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3rd August 2023 (8 Topics)

President retains power to scrap Article 370: Supreme Court

Context

Recently, the Supreme Court (SC) raised the question whether the President’s power to declare ‘inoperative’ Article 370 of the Constitution, will not continue to hold the field after the dissolution of the erstwhile State’s Constituent Assembly on January 26, 1957.

What are the Powers of President under Article 370?

  • Clause (3) of Article 370 gave the President Power to notify the Article ‘inoperative’ or ‘modify it’.
  • But a proviso had made it “necessary” that such a move would have to be recommended by the Jammu and Kashmir (J&K) Constituent Assembly.

Supreme Courts’ views on Clause (3):

  • According to the apex court, a Constituent Assembly is not a permanent body like the Parliament and the Supreme Court.
  • The J&K Constituent Assembly was constituted for a specific purpose — to draft the Constitution of J&K.

"Functus officio" is a Latin term meaning having performed his or her office. With regard to an officer or official body, it means without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.

  • It became functus officio once the J&K Constitution was framed.
  • This proviso making the Constituent Assembly’s ‘recommendation’ necessary before abrogation has no application.
  • If the proviso ceased to operate, surely the substantive part of Clause 3 in Article 370 will remain.

Constitutional Provisions in support of the SC’s argument:

  • Article 370 was mentioned in the Constitution only as a “temporary” provision.
  • However, it became permanently engrafted into the Constitution after 1957 with the dissolution of the Constituent Assembly.
  • Article mentions a Constituent Assembly for J&K. However, the Constituent Assembly was not convened until December 1951.
  • It was then left to the people of J&K, through their Constituent Assembly, to decide if Article 370 ought to be abrogated at all.
  • Article 370 was called ‘temporary’ because the Constitution always wanted the J&K people to decide their future.
  • Article 370 could have been abrogated only by a vote of confidence in the Constituent Assembly.

What are the Legislative Powers of the President?

There are four legislative powers of President, as per the Constitution:

  • He can send messages to either House of the Parliament.
  • He summons and prorogues the Houses.
  • He can dissolve the Lok Sabha and order fresh elections.
  • He nominates 12 members to the Rajya Sabha.

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