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| To retain or not to retain Art 370 | | SC puts ball in Parliament's court | | Early Times Report
JAMMU, Nov 1: The apex court on Saturday declined to entertain a PIL that wanted Article 370 removed from the Constitution. A bench led by Chief Justice H L Dattu said that the court cannot issue such directives. "Will it be done by the court or by Parliament? Can we ask Parliament to delete a provision from the Constitution? It is not for this court to do so," said the bench, also comprising Justice Amitava Roy. PIL petitioner B P Yadav, a lawyer based in Andhra Pradesh, pleaded that the issue required interference by the Supreme Court but the bench didn't endorse his plea.
"We can strike down a provision if it is unconstitutional but we cannot be asking Parliament to remove a provision. It has to be done by them (Parliament)," said the bench as it asked Yadav to file a better petition if he intends to pursue this matter any further.
Yadav, in his PIL, had requested the court to quash Article 370 and make all laws, which are applicable to other States, also valid for Jammu & Kashmir. The plea also sought direction for removal of the words "except Jammu & Kashmir" from all the pertinent statutes where laws are made applicable to all other States and union territories.
According to Yadav, Article 370 and the consequent Presidential Order abridge the Constitutional scheme and also violate Part III, which relates to the fundamental rights of people and comprises the basic structure. He pointed out that Article 370 has been titled as a "temporary provision" that makes it amply clear that it had to go after some time.
Earlier this month, the J&K High Court had observed that notwithstanding its title "temporary provision", Article 370 is a permanent provision of the Constitution.
The observations of the Supreme Court on the PIL seeking abrogation of Article 370 have been appreciated in Kashmir by the National Conference and fraternity of lawyers. They have described the refusal on the part of Supreme Court to entertain the PIL as vindication of their stand that Article 370 cannot be removed. Their approach is flawed and communally motivated. It's true that the Supreme Court didn't entertain the PIL, but it's also a fact that the Supreme Court asked Yadav to "file a better petition if he intends to pursue this matter any further". This should call the bluff of the NC and others in Kashmir who want this Article to remain in existence so that the vested interests misuse it against the national interest and against the interest of the minorities in the State. By saying that Yadav needed to file a better PIL to achieve the desired result, the Supreme Court has kept its doors open.
But more than that, the Supreme Court has put the ball in the court of the Indian Parliament, the highest law-making body. It was the Indian Parliament that enacted this atrocious, divisive and anti-democratic Article and it is within its jurisdiction to retain or abolish it or modify it. Hence, there are not good reasons for the NC and others in Kashmir to celebrate the Supreme Court's observations.
Now that the Supreme Court has put the ball in the court of the Parliament, it's time for the BJP-led NDA Government to take the whole issue to the Parliament so that Article 370 is removed from the Indian statute book and Jammu & Kashmir brought at par with other States of the Union. Removal of Article 370 is imperative not only to defeat the anti-national forces in the Valley and Pakistan but also to enable the people of Jammu province and Ladakh to exercise all the rights which are available to the rest of the Indians under the Indian Constitution. |
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