IT has been over two years since the Indian government revoked important constitutional provisions under Article 370 and Article 35A with the approval of the Indian parliament. While Pakistan and its people have been vociferous in their condemnation of the illegality of the action taken by the Indian government, there is a need for a better legal understanding of the issues involved.
Article 370 of the Indian constitution granted the right to hold special status and limited autonomy to occupied Jammu and Kashmir, while Article 35A granted authority to the state to define ‘permanent resident’ and provide special rights which included employment to the people of the occupied state.
After the revocation of the said articles, the occupied valley 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 a ‘Legislative Assembly’ by using the governor as the proxy.
Since the valley got special status in India, the courts have declared in various cases that Article 370 is permanent. The presidential order regarding the revocation of the articles was only restricted to 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), Articles 367 and 372 of the Indian constitution also need to be examined.
Article 370 has been explained into three sub-clauses. The sub-clause (i)a states that Article 238 of the Indian constitution will not be enforced on Jammu and Kashmir, whereas sub-clause (i)b clarifies that the power of law-making by parliament, which comes under Article 370, is limited to the union list and the concurrent list, which means the consent of the government of Jammu and Kashmir is essential with reference to the matters mentioned in the instrument of accession.
The Article and sub-clauses 371(i) (b) (ii) state that matters that are not mentioned in the instrument of accession will be dealt with in consultation and with the consent of Jammu and Kashmir. For all the powers mentioned above, there are requirements of consent of the government of Jammu and Kashmir which are outside the scope of the accession instrument. Therefore, for issuing any proclamation or making any law, there is a need for consent of Jammu and Kashmir, and no presidential order is possible without such consent.
Article 370(3) deals with powers given to the president for issuing a notification about whether or not Article 370 will apply. But it can only be done with the consent and recommendation of the Constituent Assembly. Some people argue over whether Article 370 is temporary or permanent. In the real sense, it makes no difference as the procedure that was followed for the changes is only with reference to Article 370.
Basically, when the accession instrument was formed, it was believed by the people that it would work 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 Article 370 without the recommendation of the government of Jammu and Kashmir. Therefore, the presidential order of Aug 5, 2019, was, and remains, illegal and ultra vires. If the presidential order fails on this ground, the subsequent act passed by parliament will also fail as it is against the Indian constitution and constitutional morality as well as a mala fide exercise of power.
Published in Dawn, October 22nd, 2021