INCAPACITATING ARTICLE 370

Any act by any majoritarian Government is not justified by virtue

of it being passed by both houses. The government actions must
also satisfy the letter and spirit of the constitution and settled
principles of law and jurisprudence. India is a parliamentary
democracy which is achieved by the principles laid down in the
constitution. Parliament although sovereign in its sphere is not
exactly sovereign under the constitution which defines the people
of india to be sovereign. The act of parliament’s to abrogate 370 is
a constitutional betrayal. It betrays promises laid in the instrument
of accession by which a legal right to enter the state as a
conditional political pact was granted. There in this case is a want
of proper legislative exercise and therefore sets a wrong
parliamentary precedent. The government moved the bill in the
house without following the due process laid down in business
regulation act 1961 and other rules for putting a bill into motion.
The rule of law can never be undermined and shall always be
supreme but the government has with a sleight of hand tried to
undermine the rule of law.
Arguments on these points:
1. Supremacy of the rule of law sub clause 3 of article 370n
uses the term other provisions, the president is not
empowered to pass any notification unless the state
government is of the view and passes an order in that behalf.
Secondly the term temprorary was explained by the supreme
court in sampat prakash case in 1969 and the sc refused to
accept article 370 as temporary and further has never ceased
to be operative.
2. the well known principle of pacta sunt servanda has not been
recognized which means promises between a state to be
honoured.
3. this goes against the federal structure of the constitution as
the assembly was suspended. Federalism is part of the basic
structure doctrine no executive or legislative action can
 bypass this. Setting such wrong precedents will not be
conducive to the federal structure of polity.
4. want of a proper legislative exercise no proper debate,
discourse has been taken up by the government before taking
this draconian decision. This irregularity may even amount
to illegality and therefore the act of the government is
completely preposterous.
5. Nadir of Indian democracy as there is not much difference
between emergency and abrogation of 370. Bill was
surreptitiously moved.
6. goes against the letter and spirit of the constitution. The
principle of constitutionalism has been overlooked.
7. no national integration achieved the constitution of Kashmir
mentioned j and k to be an integral part of india. Further 94
entries of the 97 entries in the union list were applicable to
kaashmir.
8. as the former PM of India had said it is insaniyaat
jamhooriyat and kashmiryat.
9. the whole idea of parliamentary democracy will be
chimerical if majoritarian governments squelch the rights of
people and the clampdown in Kashmir is a paradigm of it.
10. now the governor in absence of state assembly is given
power to put views of the state. The governor itself is
appointed by center.
11. The government had powers of defence external affairs and
communications there to say that terrorism was eroding
national integration is per se wrong as the center had powers
of defence.
12. therefore the historical reasons which resulted in formation
of article 370 and the sentiments involved with it were not
respected.