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Monday, August 6

33. Article 370 & Procedure for Amendment of Constituion





SPECIAL PROVISIONS

The Indian Constitution protects certain sections of the society which have faced injustice historically. In the similar vein, the Indian Constitution protects certain States to immune from the Constitution under Part XXI titled ―Temporary, Transitional and Special Provisions‖ from Articles 369 to 392. In this Part, the Indian Constitution provides temporary provisos to the State of Jammu & Kashmir (Art 370). The Indian Constitution also provides special provisions to State of Maharashtra and Gujarat (Art.371), Nagaland (Art. 371A)Nagaland (Art. 371A), Assam (Art. 371B), Manipur (Art. 371C), Andhra Pradesh (Art. 371D), Sikkim (Art. 371F), Mizoram (Art. 371G), Arunachal Pradesh (Art. 371H), Goa (Art. 371-I) and Karnataka (Art. 371 J). The object behind to provide ―special‖ and ―temporary‖ provision to the certain States was to protect these State‘s autonomy in some areas.

LIMITS ON POWERS OF PRESIDENT

The issue of consideration is, besides giving assent to the Bill passed by the Both Houses (Lok Sabha and Rajya Sabha), President of India has sole legislative power under article 123 to make ordinance when either house of the Parliament is not in session. These legislative powers of the President have only six-month effect; in other words, it is the authority to make laws without discussion in the Parliament in urgency for a shorter period. It is an exception in the making law not a general rule or a permanent measure. In the Constitutional scheme, the President of India has no legislative power to amends the Constitution by bypass the democratic process. President‘s legislative, executive and judicial power is subjective to aid and advice by the Council of Minister (Art 74), but all these powers do not allow to the President to go beyond the spirit of the Constitution.

POWERS OF PRESIDENT VIA ARTICLE 370

370. Temporary provisions with respect to the State of Jammu and Kashmir

Unparalleled Special Status to Jammu & Kashmir

Power of Parliament to make laws for the state is limited to – external affairs, defence, communications and ancilliary matters.

Such other matters in the said Lists (Union and Concurrent) as, with the concurrence of the Government of the State, the President may by order specify.

1 (d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify

Nowhere in the Article 370 mentions that President of India has the power to amend the Constitution or insert a new Article in the Constitution? The Article 370 only states that the President can make any exceptions and modifications with the concurrence of the Government of the State. Subclause 1 (d) of the Article 370 states that: ―Such power of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify.‖

POWERS TO AMEND THE CONSTITUTION

Article 368 is the only way to amend the Constitution, not the President. The marginal note of Article 368 States ―Power of the Parliament to amend the Constitution and procedure, therefore‖ which means it is the Parliament that has the power to amend the Constitution.



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