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One Constitution for India and Jammu & Kashmir: Read Presidential Declaration under Article 370(3) that ceases Article 370

One Constitution for India and Jammu & Kashmir: Read Presidential Declaration under Article 370(3) that ceases Article 370

Bar & Bench

Days after the issuance of an order that effectively rendered Article 370 of the Constitution redundant, the President of India has formally declared the removal of this provision, which had signified the special autonomy granted to the State of Jammu and Kashmir.

The notification issued today, signed off by President Ram Nath Kovind,  states,

In exercise of the powers conferred by clause (3) of article 370 read with clause (1) of article 370 of the Constitution of India, the President, on the recommendation of Parliament, is pleased to declare that, as from the 6th August, 2019, all clauses of the said article 370 shall cease to be operative except the following which shall be read as under, namely:- 

‘370, All provisions of this Constitution, as amended from time to time, without any modification or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary constrained 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, judgment, ordinance, order, by-law, 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 383 or otherwise.’

The first step to the removal of Article 370 came on Monday, when Home Minister Amit Shah introduced The Constitution (Application to Jammu & Kashmir) Order, 2019, to supersede the Constitution (Application to Jammu & Kashmir) Order, 1954. The 1954 Order had listed out provisions of the Constitution of India that would not apply to Jammu and Kashmir.

Notably, the 1954 Order had also introduced Article 35A, which had granted special rights to the permanent residents of the Jammu and Kashmir, with respect to employment by the state government, acquisition of immovable property, and settlement in the State.

Lok Sabha Proceedings on August 6, 2019, on Article 370 (3)

TR Balu quoted Sampat Prakash vs State Of Jammu & KashmirAmit Shah quoting para 5 of the same judgment to stress the importance of Article 370 (3) and how its integral part of the Constitution.

Home Minister Amit Shah also quoted Puranlal Lakhanpal vs The President Of India And Others to make an argument “There is no reason to limit the word “modifications” as used in Art. 370(1) only to such modifications as do not make any “radical transformation“.

In its place, the 2019 Order introduced on Monday provided that all provisions of the Constitution of India will apply to the state of Jammu and Kashmir, with a few exceptions and modifications. This meant Article 35A was also removed. The Order was passed invoking with the President’s power under Article 370(3), which had stated,

“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 passing of this Order has been criticised, as the reference to the Constituent Assembly of Jammu and Kashmir, as required under the proviso to Article 370(3), has been dispensed with. The State is presently under the President’s Rule.

The annulment of the 1954 Order also paved the way for the Centre to introduce the Jammu & Kashmir Reorganisation Bill, 2019, to declare Jammu and Kashmir as a separate Union Territory with  a Legislature. Further, the Bill also provides for making Ladakh a Union Territory without a Legislature. The Bill was introduced and passed in the Rajya Sabha on Monday. On Tuesday, the Bill was passed in the Lok Sabha.

In the meanwhile, the first challenge to the Presidential Order of August 5 on Article 370 has been filed by Advocate ML Sharma in the Supreme Court. The matter may be mentioned today.  Advocate Sharma, who has filed a number of Public Interest Litigation petitions in the Supreme Court, has moved the Court challenging the government’s move to amend the Constitution of India by way of a Presidential order.

Before the 2019 Lok Sabha Elections, the BJP had released a manifesto reiterating its long held view that Article 370 of the Constitution, which grants autonomy to J&K in certain respects, must be abrogated.

[Read the Notification]