Home Opinions Read the legal process used to abolish Article 35A and render Article 370 ineffective by a Presidential order

Read the legal process used to abolish Article 35A and render Article 370 ineffective by a Presidential order

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.

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.

The presidential order on article 35A and 370

Article 35A

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.

- Ad - - article resumes -

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.

Article 370

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.

Help Opindia Reach Every Indian. Share This Post
We need your support to survive in the media industry. Please consider paying us for the content we produce:

To know more about these payments, please click here.


Big Story

Strange rumours are coming out of Kashmir. Shah Faesal, supposedly, is Doval's stooge.

2019 World Cup Is Here!

Catch the latest on Cricket World Cup as it unfolds, special coverage by Opindia

To Advertise on Opindia.com Click here

Pakistan takes a cue from Congress yet again, asks ‘what happened to Rafale investigation’

In case Chaudhry missed out, the first Rafale jet is expected to be delivered next month.

NDTV’s Interim CEO Suparna Singh resigns with immediate effect

NDTV interim CEO Suparna Singh, whose appointment as CEO was not approved by I&B ministry, has stepped down
Hartosh Singh Bal resorts to factually incorrect details to target Amit Shah

Fact-Check: Unlike Chidambaram who tried to escape from law, Amit Shah resolutely faced trial and was acquitted

Hartosh Singh Bal equated P Chidambaram's disgraceful escape with Amit Shah's tenacity to face the law

Political Editor of The Hindu condones violence by Congress workers who beat up a man who shouted ‘Chidambaram Chor Hai’

Congress worker beats up a man for shouting 'Chidambaram Chor Hai', The Hindu Political Editor Nistula Hebbar shows excitement at the unruly behaviour.

P Chidambaram finally arrested by CBI after officers scale wall of his residence as the gates were locked

Chidambaram arrested from his residence after he addressed a press conference at Congress office

Former Pakistan army chief says Pakistan will use Kartarpur corridor to revive Khalistani terrorism in India

Gen Mirza Aslam Beg has said Pakistan army and the government should create trouble for India through Khalistan movement

Read about the P Chidambaram link in the new FIR filed against NDTV by the CBI

It appears that the INX Media case, the new FIR against NDTV and arrest of P Chidambaram are all interconnected.
Imran Khan has defended terrorists on Twitter

Imran ‘Taliban’ Khan goes on a bizarre defense of terrorists who may have infiltrated India disguised as Hindus

If harbouring, nourishing and sending terrorists to India was not enough, Pakistan has now shed all pretence and has been officially using terrorism as its state policy.

Is Shah Faesal Ajit Doval’s asset? Unlikely, Swati Chaturvedi may be unwittingly helping the central government

Strange rumours are coming out of Kashmir. Shah Faesal, supposedly, is Doval's stooge.
Rajiv Gandhi's tenure saw justice, freedom and institutions compromised at every level

No Sonia Gandhi, your husband did not stand for democracy or liberty

Rajiv Gandhi had infamously justified the Sikh massacre by saying, "When a big tree falls, the earth shakes."
Subscribe to Day's Top Stories
[newsletter_form type="minimal"]
- Advertisment -

Latest articles

Connect with us

181,299FansLike
172,747FollowersFollow
90,967SubscribersSubscribe
Help Opindia Reach Every Indian. Share This Post