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Union Home Minister Amit Shah announced in the Rajya Sabha on Monday, 5 August, that the President had issued an order modifying Article 370 of the Constitution of India, leading to reports that the government had revoked the controversial provision – which provides for Jammu & Kashmir’s special status, and the BJP had promised to abrogate in its manifesto.
Unlike his other announcement, regarding the bifurcation of Jammu & Kashmir into Union territories (Ladakh and Jammu & Kashmir), the measures regarding Article 370 does not need to be passed by Parliament, as they have been brought in by a Presidential Order, the Constitution (Application to Jammu and Kashmir) Order, 2019.
But what exactly does the Order do? Does it actually revoke Article 370? Does it affect Article 35A (which deals with the privileges of permanent residents of J&K)? And can it be challenged in court?
WHAT DOES THE ORDER DO?
The Order does not revoke Article 370 in so many words. However, it effectively abrogates the provision and what it was meant to do.
DID THE GOVERNMENT HAVE THE POWER TO DO THIS?
The government has passed this Order under Article 370(1) of the Constitution, specifically Article 370(1)(d). Under this, the President can notify provisions of the Constitution to apply to J&K provided this is done in consultation with the “Government of the State”.
The 2019 Order is not a revocation, because under Article 370(3) for Article 370 to be removed, it requires a recommendation of the Constituent Assembly of J&K – which is not possible any more since the Assembly was dissolved in 1956. The Supreme Court has held that this does not mean the condition is done away with, and that Article 370 was not temporary.
It is unclear if the 2019 Order has actually been validly passed.
THE RESOLUTION ON ARTICLE 370: CREATING COMPLICATIONS FOR THE GOVT?
From the text of Amit Shah’s speech in Parliament, it was strange to note that he specifically mentioned that the government intended that Articles 370(2) and 370(3) would be removed, leaving only Article 370 (1) in place, which would also be modified. The text of the presidential order, however, did no such thing.
The confusion seems to have been cleared by the publication in the Rajya Sabha’s Supplementary List of Business of a proposed statutory resolution, which would have the Houses of Parliament recommend a public notification to be issued by the President of India under Article 370(3).
This recommended notification would then state that Article 370(2) and 370(3) would cease to be operative, and that only Article 370(1) would remain in force, in modified form. The modifications essentially reflect what the 2019 order has done, that all provisions of the Constitution of India are applicable without modification to Jammu and Kashmir.
But the language used in the statutory resolution could run the government into trouble. As mentioned earlier, not issuing the presidential order under Article 370(3) was a clever move, as this seemed to avoid the pitfalls of that particular provision and the complications of the Constituent Assembly of J&K. The new interpretation clause would allow the government to pursue the purging of Article 370 at a later time, once a new Legislative Assembly was elected, having already effectively rendered it inoperative by the order.
However, the new move instead shows that the government is trying to interpret the term ‘Legislative Assembly’ as it now reads after the 2019 Order to include the President on the pretext that the State is currently under President’s Rule. This is because no notification can be issued under Article 370(3) as the proposed resolution suggests without a recommendation from the Legislative Assembly.
However, it is difficult to see how a court would accept such circular logic, and it instead casts a negative light on the other interpretation required for the presidential order – that the term “Government of the State” should be construed as including a reference to the Governor as well. Whether this will play a role in the likely challenge in the courts, remains to be seen.
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