Decoded: how Article 370 was abrogated

Picture Courtesy: Patrika

The announcement made by the Home Minister on the floor of Rajya Sabha regarding Article 370 was immediately followed by a torrent of information (much of which was misinformation) which provided little clarity and gave rise to a number of misconceptions. For instance, in the heading of this write-up, there is one such fallacy which too had its inception in furore and frenzy I am talking about. That is the abrogation of Article 370. Because Article 370 has neither been repealed nor abrogated and it is in its perfect shape. Rather, the government has instead superseded the Constitution (Application to Jammu and Kashmir) Order, 1954 (Presidential Order of 1954) with the Constitution (Application to Jammu and Kashmir) Order, 2019 (Presidential Order of 2019) to take away the special status of J&K.

The relevance of the Presidential Order of 1954

To understand it better, think of Article 370 of the Indian Constitution as the skeleton of the special status of Kashmir, whereas another legal instrument, namely, the Presidential Order of 1954 as its flesh and skin. While Article 370 gave foundation and was the point of origin of everything that made J&K different from other states, it never itself explicitly said so. It was the Presidential Order of 1954, which was passed under Article 370 (1), determining how and to what extent J&K would be different from other states. The Presidential Order of 1954 determined the provision of the Indian Constitution that would apply to J&K (hence, it also determined the provision of the Constitution that would not apply thereto!). Much controversial, Article 35A was also a part of Presidential Order of 1954 conferring special rights to the ‘permanent residents’ of J&K with regard to property, voting in local elections, and employment in state services. So it was this flesh and skin wound around the skeleton of Article 370 that allowed J&K to have certain privileges, including having its own Constitution and flag.

When people started demanding that the special status of J&K be scrapped, they always and without exception demanded that Article 370 be done away with. This was because of the presence of Article 370 (3), which provided the mechanism for repealing Article 370 in its entirety. But there was a catch in the clause itself. Such deletion or modification could only be effected on the recommendation of the ‘Constituent Assembly of J&K’ which was itself dissolved in 1956. This led most to perceive that the special status of J&K could never be fiddled with.

The Presidential Order of 2019

Breaking off with this stereotype, Modi government came up with an out of the box idea.  Even though they could not touch Article 370 (at least for the time being) to scrap special status of J&K, they could always use Article 370 to promulgate a new Presidential Order to repeal the previous Presidential Order of 1954, which would anyways give the same result, i.e. scrapping of the special status of J&K. The only hurdle in passing the new Presidential Order was the proviso to Article 370 (1) (d) which lays down that to pass any such Order, the President requires the ‘concurrence’ of the Government of State, which in turn translates into, Governor acting on the aid and advice of Council of Ministers. Since there was no Council of Minister to advice the Governor at the time when Presidential Order was passed, the concurrence of Governor alone was taken and has been deemed to be the concurrence of the Government of State.

Acting on the idea, the Law Ministry published the Presidential Order of 2019 on 5^th of August, thereby effectively making the Presidential Order of 1954 null and void.  Rule 2 of the Presidential Order of 2019 says that Indian Constitution would apply to the state of J&K in its totality, consequently making the Kashmiri Constitution and Article 35A redundant and ineffective. This new flesh and skin have changed the face of Article 370 completely. The Article which was till then the source of the special status of J&K has now become the bastion of equality amongst all the states. In one stroke of sheer constitutional creativity, the government did what was by yesterday perceived as beyond the realm of possibility.

A step further towards abrogation of Article 370

What is worth noting is that all the changes this government has brought by Presidential Order of 2019 can easily be rolled back by passing yet another Presidential Order by any successive government. BJP government, mindful of this fact knows that as long as Article 370 remains, the dilemma would always persist. Hence, what it has done in the notification is that, though not repealing, it has taken a step further towards repealing Article 370 by amending effectively substituting ‘constituent assembly’ in Article 370 (3) with ‘Legislative Assembly of the State'. Thus, bringing back to life the mechanism to repeal Article 370, which was up till now lying redundant.

Resolutions in the Parliament

Also, the passing of resolutions in Rajya Sabha (on 5^th of August) and Lok Sabha (on 6^th of August) was not needed to effectuate Presidential Order of 2019 and the fate these resolutions could not affect the validity of the Presidential Order. This step was only taken by the government to seek approval and ratification of their executive action from the ‘we the people of India’.