Issuing C.O 272 & C.O 273 using Art-370 in August 2019 is under judicial review for procedure adopted

𝗠𝗼𝗱𝗶𝗳𝘆𝗶𝗻𝗴 /𝗥𝗲𝗽𝗲𝗮𝗹𝗶𝗻𝗴 𝗧𝗲𝗺𝗽𝗼𝗿𝗮𝗿𝘆 𝗔𝗿𝘁-𝟯𝟳𝟬 𝗶𝘀 𝘀𝘂𝗿𝗲𝗹𝘆 𝗻𝗼𝘁 𝘃𝗶𝗼𝗹𝗮𝘁𝗶𝗻𝗴 𝗯𝗮𝘀𝗶𝗰 𝘀𝘁𝗿𝘂𝗰𝘁𝘂𝗿𝗲 𝗼𝗳 𝗖𝗼𝗻𝘀𝘁𝗶𝘁𝘂𝘁𝗶𝗼𝗻 𝗼𝗳 𝗜𝗻𝗱𝗶𝗮
𝗔𝗿𝘁-𝟭 𝗼𝗳 𝗖𝗢𝗜 𝘄𝗮𝘀 𝗻𝗼𝘁 𝗮𝗽𝗽𝗹𝗶𝗲𝗱 𝘁𝗼 ‘𝗝&𝗞’ 𝘁𝗵𝗿𝗼𝘂𝗴𝗵 𝗔𝗿𝘁-𝟯𝟳𝟬 𝗯𝘂𝘁 𝗶𝘀 𝗮𝗽𝗽𝗹𝗶𝗲𝗱 𝘁𝗼 𝗝&𝗞 𝗮𝗹𝗼𝗻𝗴 𝘄𝗶𝘁𝗵 𝗔𝗿𝘁-𝟯𝟳𝟬

DAYA SAGAR

The five Judge Constitution Bench (Chief Justice D.Y Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R Gavai & Surya Kant ) too had on July 12, 2023 while passing several procedural directionsand ordering that hearing on the clutch of petitions related to Art-370 (In Re: Article 370 of the Constitution” )will be held on a day-to-day basis w.e.f 2nd August 2023 except on Mondays and Fridays (days for hearing miscellaneous matters in the apex court) too has in a way opined that petitions related Art-370 shall be adjudicated primarily with respect to the constitutional procedures/ provisions only.
In the Constitution of India there are enough of provisions for amending the articles of Constitution of India where ever it is found that some amendment or modification or repeal is required of the provisions therein for betterment or to suit the unforeseen requirements without violating basic structure of Constitution / the basic spirits behind the drafting and adoption of the Constitution of India by the constituent assembly on 26 Nov 1949. So, have been the provisions also for Article 370, a Jammu & Kashmir state specific Article in Constitution of India. The Article 370 has in its text also a procedure laid down where under even without use of Art-368 of COI action can be taken for amendment or repeal of this Article. Before taking the discussion further, it will be better to have a look into the text of Article 370 as was in 1950 (first edition of The Constitution of India) ::-
Art-370. (1) Notwithstanding anything in this Constitution, (a) the provisions of Article -238 shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of parliament to make laws for the said State shall be limited to
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State ; and (ii) such other matters in the said Lists as, with the concurrence of the
Government of the State, the President may by order specify.
Explanation. For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948 ;
(c) the provisions of Article- I and of this Article shall apply in relation to that State ;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify : Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State : Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.(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 proviso 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.(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.
On the basis of text of Article 370 it could be inferred that :1.Art-370 in part-XXI of Constitution of India ( Temporary and Transitional Provisions in 1950)/ Temporary. Transitional and Special Provisions in 2023) is included as Temporary Provisions w.r.t. the State of Jammu and Kashmir and hence the intentions of the authors
of the Constitution of India were surely for its recasting/ repeal/ modification at some adequate moment of time. Those who contest that Art-370 is irrevocable and non- negotiable may kindly must go through the text of the Art-370 truthfully.
Those who believe that Art-370 ‘cannot’ go since it is a bridge between India & the ‘Indian state of ‘J&K’ argue that Article – 1 applies to J&K through this Article and quote Clause (1) Sub- Clause-c of Art-370 in their support (“the provisions of Article -I and of this Article shall apply in relation to that State”. But the question such people need be asked is that “do they mean to say that Authors of Constitution of India had temporarily included J&K in territory of India ?”. No, surely the people who draw such like inferences are not correct since : (i) In Art-370(1-c) it has been mentioned that the provisions of Article -1 and of this Article shall apply in relation to that State is not because Art-1 applies through Art-370 but Art-1 has been mentioned along with Article 370 there to demonstrate that Art-1 and Art-370 are totally Indian Union subject (“J&K specific Union List Subject”) and no any clarifications/ interpretations/ consultations/ concurrences are to be made/ obtained with/ from State Government/ State concerning any matter pertaining to text of Article-1 as well as Art-370 as has otherwise been said regarding other subjects for identification of J&K specific Union or State list subjects .
It has to be noted that in the text of Art -370(1-c) Article 370 and Article- 1 have been mentioned with the word ‘and’ separating them which makes it very clear that Art-1 is not applied through Art-370. Hence anyone who opines/ believes that Art-370 is ‘connecting’ as a bridge J&K with India union is surely carrying a wrong opinion/ understanding. The Constitution (Application to Jammu and Kashmir) Order, 1954 also mentions Article 1 and Article 370 separately. Had the application of Article 1 been only through Article 370 then there was no need to mention Article -1 separately in the text of Constitution (Application to Jammu and Kashmir) Order, 1954. Hence anyone who opines/ believes that Art-370 is ‘connecting’ as a bridge J&K with India union is surely carrying a wrong opinion/ understanding. Unfortunately no any meaningful advisory had been issued to those leaders who named Art- 370 as a Bridge between India and J&K by GOI or those who mattered in this regard. Hence, a wrong picture had been in a way posted over the years which did cultivate myths in innocent minds. So with the issue of C.O 272 on 05-08-2029 and C.O 273 on 06-08-2019 notification regarding Art-370 following legitimate and available constitutional provisions/ tools a process for medicating such myths could be set which would be in the overall interest of one and al .Though aspect is related to procedures still it quoted here since use of this pleading has bearing on common peace.
Referring to Art-370(3) the other objection advanced by some regarding C.O 273 of 06-08-2019 ( a Presidential notification ) , which notifies modification / change in the contents/ text of Article -370 is that since there is no Constituent Assembly of J&K available{ as mentioned in Art 370(3)} so the recommendations made (by Parliament) to President for issuing the said notification are not constitutionally valid. Which too is not fair and valid as would be discussed in hereafter.
To be continued
(The author is Sr Journalist &
leading analyst J&K affairs [email protected]).