The Narendra Modi government created history yesterday by introducing a presidential order, which has effectively scrapped the Article 35A of the constitution, and rendered the Article 370 ineffective. But as the single page order published in the Gazette of India does not mention anything about abolishing these two constitutional provisions giving special status to Jammu and Kashmir, this has led to widespread confusion about what has actually happened. Here is an attempt to explain the Constitution (Application to Jammu And Kashmir) Order, 2019 issued yesterday.
Let’s fist take Article 35A, which is completely gone after the order. The Article 35A, which gives the state the right to determine who is a permanent resident of the state, was not inserted into the constitution by an amendment passed by the parliament. It was inserted by the President in the constitution by issuing a similar order, using the powers granted to the president by the Article 370 of the constitution.
The Article 370 says that all the provisions of the Constitution of India do not apply to the state of Jammu and Kashmir. It defines the provisions that apply to the state. Section (1)(b)(ii) of the Article 370 says that President may by order specify any matter to be applicable to the state, with the concurrence of the state government. And Section (1)(d) of the same article states that the president can specify any exceptions and modifications to any provision of the constitution which will apply to the state.
Although the Article 370(1)(d) says that the President can modify an existing provision of the constitution, in 1954, it was interpreted as the President also having the power to insert new provision also, and the Article 35A was inserted in the constitution by the Constitution (Application to Jammu And Kashmir) Order, 2019 issued by the President.
Now the section 1(2) of the order issued yesterday says “It shall come into force at once, and shall thereupon supersede the Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time”. This means this new order supersedes the 1954 order in its entirety, and all provisions made under the 1954 ordfer stands abolished, which includes the Article 35A. As Article 35A was not inserted by an amendment made by parliament, this should pass legal scrutiny, as it means one presidential order has been replaced with another. The 1954 itself had replaced a 1952 order, which in turn had replaced an order issued in 1950.
Now coming to Article 370, technically it has not been abolished, it remains in the book. Let’s take a look at this Article in brief. The first provision of this article says Article 238 does not apply to Jammu and Kashmir, but that article has been abolished long ago, so its redundant. As per The Instrument of Accession of Jammu and Kashmir, any matter other than defence, foreign affairs and communication needs concurrence of the state government to be applicable for the state. And the Article 370(1)(b) states the President will specify the matters which will be applicable in the state, in consultation with the state government. After 1954, several Presidential orders have been issued specifying various laws that become applicable in Jammu and Kashmir. Now, the current order is also similar in that respect, but instead of mentioning a list of provisions, it simply says that the entire Constitution of India will be applicable to the Jammu and Kashmir.
The section 2 of the Presidential order of 2019 says, all the provisions of the Constitution, as amended from time to time, will apply to the state. Instead of mentioning specific provisions, it just says all provisions, otherwise it is same as any other earlier such orders issued by the president. As per Article 370, the president with state government’s consultation had the power to implement the entire Indian Constitution in Jammu and Kashmir all the time, but it was never done. Now with this order, the Article 370 becomes redundant, because Jammu and Kashmir no longer enjoys exception from several provisions of the constitution of India.
The order dated 5th August states that the president has issued the order in concurrence of the Government of Jammu and Kashmir, as per provision of the Article 370(1). And as there is no state government in the state at present, the Governor acts as the government of the state. Moreover, the Article 370 itself says that Government of the State means the governor, who acts on the advice of the council of ministers.
Abolition of Article 370
Although the Article 370 remains in the constitution, the yesterday’s order also has cleared the path to abolish it. The provision for abolishing it is included in the Article itself, in section 3, which says the President may abolish the Article 370 on the recommendation of the Constituent Assembly, which refers to the Constituent Assembly of the J&K. But the problem is, the Constituent Assembly does not exist anymore, as it was dissolved in 1956 after adoption of the Jammu and Kashmir constitution.
The provision was there because Article 370 was meant to be a temporary provision, it was part of Part XXI of the constitution, which is titled Temporary and Transitional provisions. The Article was created to apply provisions of Indian constitution selectively in the state till the time the state constitution was ready, and it was supposed to be abolished after that. But the Constituent Assembly dissolved itself without recommending removal of Article 370, which remained in the book.
Now the yesterday’s order has amended the Article 367 of the constitution, by adding a new section 4(d), which says that the “Constituent Assembly of the State” shall read as the “Legislative Assembly of the State”. This means, if the President decides to remove the Article anytime in future, it could be done with the approval of the Jammu and Kashmir Legislative Assembly instead of the Constituent Assembly.
The order also says in section 4(b) and 4(c) that Sadar-i-Riyasat of the state means the Governor, and Government of the state means the Governor of the state. These two explanations were already present in the Article 370(1), but now they have been included in Article 367. This indicates that the Article 370 may be abolished by a presidential order in near future, and therefore the necessary provisions relating to Jammu and Kashmir have been moved to Article 367.