Why amendment of Article 370 is unilateral, undemocratic and unconstitutional

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Article 370 Amended by Modi Government

The attack on Article 370 – the most contentious and sensitive article of the Constitution of India – was complete when the Modi-government on Monday, August 5, 2019 introduced in the Parliament a draft resolution recommending to the President its abrogation along with a bill to reorganize the state of Jammu and Kashmir. It did not give the MPs adequate time to study and critique the proposals.

This finally explained the puzzle behind the government’s move to put several mainstream political leaders of the state under house arrest at midnight, suspending mobile and internet services and imposing curfew-like restrictions in several parts of the state after cancelling the Amarnath Yatra.

Notably, the conditions under which Jammu and Kashmir acceded to India had led to the formation of Article 370 of the Constitution of India, which bestowed a special status on the state. It limited the Centre’s ability to enact laws on the subjects apart from those acceded to India by the erstwhile Kingdom. This was a temporary provision in the Constitution to govern the state’s relationship with the rest of the Union till such time as the Constituent Assembly of Jammu and Kashmir met to determine the exact nature of the relationship.

Eventually, the Constituent Assembly of Jammu and Kashmir enacted the Constitution of Jammu and Kashmir, which accepted the state’s position as an integral part of India while retaining the special status provided under Article 370. It placed a bar on the future Legislative Assembly from interfering with the constitutional relationship between the state and the Union.

The special constitutional status of the state is an example of asymmetrical federalism in India for it is very much possible to be an integral unit of the Union while retaining special powers.

In fact, Article 370 (3) states that the article can cease to operate if the President issues a notification to this effect, provided the recommendation to make it inoperative is obtained from the Constituent Assembly of the state. The latter requirement exists so that the residents of the state can determine the nature of their status in the Union. But the President invoked modification powers under Article 370 by issuing the Constitution (Application to Jammu and Kashmir) Order, 2019 to substitute the Constituent Assembly of the state with the Legislative Assembly of the state, thereby removing the constitutional requirement to convene a newly elected Constituent Assembly to determine the future of Article 370.

Since President’s rule under Article 356 is in operation in Jammu and Kashmir, the government has argued that Parliament can act as the Legislative Assembly of Jammu and Kashmir while recommending the abrogation of Article 370, thereby meeting the Article 370 (3) requirement.

The presidential order substituting the term “Constituent Assembly” with the term “Legislative Assembly” appears void as it modifies the text of Article 370, without meeting the requirement under Article 370 (3). Thus, the resolution placed in the Parliament of India in furtherance of the presidential order, recommending the deletion of Article 370, itself looks unconstitutional. The powers of the Legislative Assembly as provided under Article 370 of the Constitution of India and under the Constitution of Jammu and Kashmir cannot be interfered with as long as the “special status” of the state continues to stand. Therefore, the Jammu and Kashmir Reorganization Bill, 2019 which bifurcates the state into two Union Territories, is unconstitutional as Article 370 has not ceased to operate as the government failed to satisfy the requirements under Article 370 (3).

Questions are already being asked over the government move to amend Article 370 through the provisions of the same article besides the presidential decree that ignored the requirement of getting the approval of the Constituent Assembly of Jammu and Kashmir and the way the draft resolution was brought to the Parliament without prior notice to its members.

The government’s decision to dispense with the special status of the state could not have come at a worse time when the region is steeped in alienation. One can only hope and pray that this does not encourage the bullet over the ballot in the Kashmir Valley in the days to come.

 

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