As per legal experts, the NDA Government’s clever move to bypass the amendment route to revoke Kashmir’s special status by using the Article 370 itself has two problems that may be up for scrutiny.
Home Minister said the changes would pass ‘every legal scrutiny’, but do they?
In a carefully calculated and stunning move, the BJP government fulfilled its manifesto pledge to remove both Article 35A and Article 370 that gave Jammu and Kashmir its special status. It can be said that the Prime Minister Narendra Modi and Home Minister Amit Shah led NDA Government did its ground work.
The government invoked a provision (Clause 3) under Article 370 to revoke Article 370 from Kashmir.
The move took all and sundry by surprise as many were certain that it was an impossibility owing to the fact that the Supreme Court had upheld the permanency of Article 370 and Article 35A in multiple cases.
The government, in a clever move, invoked a provision (Clause 3) under Article 370 to revoke Article 370 from Kashmir. But two loopholes can end up with legal repercussions in the government’s face.
`How the Government made it happen?
It exercised Clause 3 of Article 370 which gives the President of India the power to revoke J&K’s special status provided by law. Article 370(3) reads, “Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify”
Here's a True Copy of Jammu & Kashmir’s Instrument of Accession | Read it to understand the backstory to Art 370. That Article is the legal glue that binds this instrument of accession to Article 1 of the Constitution. It's criminal to gut this provision! https://t.co/QJsFLfKTrS— Siddharth (@svaradarajan) August 5, 2019
The government did not actually scrap the Article, which requires a constitutional amendment under Article 368. Instead, it cleverly bypassed the long-drawn amendment process by leveraging the power given to the President by the Article 370 itself (Clause 3) to make it ineffective.
Instead of actually scrapping the Article, which requires a constitutional amendment under Article 368, the government bypassed the route with the Presidential Order as per a provision of Article 370 itself.
The provision allowed the soon-to be-erstwhile-law to be changed through by a presidential order, with concurrence from the constituent assembly of Jammu and Kashmir. However, lawyers and legal analysts opine that there could be legal complications which might hamper the government’s resolution for Kashmir.
Problem 1: Jammu and Kashmir Constituent Assembly was dissolved in 1956
Under the provision used by the Indian Government, any presidential order has to be concurred by the J&K Constituent Assembly. However, the constituent assembly of J&K was dissolved way back in 1956.
Bifurcation of J&K requires consent of the elected assembly of the State. Also any amendment thru 370 to the subjects the Union can deal with in J&K, also requires consent of the J&K assembly. Can't be done by just President or Governor's consent. Unconstitutional— Prashant Bhushan (@pbhushan1) August 5, 2019
To overcome this legal implication, the government altered another constitutional article, which changes references in Article 370 of ‘constituent assembly of the state’ to ‘legislative assembly of the state’. As per experts, the legality of the move can be questioned in court.
Problem 2: Government says all changes agreed by the Jammu and Kashmir State Government
The government said that all changes were agreed to by the J&K government. But the state has been under the centre’s rule since BJP pulled out of the coalition government last year leading to dissolution of the Jammu and Kashmir Legislative Assembly on 21 November 2018 by the Governor, which called for fresh elections within a period of 6 months.
The @AmitShah announcement revoking #Article370 says it has the consent of the Jammu and Kashmir government. But there is no elected government or assembly in place. So consent is that of the Governor. What happens when a new assembly is elected? All sorts of questions persist— barkha dutt (@BDUTT) August 5, 2019
Some lawyers believe the lack of government in Jammu and Kashmir could pose a legality issue to the Government’s resolve. The state is under presidential rule and the changes have been ratified by the governor on behalf of the state government.
A senior lawyer opines, “How did the government of Jammu and Kashmir concur with the changes if the state has been under presidential rule for a year now?”
Senior Supreme Court advocate Akhil Sibal told Reuters, “If there is president’s rule, then how does that work? Does it fulfil the requirement? That to my mind would be the legal faultline.” A similar question is raised by Malavika Prasad, a constitutional lawyer, “How did the government of Jammu and Kashmir concur with the changes if the state has been under presidential rule for a year now?”
What works in Indian Government’s favour?
What falls in favour of the NDA Government is that there is no direct breach of any domestic law, or violation of any international treaty obligation. This has left Pakistan understandably isolated. Major world powers like China, Russia, US and EU are muted on the front.
At some law firm in Delhi, 3-4 liberals might have spent entire night drafting the petition to be filed against #Article370 changes.— Ashu (@muglikar_) August 6, 2019
Imagine so much hardwork and yet they will achieve nothing via SC.
Studied the Article's, some judgments and steps taken: its a water tight move
India had informed global powers of upcoming developments, which is proved by the fact that US, UK, Germany, Australia and Israel issued advisories to their citizens in Kashmir to leave immediately. Modi’s meeting with US President Trump at G20 Summit in Osaka might have pondered on the future plan of the Indian Government for Kashmir, eliciting Trump’s confusing mediation tweets on Kashmir that were in the news recently.
Process of erosion complete
While the opposition leaders accuse the government’s move as unconstitutional and undemocratic, in legality, it follows previous amendments to Article 370. Over the years, various Presidential Orders have diluted provisions in the Article 370.
Over the years, various Presidential Orders have diluted provisions in the Article 370.
While the earlier governments toed the line in their amendments, this government has used the same route to end the special status of Kashmir once and for all. In 1964, India’s first Prime Minister Jawahar Lal Nehru said that the Article 370 is a part of a ‘certain transitional provisional arrangement’ and not a permanent part of the constitution’.
Is it illegal? Unconstitutional? Maybe it really is. Maybe it will be challenged in SC.— meghnad (@Memeghnad) August 6, 2019
But, at this point of time, the noise of chest beating is much much louder than the people furiously leafing through the constitution & trying to figure out what is going on.#Article370
He said, “It has been eroded. I repeat that it is fully integrated. So, we feel that this process of gradual erosion of Article 370 is going on. We should allow it to go on. That process is continuing.” The process of erosion that Nehru mentioned in 1964 has met its end with the BJP Government’s decision to make the Article 370 inoperative in its historical move.