On 5th August 2019, the Parliament of India voted in favor of a resolution tabled by Home Minister Amit Shah to revoke the temporary special status, or autonomy, granted under Article 370 of the Indian Constitution to Jammu and Kashmir.
The PIB statement on the 6th of August 2019 issued by GoI in this regard indicated:-
“Article 370(3) provides President of India has the powers to amend or repeal the article by issuing a notification, based on a recommendation of Constituent Assembly of J&K. President of India signed the Constitution Order 2019 yesterday regarding Article 370(1), under which all the provision under article 4 would be applicable to J&K. J&K constituent assembly would be read as J&K Legislative Assembly. Similar changes to article 370 have been done in the past as well. Now since President’s rule is in force in the state, implementation of article 370 would cease to exist when President of India issues the notification in this regard after this House passes the resolution.”
It raised many eyebrows. So if the president of India had the power under Article 370(3), why did he use the power under Article 370(1)? It says similar changes have been done in the past during other regimes. For this, I tried to deep dive into the constitutional amendment done which opened up the pandora’s box.
What does Constitutional Amendment indicate?
The updated version of the constitution of India was released on 26th November 2021. For Article 370 related changes, the constitution of India was appended with two appendices — Appendix -II and Appendix III. It is interesting when we read them as none of them discuss abrogation. They merely talk about the following:-
- Article 370 shall cease to be operative except for the amendments done earlier with respect to 370. Just for your information, Article 370 has been modified several times through presidential orders in the past. So it is a mere suspension and not an abrogation.
- The status of the Constituent Assembly has changed to a legislative assembly as the Constituent Assembly ceased to exist.
- The Governor of J&K became the Sadar E Riyasat.
- It further says in 370(3) (which is a continuation. See pg 263), 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..”. So depending on the council of ministers will take further actions.
If we combine it together, the entire issue is about making article 370 inoperative rather than abrogation. The decision of abrogation may happen when the council of ministers from the elected assembly suggests to the Sadar E Riyasat (Governer) and the governor recommends the president.
Only courts can decide whether the amendments are legally justifiable and valid or not but one thing which stands out is that it is not abrogation and mere modification of the status for now but is still very much part of the constitution.
Note: I came to know about this matter from my friend whistleblower Biranchi Narayan Mallick who broke this news on Facebook.
