: In Article 370 hearing, the original text and spirit count

This article discusses the upcoming hearing in the Supreme Court of India regarding the changes made to Article 370 of the Constitution. it provides context on the amendments made in 2019. The article examines the legal and constitutional aspects of the changes, focusing on the use of a presidential order to modify Article 370.

Key Points 

• The Supreme Court of India will hear oral arguments regarding the changes made to Article 370 of the Constitution.
• The Court will focus on the legality of the decisions made on Article 370, not their consequences. The main question is whether these decisions are in violation of the Constitution.
• The Union government, while making changes to Article 370, relied on Article 367, which deals with the interpretation of the Constitution, to bypass the requirement of State Constituent Assembly's concurrence.
• The petitioners argue that the President's order on Article 370 constitutes a colorable exercise of power and violates the principles of representative democracy, which is a basic feature of the Constitution.
• The Union government contends that the applicability of different provisions of the Constitution to Jammu and Kashmir has been made in the past through presidential orders with the concurrence of the State government.
• The case raises questions about asymmetric federalism in India and the balance of power between the Union and the States. The Supreme Court will have to consider both the original text of Article 370 and the principles of federalism while deciding on its legality.

• The Court will need to ensure fidelity to the moral values and procedural processes embedded in the Indian Constitution while adjudicating the case. The sanctity of the relationship between the Union and the States is at stake.

  How Government has Abrogated Article 370

  1. Article 370 was included in the Indian Constitution as a temporary provision for J&K. 

  2. Articles 370(1)(c) and 370(1)(d) (which are relevant) deal with the applicability of the Indian Constitution to J&K. 

  3. Article 370(1) (c) states that Article 1 and Article 370 of the Constitution shall apply to J&K.

  4. Article 370(1)(d) states that other provisions of the Constitution can be made applicable to J&K with such “modifications as the President may by order specify”.

  5. However Article 370(1)(d) requires that the President secure the concurrence of the J&K government before issuing such an order.

  6. Finally, Article 370(3) states that the President can issue a notification making the whole of Article 370 inoperative if such a recommendation is made to the President by the Constituent Assembly of J&K.

  What the Indian government did on August 5

  1. First, the Presidential Order was issued. The Presidential Order 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. 

  2. The concurrence of J&K government is necessary to affect such a step but since J&K is presently under President’s rule and has no state government, this was effectively dispensed with.

  3. Second, when applying provisions of the Indian Constitution to J&K, the President effected one ‘modification’— to Article 367. 

  4. Article 367 is the interpretation clause of the Constitution. In Article 367, the Presidential Order inserts a new sub-clause (4)(d) which states that the words “Constituent Assembly” in Article 370(3) must be read as “Legislative Assembly of the State”. 

  5. This means that the government has sought to overcome the problem of the Constituent Assembly not having abrogated Article 370 by requiring that “Constituent Assembly” in Article 370(3) be read as the J&K Assembly.

  6. By doing so, it now becomes possible for the J&K Assembly to do what the Constituent Assembly did not i.e. recommend the abrogation of Article 370. 

  7. To be clear, the President has not amended Article 370(3) itself because he does not have the power to do so. He can only modify other provisions of the Constitution when making them applicable to J&K.

  8. Third, applying this new interpretation of Article 370(3), the President could have abrogated Article 370 upon a recommendation to this effect being made by the J&K Assembly. But since J&K is now a Union Territory and is under President’s rule and has no legislative assembly at the moment, it fell upon Parliament to make this recommendation under the newly ‘modified’ Article 370(3). Accordingly, the recommendation to the President abrogate Article 370 was issued by the Home Minister through his Resolution.

  What will Change in Jammu and Kashmir: 

  1. By the Presidential Order of 1994, almost the entire Constitution (including most constitutional amendments) was extended to Jammu and Kashmir. 

• Ninety-four out of the 97 entries in the Union List are today applicable to Jammu and Kashmir as to any other state. 
• Two hundred and sixty out of the 395 Articles of the Constitution have been extended to the state.

• Seven out of the 12 Schedules of the Constitution of India too, have been extended to Jammu and Kashmir.

  2. Going further, through application of recent Presidential order Jammu and Kashmir will:

•  No longer have separate constitution, flag or anthem. 
• The citizens of Jammu and Kashmir will not have permanent residents -they will be citizens of India alone.
• As the new union territory of Jammu and Kashmir will be subject to the Indian Constitution, its citizens will now have the Fundamental Rights. Article 360, which can be used to declare a Financial Emergency, will now also be applicable.
• All laws passed by Parliament will be applicable in Jammu and Kashmir, including the Right to Information Act and the Right to Education Act.
• The Indian Penal Code will replace the Ranbir Penal Code of Jammu and Kashmir.
• Article 35 (A), which originates from the provisions of Article 370 stands null and void. Any Indian citizen from any part of the country can now buy property in Jammu and Kashmir, take a state government job and enjoy scholarships and other government benefits. Children of a woman marrying outside Jammu and Kashmir will not lose property rights.

Reasons for Reorganisation of J&K

1. The Ladakh Division of the State of Jammu and Kashmir is geographically large but sparsely populated, with a difficult terrain, and there has been a long-pending demand of people of Ladakh to give it the status of a Union Territory.
2. The prevailing internal security situation and cross border terrorism in the existing state of Jammu and Kashmir.

Implications

1. Article 370 is discriminatory provision within the Indian constitution, creating different class of citizen by providing special law with respect to permanent residents, employment under the state government, such as acquisition of immovable property in the state and settlement in the state. Further, provisions of Article 370 is discriminatory on the basis of gender, class, caste and place of origin too.
2. Further, 73rd and 74th Amendments to the Constitution could not be applied to J&K due to article 370. After revocation of article 370, Panchayat and Nagar Palika will become constitutional bodies and thus elections could be held at regular interval.
3. The doors to private investment in J&K would be opened, which would in turn increase the potential for development there. 
4. Increased investments would lead to increased job creation and further betterment of socio-Economic infrastructure in the state.
5. Opening of buying of lands would bring in investments from private individuals and multinational companies and give a boost to the local economy.