Just 2 years back, today Mr. Amit Shah moved resolutions to abrogate Article 370. In this piece we will discuss the step by step planning and the legal aspects of the abrogation.
We will discuss the below aspects:
- Brief introduction to erstwhile Article 370.
- Why it took so long to repeal it?
- Step-by-step analysis of the plan to abrogate it.
Article 370 lies in Part XXI (“Temporary, Transient and Special provisions”) of Indian Constitution. The “Special” word was not present when 370 was created. So, it was very clear in the Constituent Assembly, since J&K has suffered Pak atrocities, there has been a war in J&K, Article 370 is just a temporary provision and will be abrogated soon.
How was article 370 structured?
Article 370 had 3 clauses.
- 370(1) restricted the applicability of Indian Constitution and India laws in J&K. 370(1).b required consultation with the J&K State Govt before applying any law made by Parliament. 370(1).d required the concurrence of State Govt for applying any provision of the Constitution in J&K. That’s why we see, though other provisions like say jurisdiction of Supreme Court, Election Commission etc. got extended all over India from 1950, but not in J&K for a long time.
- 370(2) made it implicitly clear that J&K will have its own constitution.
- 370(3) spoke about the abrogation. It mentioned that President can abrogate 370 after the recommendation of Constituent assembly of J&K. The Constituent Assembly was created to draft the constitution of J&K and was dissolved after the J&K constitution was written(in 1957) without abrogating 370.
- Since constituent Assembly dissolved itself w/o recommending the abrogation – made 370 a permanent feature. President can’t abrogate 370 w/o recommendation from the constituent Assembly which doesn’t exist anymore.
What were the side effects of having Article 370? They were many, let list a couple.
- Government framed laws like POCA, PMLA etc. to stop corruption and Black Money and they got applied all over India except J&K. With lack of such laws corruption became rampant in J&K.
- Part IX and IXA in Indian Constitution(in 73rd/74th amendments) made provisions for Panchayats and Municipalities. These never got applied to J&K due to which development suffered. Many of the work like street lighting, roads are done by the Local bodies only.
What was the plan for Abrogation? Lets go step by step.
- The planning started from the day 2016 J&K assembly results were announced where no single party could form Govt. Hence BJP and PDP joined hands to formed Govt. BJP has been criticized for joining hands with anti-India PDP. But please note, the Governance in J&K was vastly different from rest of Indian states due to Article 370. Hence, BJP had to get get to Govt to understand the nuances of J&K Governance.
- Mufti Muhammad Sayeed became the CM of J&K. He was old and died within 2 years. His daughter wanted to rule, but she did not have the stature of her father and no party could formed the govt.
- Using article 356 president’s rule is imposed in Dec 2018 and again extended in June 2019. Point to note here: Conforming with Article 356(1).b,powers of J&K Legislative assembly were transferred to Parliament. Please keep in mind, this is a crucial step in the entire episode.
What happens on 5th/6th Aug 2019? What Amit Shah does in Parliament?
- Since, there is no Council of Ministers in J&K, Governor is the Govt.
- Amit Shah first moves a resolution to amend Article 367 as far as applicability to J&K is concerned. Article 367 is the “interpretation” clause in our constitution.
- Article 370 gives power to president to make modifications/exceptions when applying any part of the constitution in J&K after concurrence of J&K Govt. Who is J&K Govt now – The Governor(satyapal malik gave his concurrence).
- Using the powers of 370, In Article 367, it was added “Constituent Assembly” mentioned in 370(3) shall be read as “J&K Legislative assembly”. And president approved it.
- When President’s rule was imposed, the order transferred role of J&K Legislative assembly to the Parliament.
- Due to #4 and #5 above, the powers of Constituent Assembly were transferred to Parliament. Constituent Assembly = Legislative assembly(#4) & Legislative assembly = Parliament (#5) => Parliament = Constituent Assembly.
- And Amit Shah then moved the second resolution: which read all the provisions of Article 370 will become ineffective and Article 370 will be replaced by few lines which simply says that entire constitution will apply to J&K.
- President signs the resolution and Article 370 is gone.
- In nutshell 370(1).d was used to make changes in 367, and then apply it back to 370.
You may have a query on Article 35A, how it was removed? Article 35A was added by a Presidential Order in 1954 using powers of 370. In the first resolution which Shah moved (to make changes in 367), it mentioned that the earlier (1954)Presidential Order will be void, which meant 35A is gone.
After the special status lost, Parliament has powers to alter boundary of any state. It then used the powers (Article 3) to separate out J&K and Ladakh and make them UTs.
Will any objection stand any supreme court?
I think no. All the actions are under the preview of the constitutional framework.
- A resolution moved by Parliament and approved by President, enabled the J&K constituent assembly to be interpreted as J&K Legislative Assembly.
- President’s rule (imposed several months back) transferred the power of J&K legislature to Parliament. So, Parliament = J&K Constituent Assembly.
- Parliament used the powers of 370(3) to destroy 370 and replaced 370 (with 4-5 lines) saying that the entire constitution will apply on J&K.
- And since 35A was passed just by a Presidential Order in 1954, President revoked the 1954 Order and 35A is gone.
- With entire constitution applicable on J&K, Parliament using its powers (Article 3)bifurcated J&K to 2 UTs.
Sounds simple, right? Every idea is simple when explained. But it must have been ingenious of the person to have come up with such ideas which will stand SC scrutiny. SC judges understand this and hearings have not yet started.
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