Recently, BJP government Introduced a Presidential order named – The Constitution (Application to Jammu And Kashmir) Order, 2019 (C.O. 272) which automatically scraps the Article 35A and nullify Article 370. The opposition protested against it calling the order as unconstitutional. But was it really unconstitutional? It wasn’t and here’s how.
Article 370 is not really removed from the constitution, it is still very much there. It’s just that, now, it doesn’t apply to the state of Jammu and Kashmir anymore. Let me explain how.
What does Article 370 in the constitution say –
Article 370 was always a temporary article, removal of which was always under President’s power under section 3 of the same article. However, instead of using that power the BJP government instead used the section 1, clause b, sub-clause ii, of the same article, which states that the “President may by order specify any changes to be applicable to the state in concurrence with the state government” along with the clause d, in the same section which states that the President may specify any exceptions and modifications in the provisions of the constitution that shall apply to the state of Jammu and Kashmir, and got The Constitution (Application to Jammu And Kashmir) Order, 2019 (C.O. 272) approved by the President in concurrence with the government of the state of Jammu and Kashmir, i.e. the Governor.
Initially, the government of the state was the constituent assembly which dissolved itself in the year 1956 but even before that, a Presidential Order (Ministry of Law Order No. C.O. 44, dated the 15th November 1952) was passed stating that the Government will mean the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the “Sadar-I-Riyasat” of Jammu and Kashmir. Later, in 1965, the term “Sadar-I-Riyasat” was changed to “Governor” under the Constitution of Jammu and Kashmir (Amendment) Act, 1965. Now, since we all know that the state is currently ruled by the President, in this case, the Governor of the state acts as the government and his concurrence is perfectly legal to pass such an order.
What does this Presidential Order mean?
If you look at section 1 (2) of The Constitution (Application to Jammu And Kashmir) Order, 2019 (C.O. 272), it states that the order shall come into force at once and supersede the Constitution (Application to Jammu and Kashmir) Order, 1954, as amended from time to time. This basically means that this order will be effective immediately and replace the earlier order of 1954. It does not require a parliament debate or vote and the President’s order is enough to bring it to effect.
The section 2 of the same order states, “All the provisions of the Constitution, as amended from time to time, shall apply in relation to the state of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows”. Here the President used the sub-clause “d” of Section 1 of Article 370 and made a modification by applying all the provisions of the Constitution of India to the state of Jammu and Kashmir, which automatically nullifies Article 35A and the special status of Jammu and Kashmir. In other words, the constitution that applies to the rest of the country will now apply to Jammu and Kashmir as well. So this order did not really scrap Article 370 but rendered it ineffective.
Section 3 of Article 370 states that the President may, by public notification, declare that this article shall cease to be operative with the recommendation of the constituent assembly of the state.
The constituent assembly was formed to formulate the separate constitution for Jammu and Kashmir and Article 370 was there to selectively apply the Indian constitution till the time their constitution was ready. The Part XXI of the constitution clearly states it as a Temporary and Transitional. However, after the formulation of the constitution of Jammu and Kashmir, the constituent assembly was dissolved but Article 370 wasn’t abolished as it should have been.
To fix this situation, the President’s order brought some amendments in Article 367. This article had only 3 sections and now a 4th section has been added. These are –
- According to the Section 4, clause a, of the Presidential order, any reference to the Constitution or to its provisions of India shall be understood as the constitution or provisions applicable to the state of Jammu and Kashmir.
- Section 4, clause b states, any references made to the person for the time being recognized by the President on the recommendation of the Legislative assembly of Jammu and Kashmir, acting on the advice of the council of ministers, for the time being, shall now be understood as the “Governor” of Jammu and Kashmir. This was already present in section 1 of Article 370 (Ministry of Law Order No. C.O. 44, dated the 15th November 1952) but now has been formally added to Article 367.
- Section 4, clause c states, references made to the government of Jammu and Kashmir shall be understood as a reference to the Governor of the said state acting on the advice of the council of ministers. This explanation was also present in section 1 of Article 370 but now has been formally added to section 367.
- Section4, clause d states, that the condition of the “Constituent Assembly” as mentioned in Section 2 and 3 of Article 370 shall now be replaced by “Legislative Assembly”. This change paves the path for the removal of Article 370 if the President decides, with the approval of the Legislative Assembly instead of Constituent Assembly of the state.
Hope this post helped you understand the legality of the Presidential Order. If you have any questions, please drop a comment and I will certainly try and answer them best to my knowledge and capability.