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Amendment of Article 370 And Issues Arising Thereof

Article 370 finds its place in the Indian Constitution under Part XXI: Temporary, Transitional and Special Provisions. The marginal notes to Article 370 reads  Temporary provisions with respect to the State of Jammu and Kashmir. Thus, the framers of the Constitution considered the Article to be temporary and transient.

In the present article, we shall try to understand Article 370 and the manner in which it was amended.

370. Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding..... concurrence of that Government.

Clause (1) of Article 370 empowers the President of India to make modifications or amendments in the Constitution of India on issues relating to the State of Jammu & Kashmir (J & K). However, the same is with a rider that any such change can take place only with the consultation of the Government of the State. Thus, the President of India can issue any order applying or not applying any of the provisions of the constitution to J & K only after receiving the assent of the State Government.

Clause 2 of Article 370 states as under:

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second provision to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

Thus, the clause only means that any concurrence given by the State Government as required in Clause 1 when the Constituent Assembly has already convened, the same shall have to be ratified by the Constituent Assembly. This clause is inoperative since the Constituent Assembly of J & K is not in existence.

Now, the most important part of this Article is its clause 3 which reads as under:
(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

The above clause gives wide powers to the President of India to declare this article to be inoperative or operative with certain modifications and exceptions. However, the provisio to this clause again limits these powers by requiring the recommendation from the Constituent Assembly of the State before making any such orders.

Note: The Constituent Assembly of J & K convened on 31-10-1951 was dismissed on January, 1957 after passing the State’s Constitution and since then there is no Constituent Assembly in the State.

So How The Amendment Was Made:
From the above analysis, we observe that any change on the applicability of this Article can be made only after the recommendation from the Constituent Assembly of the State. However, it is also a very well-known fact the Constituent Assembly was dissolved way back in January, 1957 without recommending deletion of Article 370.

Thus, the Government of India followed the following procedures to make the required amendments:
1) Clause (1) of Article 370 empowers the President of India to make modifications or amendments in the Constitution of India on issues relating to the state of J & K after consultation with the State Government. Since, J & K at present is under Governor’s Rule, thus the concurrence of the State Government shall mean concurrence of the Governor of the State.

2) Article 367 contains guidelines regarding interpretation of the Constitution of India. Thus, using the power given to the President to modify any of the provisions of the Constitution in relation to J & K under Clause 1 of Article 370, the President of India in consultation with the Government of Jammu & Kashmir(i.e. The Governor) issued C.O. 272: The Constitution (Application To Jammu And Kashmir) Order, 2019 dated 5th August, 2019 and amended Article 367 by adding clause 4 to it which gives definitions to various terms in relation to J & K. The most important part of the Clause is its sub-clause d which states as under

(d) in proviso to clause (3) of article 370 of this Constitution, the expression Constituent Assembly of the State referred to in clause (2) shall read  Legislative Assembly of the State.

Thus, the only deterrent towards amending Article 370 was cleared by equating the Constituent Assembly with the State Legislature.

3) Having the legal backup vide Presidential Order dated 05-08-2019 and after getting assent of both houses of the Parliament, the President of India issued C.O. 273:
Declaration Under Article 370(3) of The Constitution dated 6th August, 2019 and declared all clauses of Article 370 to be inoperative with immediate effect and a new text of Article 370 has been inserted by the order. Thus, in effect Article 370 still remains in the Constitution of India, but with no special powers. The amended Article 370 reads as follows:

370. All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.

Effect of the Amendment:
1) Clause (1), (2) and (3) has been deleted from Article 370.

2) Article 370 still finds its place in the Constitution of India and hence it is not abrogated, but only amended, but with no powers.

3) Article 35A in Appendix I of the Constitution which was inserted vide powers given in Article 370 (1) become inoperative since the source i.e. Article 370(1) from which it was made itself is deleted.

Legal Issues Arising Out of the Amendment:
1) Does it alter the basic structure of the constitution as stated by the 12 Judge Constitution Bench of the Hon’ble Supreme Court of India in Kesavananda Bharati Sripadagalvaru and Ors vs State of Kerala and Anr (1973)?

2) Is equating Governor of the State with the State Government justified?

3) Is equating Constituent Assembly with State Legislature justified?

All these issues will now be decided by the Hon’ble Supreme Court where a petition has already been filed. However, as regards the entire amendment process and as a student of law, there are many legal and interpretational issues and procedures which we could learn from this entire exercise.

1) The Constitution of India.
2) Presidential Orders as issued by the President of India on 05-08-2019 and 06-08-2019.

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