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SOURCE: SUBHENDU SAHOO/ FOR MY TAKE / IDRW.ORG

When India gained Independence in 1947, the pre 1947 princely states of undivided India namely Hyderabad, Jammu and Kashmir (J&K), Madhya Bharat, Mysore, Patiala and East Punjab States Union (PEPSU), Rajasthan, Saurashtra, Travancore-Cochin, and Vindhya Pradesh became a part of Dominion of India, 1947 and later Republic of India, 1950 when India became republic under the Constitution of Republic of India which was adopted on 26 November 1949 and became effective on 26 January 1950.

These 9 princely states then came to be known as ‘B States’, all governed / administered under Article 238. However in 1956, this Article 238 through 7th Constitutional Amendment was repealed. The objective is to convert these B states / Princely states into full fledged states so that Part VI of the constitution could be applied on them which deals with various executive power of the state. With the repealing of Article 238 in 1956, J&K too was among those 9 ‘B States’ which was converted from a Princely state to a full fledged state thus becoming an ‘internal matter’ of India in 1956 itself. This complemented the Instrument of Accession, 1947 which firmly established India’s ownership right over the J&K.

Now of these 9 ‘B States’, J&K was given a special status under Article 370 as per which J&K will have its own constituent assembly, its own constitution, its own flag, its own Government and special autonomy over the internal administration of the state without the interference from the Center except in areas of defence, finance, foreign affairs and communications.

This Article 370 was intended to be temporary until J&K’s constitution was drafted i.e J&K was give some time to draft its own Constitution. Now to draft the constitution of the J&K, constituent assembly of J&K was formed in 1951. The J&K constituent assembly was tasked to formulate the J&K Constitution. It was during this J&K constitution formulation period i.e from 1951 to 1957, the President in concurrence of the Government of J&K (in exercise of the powers conferred by clause (1) of Article 370) passed the Presidential order on 14 May 1954 which specified the application of various constitutional provisions of the Constitution of India / Republic of India to the state of J&K that includes civil, legislative, administrative, judicial, executive & territorial provisions. With this the Article 370 became a part of & integrated with the Constitution of India (1950) in 1954.

Based on the Presidential order, the J&K constituent assembly then formulated the J&K constitution, adopted the same on 17 November 1956, and which thereafter came into effect on 26 January 1957. Now when the constitution of the J&K formulation task was over, the J&K constituent assembly based on the 17 November 1956 resolution moved by Syed Mir Qasim (responsible for drafting the Kashmiri constitution & later becoming the Chief Minister of Kashmir from 1971 to 1975) dissolved itself on 26 January 1957 but without making any recommendation on either amendment or abrogation of the J&K’s special status formed under Article 370. With the absence of any recommendation, the Article 370’s future status remained in a debate & subjected to interpretations. It also left behind a vital Question which assumed prominence wrt Article 370’s revocation, many wondered whether it is permanent or temporary ? Some are of the view that Article 370 is permanent while some say it’s temporary.

Those who say its permanent derives their opinion based on past Supreme Court judgment ruling that Article 370 is permanent and with the belief that since the Constituent Assembly of J&K before its dissolution didn’t recommended the Article 370’s amendment or abrogation, the Article 370 stands permanent while those who are of the view that it is not permanent but temporary counter argue that with the absence of any recommendation, on what basis the Article 370’s status be claimed permanent and not temporary ? Now these are more about differences in opinions rather than of legality.

As such the only way out to settle this debate is to hold voting’s where majority wins. This is actually what the Government of India did when the Parliament voted on the Presidential Decree on Article 370’s abrogation and the result of which saw the revocation of the special status for the J&K. Can the Supreme Court override the Presidential orders on Article 370 revocation ? PIL has been filed with Supreme Court against its abrogation but it seems the PM Modi Govt did its calculation well in advance, perhaps including legal brainstorming. Notwithstanding, keeping in view the Parliament’s approval, the Supreme Court is unlikely to go against the Presidential order.

PM Modi Govt Scrapped Article 370 but are Constitutional procedures followed ?

Article 370 empowers the Constituent Assembly of the J&K to recommend the abrogation of Article 370 to the President under sub clause (1)(d) of Article 370 i.e it requires the President to secure an agreement of the J&K government before issuing such an order. The J&K government however is no longer active with the dissolution of J&K legislative assembly by the Governor on 21 November 2018. This is what probably made the President to issue a decree on 5 August 2019 wrt Article 370 revocation. The Presidential order issued uses Article 370(1)(d) to apply all provisions of the Indian Constitution (other than Articles 1 and 370 – which are already applicable) to J&K.

This means the President being in charge of J&K governance recommends itself at the centre albeit officially through the governor at the state to apply the Constitution Of India / Republic of India (1950) to J&K sans already applicable Article 1 & Article 370, (Clause (4)(c)) of Presidential order 2019 implies that. With this the Constitution of India and all its provisions has superseded the Article 370 which until now remained the sole governance article of J&K except in the matter of defence, foreign policy, finance & communications. (Clause (4)((a)) of Presidential Order 2019 implies that. This has automatically ticked out the Article 35(a).

Next under sub clause (3) of Article 370 it requires the President to secure the concurrence of the Constituent Assembly of the J&K before issuing such an order. The Constituent Assembly of the J&K however is no longer active and was dissolved on 26 January 1957. This means with the absence of Constituent Assembly of the J&K, the President has to secure the agreement of Legislative Assembly of J&K, (Clause (4)((d)) of Presidential order 2019 issued on 5 august 2019 implies that which reads “ in proviso to clause (3) of article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State” but since the J&K is presently under President’s rule and no legislative assembly is in place, this requirement was nullified.

Thus satisfying both the conditions, Article 370 was finally scrapped through a Presidential decree & voting’s in both the houses of the Parliament.

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