How Amit Shah Used the Constitution to 'Allow' Him to Read Down Article 370

The home minister seems to imply that the absence of a state assembly – because the Centre repeatedly postponed elections in J&K – is responsible for the transfer of power to parliament.

New Delhi: In Rajya Sabha on Monday, Union home minister Amit Shah introduced the proposal to read down Article 370 in Jammu and Kashmir.

The promise to abrogate Article 370 was one of the Bharatiya Janata Party’s main poll planks this general election. Shah’s announcement came after tremendous fear and uncertainty in J&K, amplified by the order to Amarnath pilgrims to leave the region, the imposition of Section 144, the snapping of internet across the Valley, the house arrest of mainstream political leaders in the state and layers of misinformation regarding the whole episode.

The decision to table the bills and resolution on Jammu and Kashmir allegedly took a portion of the Rajya Sabha by surprise, as Trinamool Congress MP Derek O’Brien noted in his speech.

However, what demands most attention is the particular manner in which Shah presented the proposal and went about the process of watering down the applicability of Article 370 in the Valley.

Also follow live: BSP, BJD, AAP, YSR Congress, TRS Support Centre’s Resolutions on J&K

A quick reminder first as to what Article 370 is.

Article 370 deals with the special powers conferred upon the state of Jammu and Kashmir (Shah has also moved the resolution to separate the state into two Union Territories) which hitherto allowed it to follow its own constitution, legislate through its own constituent assembly and gave it the powers of an autonomous state.

The Article, essentially, limits the powers of the Central government when it comes to Jammu and Kashmir, delineating areas where it can legislate.

Also read: Jammu and Kashmir: Decoding Article 35A and Article 370

In an explainer on Article 370 published in The Wire, Aashish Aryan noted that despite several challenges to the provision on account of it allegedly being a temporary provision, the Supreme Court as well as the high courts have repeatedly upheld that Article 370 is indeed a permanent provision of the constitution.

A key section of Article 370 is Section 3, and it is this that Shah has utilised to compromise Article 370. Section 3 gives the President of India the power to deem the Article inoperative.

It reads:

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.

Thus, the president can scrap Article 370, but he or she needs a green signal, in the form of a recommendation, from the constituent assembly of Jammu and Kashmir.

A constituent assembly, however, is something Jammu and Kashmir does not have. It does not even have a legislative assembly and has been under governor’s rule since November 2018. In such a vacuum, the power to act was, on August 5, assumed solely by the president.

Also read: Kashmir and 370: Constitutional Coup Whose Aftereffects Will Linger a Long Time

In his speech, Shah seemed to imply that the constituent assembly essentially referred to the state assembly. And that because the state is under president’s rule, the president (and in extension the parliament) is now the sole authority who can tackle the Article 370.

It must be mentioned here that while clever use has been made of the inability of a non-existent state assembly to interject in the process (and offer insight into the opinions of the people in the Valley on the matter), the reason why there is no assembly presently in the state is because the Centre has held off on conducting elections there.

In spite of four states going into simultaneous assembly and Lok Sabha polls in April and May, Jammu and Kashmir was deemed too volatile for state elections to take place. Three days ago, a delegation of the National Conference including former chief ministers Farooq and Omar Abdullah, met Prime Minister Narendra Modi to push for elections in the state.

Shah, therefore, used an essential if not engineered absence in the Jammu and Kashmir legislative structure to propagate the Constitution (Application to Jammu and Kashmir) Order, 2019. He also said that this is not the first time that the Article is being amended, and cited the Congress governments’ amendments to it in 1952 and 1962.

However, as has been noted in this The Wire report, what is not clear, legally, is the government’s ability to use a presidential order to add a clause to Article 367 of the Constitution.