NEW DELHI: It is the absence of an elected government and the imposition of President’s Rule in J&K which enabled the Modi government to propose doing away with the provisions of Article 370, which gives special status to the state.
Article 370 can be abrogated by the President with the approval of the Constituent Assembly which ceased to exist in 1957. So, how did the government do it? On Monday, the Centre issued a Presidential order and proposed a resolution in Parliament to do away with the special status of Kashmir.
To issue the Presidential order, the government used Clause (1) of the same Article 370 whose other provisions it proposed to abrogate with the resolution. Clause (1) empowers the President to apply other articles of the Constitution to the state. The same should, however, have the concurrence of the state government.
Since there is no elected government and the state is under President’s Rule so, this may be a legal issue if challenged in court.
A Presidential order abrogating or modifying Article 370 can be issued only under Article 370 (3) for which recommendation of the Constituent Assembly is required which was not possible as it was dissolved long ago.
So, through the order, President effectively made changes in Article 370 by amending Article 367 of the Constitution, which is an interpretational clause and acts as a guide in understanding laws. By the order, the government added a new clause section (4) to 367 to declare the Governor of J&K to be equivalent to Government of state.
The Governor was also declared to be read as equivalent of Sadar-e-Risayat (elected head of state). Also, the Constituent Assembly, which was dissolved long ago, was declared to be read as Legislative Assembly.
The Presidential order paved way for actual changes in Article 370 which can be done only by applying Clause 3 of 370. However, Clause 3 mandates that the President get the approval of the Legislative Assembly — but J&K is under President’s Rule. When a state is under President’s Rule, the power to make laws for the state is vested in the Indian Parliament. So effectively, the government’s move allowed Parliament to act on behalf of the J&K Assembly to change the character of the state.
The government used powers under Article 370 to alter Article 367 which in turn, allowed it to hollow out Article 370.