Issuing C.O 272 & C.O 273 using Art-370 in August 2019 is under Judicial review for Procedure Adopted

𝗠𝗼𝗱𝗶𝗳𝘆𝗶𝗻𝗴/ 𝗔𝗺𝗲𝗻𝗱𝗶𝗻𝗴 𝗧𝗲𝗺𝗽𝗼𝗿𝗮𝗿𝘆 𝗔𝗿𝘁-𝟯𝟳𝟬 𝗶𝘀 𝘀𝘂𝗿𝗲𝗹𝘆 𝗻𝗼𝘁 𝘃𝗶𝗼𝗹𝗮𝘁𝗶𝗻𝗴 𝗯𝗮𝘀𝗶𝗰 𝗽𝗿𝗶𝗻𝗰𝗶𝗽𝗹𝗲𝘀 𝘂𝗻𝗱𝗲𝗿𝗹𝘆𝗶𝗻𝗴 𝗖𝗼𝗻𝘀𝘁𝗶𝘁𝘂𝘁𝗶𝗼𝗻 𝗼𝗳 𝗜𝗻𝗱𝗶𝗮

DAYA SAGAR

In a written reply to Rajya Sabha question 138* Narendra Modi Government had very explicitly informed the nation that J&K had no special status in The Constitution of India / Article 370 is not an article providing special status to Indian state of ‘J&K. And the opinion had not been contested by any one.
It was on August 5, 2019 that The Constitution (Application to Jammu and Kashmir ) Order C.O 272 of date August 5, 2019 was made by the President of India under the provisions of Art370 (1) of Constitution of India , that with respect to Art-370 of Constitution of India, the Constitution (Application to Jammu and Kashmir ) Order C.O 273 of date August 6, 2019 was made by the President of India- Declaration Under Article 370(3) of the Constitution and Bill No. XXIX of 2019-The Jammu and Kashmir Reorganisation Bill, 2019 was passed by Parliament of India on 6th August 2019 (Act No: 34 of 2019 assented by President of India on August 9, 2019).
The orders issued under C.O 272 and C.O 273 have been very particularly questioned by some political leaderships taking to the provisions of constitution of India as regards the legal process followed for issuing the said order/ notification and some have also tried to questioning these orders arguing there being no need /justification for issuing such orders(even some linking the affected provisions with the aspirations of the people of J&K / ‘some’ commitments made with the people of J&K in 1947 ( Kashmir Valley in particular ),more particularly the provisions that had been removed under these orders ( like C.O 272 among other things particularly with respect to Art-35A)& modified under these orders ( C.O 273 with respect to Art-370 ). Congress party too had also joined the those questioning the said orders but it has been more as regards the constitutional process / course adopted by the executive& the legislature for provisioning the President to issue Orders / notifications C.O 272 of 05-08-2019 & C.O 273 of August 6, 2019 and timing of issue of these orders.
To be brief over the years Art-370 had remained an issue of debates among the politicians and some opinion makers who had more used it for their political interests like (i) some ( mostly local belonging to Kashmir valley ) saying that Art-370 provided special status to people of J&K in terms of commitments made to people of J&K at the time of Accession 1947 to the extent of projecting it somewhat like a distancing symbol from other citizens of India ( some even went to the extent of describing it as a bridge between the State and Union of India at the time of Accession 1947 ) to emotionally attach with their political competitive interests in power games ,(ii) some political parties did not contest any myths that were if at all there about status of J&K and (iii) some political parties used it more to accuse the leadership that was involved in drafting of Art-370 in 1949 instead of also contesting the claims of those who had been advocating the special need for Art-370 / Article -370 was providing special status in constitution of India to J&K / Art-370 is a bridge between India & J&K. So the common innocent masses of J&K had remained in an environment of controversies & confusions and many were likely to get disturbed in case someone expresses to them that with abrogation (which actually has been modification) of Art-370 done by C.O 273 of August 6, 2019 “your” special status has been taken away !Even using ‘abrogation’ is technically not proper, Art-370 has been modified under provisions of Constitution of India ( of course any one has right to question the procedure and petitions have been filed before Supreme Court of India ).
No doubt after 5th August 2019 those who were for the issue of CO 272 and CO 273 should have been particularly careful while introducing the said orders to common people of J&K ( particularly of Kashmir Valley) since the said article has always been explained to the locals as Special Status ( Vishesh Darja) Article & as an Article keeping J&K as a different state than other Indian states but instead some people had been still referring it as removal of special status and even saying that J&K has been fully integrated with India after August 6, 2019 as Art-370 has been abrogated {where as J&K was already an integrated unit of India which well reflects from Art-1 of The Constitution of India as well as is also mentioned in the “Constitution of J&K in its preamble ( We, the people of the State of Jammu and Kashmir, having solemnly resolved, in pursuance of accession of this State to India which took place on the twenty-sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves ) as well as Section -3 of Constitution of J&K ( The State of Jammu and Kashmir is and shall be an integral part of the Union of India)} which has surely been undesirable keeping in view that government of India has been always focussing on bringing peace and stability in J&K and for which it is very much required to adopt very considerate & humility dressed approach towards the opinions/ thinking of “each & every” subject of J&K so that any intentions of common interest are placed with patience ( no any challenges ) before common innocent masses who may have been ‘cultivated’ with different understandings about related affairs over the decades.
It is now over 7 decades after 1947, we must work with an approach that every single soul is made free from any myths about J&K being as good an Indian state as is Punjab or UP so that no any foreign power and even any separatist ideology can make use of any myths used by any as ‘baits’ in local power games.
Now petitions challenging operations performed for issue of C.O 272 of August 5, 2019 and C.O 273 of August 6, 2019 using the provisions of Constitution of India through Art-370 of Constitution of India are before Supreme Court of India . 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 directions and ordering that hearing on the clutch of petitions 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 said that Centre’s affidavit filed on July 10, 2023 (Monday) with regard to the conditions prevailing in Jammu and Kashmir after the August 5, 2019 notification will have no bearing on the constitutional issue to be adjudicated by the five-judge bench. Good that no goods or bads, no commitments or promises, no historical events or opinions earlier to 1947 are made part of proceeding which could an push environment outside into unwanted emotional conflicts / controversies / political traits.
So indications there are pleasant since the hearings in the apex court are now expected to be focused only on the constitutional / legal issues connected with the procedure adopted for issue of C.O 272 and C.O 273 using Art-370 itself. Ofcourse a temporary article like Art-370 (Temporary provisions with respect to the State of Jammu and Kashmir) is not intended to be there indefinitely or retain its features permanently.
Art-370 is the only Article in Constitution of India that has been named temporary and the procedure for its modification or revocation was mentioned in its body itself. Whereas even Art-238 which was for Part- B States ( Hyderabad, J&K, Madhya Bharat, Mysore, Patiala and East Punjab States Union, Rajasthan, Saurashtra, Travancore – Cochin, Vindya Pradesh ) was not named anywhere as temporary but was removed from the constitution in 1956 using the Constituent power inherited in Art-368 (procedure for amendment of the Constitution). Amending the constitution / provisions in Constitution is ofcourse a ‘constituent power’ though has the rider of not violating the basic principles enshrined in constitution of India and on face of it the President declaring by public notification that Art-370 shall cease to be operative or shall be operative only with such exceptions and modifications is surely not violating the basic principles of Constitution of India where ofcourse anybody has a right to question the procedure adopted and that is the case before apex court. The procedure adopted could be discussed for fairness and unanimous judicial review shall surely yield peace and stability.
To be continued
(The author is Sr Journalist &
leading scribe J&K affairs [email protected]).