It has been almost 2 years when the Modi government dropped a big bomb in Kashmir with the approval of the Indian Parliament to revoke the two important constitution provisions which are Article 370 and Article 35A, which give special rights to Indian occupied Jammu and Kashmir. Article 370 particularly grants the right to hold special status and limited autonomy to Jammu and Kashmir. 

Whereas Article 35A grants the authority to the state to define “permanent resident” and provide special rights which include employment to the people of Jammu and Kashmir. After the revocation of articles, Jammu and Kashmir have been divided into two states and these states are now under the control of New Delhi. Many legal experts have raised questions on the validity of this move. They assert that it is an illegal move to change the “constituent assembly” into “legislative assembly” using the governor as a proxy in the absence of a legislative assembly. Courts have mentioned in various cases that Article 370 is permanent. The presidential order regarding the revocation of articles is not only restricted to Article 370(i) of the Indian constitution which deals with interpretation and guidelines of the constitution with reference to the General Causes Act, subject to adaptation and modification made under Article 372. In short, besides the scope of Article 370(i), Article 367 and Article 372 of the Indian Constitution also needs to be examined.

Article 370 has been explained into 3 sub-clauses. In first sub-clause (i), it states that Article 238 of the Indian constitution will not be enforced on Jammu and Kashmir. Whereas sub-clause (i)b states about the power of law-making by parliament which comes under Article 370 is limited to the union list and concurrent list, which will be done with the consent of the government of Jammu and Kashmir, with reference to the matters mentioned in the Instrument of Accession.

While Article 371(i) (b) (ii) states that those matters which are not mentioned in the Instrument of Accession, will be dealt with with the consent of Jammu and Kashmir. All the powers mentioned above there are requirements of the consent of the government of Jammu and Kashmir which are outside the scope of accession instrument. Therefore for issuing any proclamation or making any law, there is a need for the consent of Jammu & Kashmir and without consent no presidential order is possible.

Article 370(3) deals with the powers which are given to the President for issuing a notification to the effect of whether Article 370 will apply or not. But again it has a requirement, it can only be done with the consent and recommendation of the constituent assembly. Some people argue whether Article 370 is temporary or permanent but in a real sense, it makes no difference as the procedure followed for changes is only with reference to article 370. Basically, when the accession instrument was formed, it was believed by people that it would work out for three years. But now, almost 70 years have passed and the instrument of accession is still workable. At present, there is no contradiction in the procedure relating to the abrogation of Article 370.

The President has no power to amend the clause in Article 370 without the recommendation of the government of Jammu and Kashmir. Therefore the Presidential order dated 5th August is illegal and ultra vires to his power under the Indian Constitution for the reasons mentioned above.

MUJEEB-UR-RAHMAN,

Karachi.