Legal perspective of revocation of Articles 370 & 35-A
IT has been more than two years, when the Modi government dropped a big bomb in Kashmir with the approval of Indian Parliament to revoke the two important constitutional provisions which are Articles 370 and that 35-A, which give special rights to Indian occupied Jammu and Kashmir.
Article 370 particularly grants the right to hold special status and limited autonomy to Jammu and Kashmir.
Whereas Article 35-A grants authority to the state to define “Permanent resident” and provide special rights which include employment to the people of Jammu and Kashmir.
After the revocation of articles, Jammu and Kashmir has been divided into two states and these states are now under the control of New-Delhi. Many legal experts have raised questions on the validity of this move.
They assert that it is an illegal move to change the “Constituent Assembly” into “Legislative Assembly” using the Governor as proxy in the absence of a Legislative Assembly. Since, J&K got special status in India.
Courts have mentioned in various cases that Article 370 is permanent. The Presidential order regarding the revocation of articles is not only restricted to the Article 370(i) of the Indian Constitution which deals with interpretation and guidelines of the Constitution with reference to the General Causes Act, subject to adaptation and modification made under Article 372.
In short, besides the scope of Article 370(i), Article 367 and Article 372 of Indian Constitution also needs to be examined.
Article 370 has been explained into three sub clauses. In the first sub clause (i) a, it states that Article 238 of Indian Constitution will not be enforced on Jammu and Kashmir.
Whereas Sub clause (i) b states about the power of law making by Parliament which comes under Article 370 is limited to Union List and Concurrent List, which will be done with the consent of Government of Jammu and Kashmir, with reference to the matters mentioned in the instrument of Accession.
While Article 371(i) (b) (ii) states that those matters which are not mentioned in the Instrument of Accession, will be dealt with the consent of Jammu and Kashmir.
All the powers, mentioned above there are requirements of consent of the government of Jammu and Kashmir which are outside the scope of accession instrument.
Therefore, for issuing any proclamation or making any law there is need of consent of Jammu & Kashmir and without consent no presidential order is possible.
Article 370(3) deals with the powers which are given to the President for issuing a notification to the effect of whether Article 370 will apply or not.
But again it has a requirement, it can only be done with the consent and recommendation of the Constituent Assembly.
Some people argue whether the Article 370 is temporary or permanent but in real sense, it makes no difference as the procedure which followed for changes is only with reference to Article 370.
Basically, when the accession instrument was formed, it was believed by people that it would work out for three years.
But now, almost 70 years have passed and the instrument of Accession is still workable. At present there is no contradiction in the procedure relating to the abrogation of Article 370.
The President has no power to amend the clause in the Article 370 without the recommendation of the government of Jammu and Kashmir.
Therefore the Presidential Order dated 05 August is illegal and ultra vires to his power under the Indian Constitution for the reasons mentioned above.
If the Presidential Order of 05 August fails on the same ground, the new Act passed by Parliament regarding Jammu and Kashmir State reorganisation Act also fails as it is against the Constitution of India, and Constitution morality and it is a mala fide exercise of power.
—The writer is contributing columnist, based in Karachi.
