Article 370 made inoperative; By an Amendment by Presidential Order
President Ram Nath Kovind in “concurrence” with the “Jammu and Kashmir government” promulgated Constitution (Application to Jammu and Kashmir) Order, 2019 on Monday, August 5, 2019 which states that provisions of the Indian Constitution are applicable in the state. The President issued Constitution (Application to Jammu and Kashmir) Order, 2019 which comes into force “at once”, and shall “supersede the Constitution (Application to Jammu and Kashmir) Order, 1954“.“All the provisions of the Constitution” shall apply in relation to the state of Jammu and Kashmir, it said.
Any lay person would wonder about the usage of the words ; 'concurrence', 'Jammu and Kashmir government' used in the above Presidential order as we have no government as of now in the state. The state of J&K has been under Governor’s rule.
President however could issue the Constitution (Application to Jammu & Kashmir) Order, 2019 by which Article 370 has been made inoperative that too “with the concurrence of the Jammu and Kashmir government” because of the amendment that was crept in to Article 367 by this very Presidential Order.
The order has added a clause to Article 367 of the constitution so far as the state of J &K is concerned, which reads as under:
“(4) For the purposes of this Constitution as it applies in relation to the state of Jammu and Kashmir-
(a) references to this Constitution or to the provisions thereof shall be construed as reference to the Constitution or the provisions thereof as applied in relation to the said State;
(b) references to the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i- Riyasat of Jammu and Kashmir, acting on the advice of the Councils of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir;
(c) references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers; and
(d) in the proviso to clause (3) 0f Article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State.”
One thing that has been baffling me since yesterday is almost complete silence, barring a few muted voices, of our legal eagles on this aspect on various television debates where this move is being hailed by most of them as historic and bold, which in any case this is. I understand this surreptitious amendment to Article 367 is only with regard to the erstwhile (by the time this write up would see the light of the day the reorganisation bill would have become an Act) State of J&K but nonetheless it amounts to amendment of Article 367 of the Constitution of India. As per the mandate of Article 368 of the Constitution, an amendment to the constitution can only be brought about by following the procedure laid down in Article 368.
I do not wish to on purpose speak on the merit of scrapping of Article 370 as that is a separate discussion and would need thorough understanding of the historical context, terms of Instrument of Accession etc. and is being discussed by virtually everyone who knows something about the turbulent past of the State and its politics. One can understand the fact of Article 370 being a temporary or a transitional provision but even if that had to be done away with, the procedure had to be duly followed, is my only submission since we call ourselves a constitutional democracy.
Misuse of Article 356 is something that we have been a witness to in the past also but this time we have seen it being misused in a way that could and should make all states shudder, whether they have special status or not.
It is understandable that Article 370 could be made inoperative by a notification issued by the President of India, in view of its clause (3) which reads;
(3) 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:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
The proviso to this clause puts a condition i.e. recommendation of the Constituent Assembly of the state. In order to meet this constitutional requirement, the government has amended Article 367 and has inserted, as mentioned above, a clause numbered as (4) with 4 sub clauses with respect to the state of J&K.
As far as plain reading of Article 368, which deals with amendment of constitution goes, amendment means any addition, variation or repeal . In this case a clause has been added, therefore as per my understanding an amendment has taken place therefore procedure in the subsequent section of Article 368 had to be followed. However, in this case that procedure has been completely ignored. I am sure the government would have their defence ready in this regard and I can’t seem to wait to know that. A clever way to get out of the mandate of the constitution without violating its spirit would be indeed enlightening for all students of constitutional law. A part of Article 368 is reproduced herein below;
368(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.]
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, 4[it shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill:
It might be a bold step but it has filled me with fear, fear for my legal and also constitutionally guaranteed fundamental rights, fear for the very existence of my state as in province , fear for my identity and what I stand for. I fear because I witnessed that the constitutional mandate and spirit can be subverted, brutalised by brute majority. The constitutional safeguards can be consigned to the bin of history by brandishing numbers and circumventing the norms and established precedents and procedures. Yes, it can be challenged in the court of law which I am sure it shall be but the faith of the law-abiding people and all those who understand how system works has suffered an irreparable loss. To me all the venerable concepts of constitutional safeguards, constitutional democracy, due process of law and rule of law sound hollow.
