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been repealed, as it stems from Article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can never be repealed or modified as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