make Article 370 defunct despite keeping it in the Constitution. 

"The proviso to Article 370(3) of the Constitution can be interpreted to look at Parliament as a legislative head of the state, as it was under the Centre's rule. Therefore, no concurrence is required from the state government." said Kashyap.

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