India Today – August 19, 2019

20 INDIA TODAY AUGUST 19, 2019

The Big Story / J&K

to Jammu and Kashmir) Order, 1954.
The presidential order, which comes
into effect immediately, has removed
the special status accorded to the state
of J&K under Article 370 in Part XXI
(Temporary, Transitional and Special
Provisions) of the Constitution of In­
dia. By extension, Article 35A has also
been repealed, as it stems from Article
370, having been introduced through a
presidential order in 1954.
But can Article 370, which has re­
mained the framework of legislative
and executive governance of J&K for
70 years, be made inoperative by just
a presidential order? The Modi gover­
n ment anticipated such a question
and the certainty of this promulgation
getting challenged in court. It did its
homework before Shah moved this res­
olution. The third clause of Article 370
gave the President of India the power to
declare the article inoperative or opera­
tive with exceptions and modifications,
subject to obtaining prior recommen­
dation of the Constituent Assembly of
the state of J&K. The Constituent As­
sembly of J&K, after drafting the state’s
constitution, dissolved itself in 1956.
This led to the opinion that Article370
can never be repealed or modified as
the Constituent Assembly did not exist
anymore. The Supreme Court, in April
2018, said though the head­note used
the word ‘temporary’, Article 370 was
not temporary. In a 1969 case as well,
the apex court had refused to accept
Article 370 as temporary and said it
“has never ceased to be operative”.
To circumvent this roadblock, the
presidential order first adds a new clause
to Article 367, which deals with inter­
pretation in respect of J&K. It replaces
‘Constituent Assembly of the State’ with
‘Legislative Assembly of the State’. As
the assembly is in suspension, the order
says that any reference to the legislative
assembly will be construed to be a refer­
ence to the governor. The governor is an
appointee of the Centre and, therefore,
Parliament now stands for legislative as­
sembly. “Legal opinions were taken and
the process is in order. Currently, Parlia­
ment is performing the role of the state
assembly,” says Jitendra Singh, Union

ministerofstateforthePMO.

Constitutionalexpertsaredivided

overthelegalvalidityofthismanoeu­

vring.“Itisutterlyandpalpablyuncon­

stitutional.Afterthedissolutionofthe

ConstituentAssemblyin1956,thepow­

erofabrogationofArticle 370 vanished,”

saysA.G.Noorani.However,Supreme

CourtadvocateRakesh

DwivediandShreya

Mishra,assistantpro­

fessoroflawattheMa­

harashtraNationalLaw

University,believeany

pleaagainstthegov­

ernment’sdecisionwill

notbesuccessfulasthe

presidentialorderdoes

nothavetechnicalflaws.

Formersecretarygen­

eraloftheLokSabha,

SubhashKashyap,too

subscribestothisview:

“Asthestateisundercentralrule,Par­

liamentcanbeinterpretedasthelegis­

latureofJammuandKashmir.So,no

concurrenceisrequiredfromthestate

governmenttomakechanges.”

Shahhasalsomovedastatutory

resolutionintheRajyaSabharecom­

mendingthatthePresidentissuea

notification—usingClause 3 ofArticle

370—todeclarethatallclausesofAr­

ticle 370 wouldceasetobeoperative

andthatallprovisionsoftheIndian

Constitutionwouldapplytothestateof

J&K.This,ineffect,rendersArticle 370

nullandvoidforallpracticalpurposes,

evenifitisnotrepealed.

W

hile the government

seems to have tackled

the ‘consent’ of the non­

existent Constituent

Ass embly of Jammu

and Kashmir, constitutional experts

have questioned the validity of inserting

a new clause in Article 367 as it amounts

to a constitutional amendment. It vio­

lates Article 368, which mentions that

an amendment to the Constitution can

be done by introducing a bill in Parlia­

ment and getting it passed in both the

houses by a majority of two­third of the

members present and voting. “Rather

than anything relating to either Article

370 or the bifurcation of the state of

Jammu and Kashmir, it is this move

that really seems to call the presidential

notification into question and appears

to be the cardinal legal flaw. How can

Article 367 be amended to include a

new provision without a constitutional

amendment?” asked

Madhav Khosla, a ju­

nior fellow at the Har­

vard Society of Fellows,

in a column.

The biggest impact,

however, is likely to be

on the law and order sit­

uation of J&K as policing

goes to the Centre. With

the passage of the Un­

lawful Activities (Pre­

vention) Amendment

Bill, the central govern­

ment will go for a mas­

sive crackdown on separatist elements,

who will no more have the cover of state

laws. At the same time, Pakistan­spon­

sored terror may seek to take advan tage

of the resentment of ordinary Kashmiris

against the government’s move to strip

them of their relative autonomy via the

effective dilution of Article 370.

In response to the opposition’s

criticism that the move was against

the spirit of the Constitution and will

fuel large­scale violence, Shah sought

to directly reach out to the youth of

Kashmir. “Give us five years, and we

will make Jammu and Kashmir the

most developed state in the country... I

want to tell the youth of Kashmir Val­

ley: have faith in the Narendra Modi

government. Nothing negative will

happen,” he said in Parliament.

But convincing the people of Kash­

mir to trust the home minister’s words

will be no easy task. For now, given the

massive deployment of troops and the

incarceration of Kashmiri leaders, the

silence of the Valley is deafening. But

this enforced silence cannot be taken

as a given or eternal. August 5, 2019 is

a day that will live on in Indian history.

Exactly what it will be remembered for

remains to be seen. n

with Shwweta Punj

The biggest

impact is likely

to be on the law

and order

situation in J&K

as policing goes

to the central

government