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Art.370 Abrogation

  May 22, 2020

Art.370 Abrogation

What is Art.370?

Article 370 of the Indian constitution gave special status to Jammu and Kashmir allowing it to have a separate constitution, a state flag and autonomy over the internal administration of the state. The article was drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. Article 370 embodied following special provisions for Jammu and Kashmir:

  1. It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have its own Constitution.
  2. Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence, foreign affairs and communications.
  3. Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.
  4. Article 370 could be abrogated or amended upon the recommendation of the State's Constituent Assembly.

What is Art.371(1)?

Article 370(1) restricts two aspects

  1. The applicability of the Indian Constitution to the state and;
  2. The legislative powers of the union government to limited domains such as defense, foreign affairs and communications. 

Article 370(1)(c) explicitly lists the two constitutional articles that will apply to Jammu and Kashmir: 

  1. Article 1 (which enumerates India’s constituent divisions) which says that J and K is India’s 15th state and irrevocably part of the “territory of India”; and 
  2. Article 370 itself.

Article 370(1)(d) explains how other constitutional provisions may discretionarily be applied to the state:  President of India through an order, along with the “concurrence” of the “Government of the State.” 

In this way, Article 370(1)(d) has been used to “incorporate” other provisions of the constitution to Jammu and Kashmir.

What is Art.370(3)?

Article 370(3)   describes how the Article.370 could “cease to be operative” or be operative only in part: The president would have to issue a “public notification,” but the “recommendation” of the “Constituent Assembly of the State” would be “necessary before the President issues such a notification”. 

What are the Presidential orders?

In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President, with the concurrence of the Government of the State of Jammu and Kashmir made a series of orders.

Why were they made?

The Presidential order of 1950, officially The Constitution (Application to Jammu and Kashmir) Order, 1950, came into force on 26 January 1950 simultaneously with the Constitution of India. It specified thirty-eight subjects from the Union List as matters on which the Union legislature could make laws for the State. 

The Presidential order of 1954, officially The Constitution (Application to Jammu and Kashmir) Order, 1954 came into force in 1954. Issued with the agreement of the State's Constituent Assembly, under it, Indian citizenship was extended to the 'permanent residents' of Jammu and Kashmir (formerly called 'state subjects'). Simultaneously, the Article 35A was added to the Constitution, empowering the state legislature to legislate on the privileges of permanent residents with regard to immovable property, settlement in the state and employment.

Many more Presidential Orders were issued since then till 2019 August when the Art.370 itself lost meaning.

What is their aim and effect?

The aim was national integration. 

The effect of the Presidential orders issued since 1954 had been to extend 94 of the 97 subjects in the Union List (the powers of the Central Government) to the State of Jammu and Kashmir, and 260 of the original 395 Articles of the Constitution of India. All of these orders had been issued as amendments to the Presidential Order of 1954, and not as replacements to it.

What was President's Constitutional Order 272?

On 5 August 2019, President of India had issued a presidential order (C.O. 272) under Article 370, superseding the 1954 order. The order stated that all the provisions of the Indian Constitution applied to Jammu and Kashmir. Whereas the 1954 order specified that only some articles of the Indian constitution to apply to the state, the new order removed all such special provisions. This in effect meant that the separate Constitution of Jammu and Kashmir stood abrogated. The President issued the order with the "concurrence of the Government of State of Jammu and Kashmir", which meant the Governor, as no Council of Ministers was operative at the time of the Presidential order as it is under President's Rule.

What does the Constitutional Order 272 do?

The President issued Constitutional Order 272 under Article 370(1) of the Constitution on August 5 (C.O 272) and made following changes: 

Why did the President amend/clarify Art.367?

Article 367 is the interpretation clause of the Constitution. when applying provisions of the Indian Constitution to J&K, the President effected one ‘modification’— to Article 367. In Article 367, the Presidential Order makes a change to say that “Constituent Assembly” in Article 370(3) must be read as “Legislative Assembly of the State”.  In implies that when legislative assembly was dissolved under the President's rule, the powers go to the Union parliament and so Parliament's recommendation for abrogation of Art.370 was technically appropriate. Parliament passed a resolution to that effect during the budget session in August 2019.

Any Constitutionality issues involved?

Experts questioned about whether President had the power to amend Art.367 and that it needed a Constitution Amendment Bill under Art.368. But proponents argue that since the amendment applied to Art.370 only, President had the power by extension from Art.370(3).

What is Constitutional Order 273?

Based on the statutory resolution (Resolution that amends a Statute) passed by the Parliament recommending the modification of Article 370 of the Constitution, President issued CO 273.

Constitutional Order 273:

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 .... 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.

Technical and substantive issues

While, as said above, technically, the procedure followed for abrogation was correct, there are substantive questions:

1. Can the President amend Art.367

2. Is the spirit of the Constitution followed when the change was carried out when the state was under President's rule

3. It may be seen as inappropriate that the change is followed by the abolition of the very state itself.