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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