New Delhi: The Narendra Modi government Monday took the first steps to repeal Article 370 of the Indian Constitution, which gives special status to the state of Jammu & Kashmir.
Making the announcement in the Rajya Sabha, Union Home Minister Amit Shah said an amendment to the Article had been issued through a presidential order.
ThePrint explains the implications of this presidential order.
What does the new presidential order say?
The order, called the Constitution (Application to Jammu & Kashmir) Order 2019, supersedes the Constitution (Application to Jammu and Kashmir) Order 1954, which defined the constitutional position of the state of Jammu & Kashmir vis-à-vis the Indian Union.
More importantly, the 1954 order added Article 35A, which allowed special privileges to the state’s ‘permanent residents’, as defined by the J&K legislature.
The new order, therefore, essentially scraps Article 35A.
It also amends Clause 3 of Article 370 — which allows the President to revoke Article 370 in consultation with the “constituent assembly of the state” — to substitute the expression “constituent assembly of the state” with “legislative assembly of the state”.
The next likely step may be invoking the new Article 370 (3) to declare Article 370 inoperative, with the recommendation of the legislative assembly. J&K is currently under Governor’s rule and doesn’t have a legislative assembly.
What is Article 370?
Article 370 of the Constitution provides unique status to the state of Jammu & Kashmir, laying down different laws of citizenship as well as property rights for residents. It also allowed the state to have its own constitution.
The provision specifies that the Indian Parliament needs the state legislature’s concurrence for applying any law to the state, except those concerning defence, foreign affairs, communications, and ancillary matters.
Similar provisions exist for endowing such status on certain tribal areas of the country, including those in Himachal Pradesh, Arunachal Pradesh, Andaman & Nicobar Islands, and Nagaland.
Is Article 370 a temporary provision?
In the Indian Constitution, Article 370 falls under “temporary provisions with respect to the state of Jammu and Kashmir”. However, it has been stated time and again by the Supreme Court as well as various high courts that Section 370 is a permanent provision.
The Jammu & Kashmir High Court had ruled in October 2015 that Article 370 cannot be annulled as clause 3 of the provision makes it clear that it is “necessary” for the President to take the recommendation of the “constituent assembly of the state” before declaring the provision inoperative.
The first step, ideally, should have been a constitutional amendment of Article 370, following the procedure laid down under Article 368, to include the changes now effected through the presidential order.
Another question is whether this provision comes under the basic structure of the Constitution, because according to the ruling in the Kesavananda Bharati case, Parliament cannot amend the basic structure of the Constitution of India. Therefore, any such amendment might be subject to judicial review.
Procedure to amend the Constitution
For the purposes of amendment, the provisions of the Constitution fall under three categories.
The category that would have overseen the amendment of Article 370(3) requires a special majority, by the procedure laid down in Article 368(2). These amendments need to be passed by both Houses with a two-thirds majority.
In addition to the special majority, it needs to be ratified by half of India’s state legislatures.
Has Article 370 been scrapped?
No. This presidential order leads to the interpretation of Article 370(3) in a way that “constituent assembly” is replaced with “legislative assembly”. So, essentially this paves the way for the repeal of Article 370 later by a presidential order.
Some say Article 370 was the only link between India and J&K. Will Article 370 revocation make J&K independent of India?
No. Home Minister Amit Shah has tabled in Parliament the Jammu & Kashmir Reorganisation Bill 2019, which seeks to make J&K a union territory with a legislature, like Delhi or Puducherry. It also seeks to make Ladakh a separate union territory.
Can the order be challenged?
Talking about the presidential order, constitutional expert and NALSAR University of Law vice-chancellor professor Faizan Mustafa said it used Article 370 to amend Article 370.
“For application of any provision of the Constitution, the President, under Article 370, can pass an order. So, they have invoked an order under Article 370 to state that all provisions of the Constitution of India shall apply to Jammu & Kashmir,” he said. “So the impact of Article 370 that Kashmir will have a special status is gone by 370 itself.
“Now, in Article 370, they are bringing some cosmetic changes like replacing ‘constituent assembly’ with ‘legislative assembly’ of the state, replacing ‘Sadr-i-Riyasat’ by ‘governor’,” he added. “But, in reality, all of these provisions will not mean much because once all the provisions of the Constitution are extended to Jammu & Kashmir, all these are irrelevant.”
As for the implications, Mustafa said the next step would be to get the legislative assembly’s recommendation to declare Article 370 inoperative.
However, constitutional expert and former Lok Sabha secretary general P.D.T. Achary said the order might be declared null and void.
“If the government plans to substitute the constituent assembly with legislative assembly of the state, they must move a Constitution amendment bill in both Houses of Parliament, which will need need two-third majority and ratification by 50 per cent of the states,” he added.
“It is only then that the President can issue such an order, as contemplated under Article 370 of the Constitution… Without this bill, the presidential order is null and void,” he said.
Mustafa, meanwhile, argued that a constitutional amendment is now “redundant as the Constitution of India is extended to the state”.
“The constitutional amendment is needed only for cosmetic changes, else they can only say that they are deleting Article 370,” he said.
This report has been updated to say J&K is currently under Governor’s rule, not President’s rule. The error is regretted.