What it implies for J&K if Article 370 modifications are upheld in court
Current circumstance:
- The division of Jammu and Kashmir into two Union Territories and the amendments to Article 370 are the subject of petitions that will be heard by a five-judge Supreme Court panel starting on Tuesday.
- The petitions, which raise significant legal and constitutional concerns, will be examined by a bench presided over by Chief Justice of India (CJI) D Y Chandrachud.
Constitutional amendments passed by Parliament include:
- On August 5, the Centre changed and replaced The Constitution (Application to Jammu and Kashmir) Order, 1954 with The Constitution (Application to Jammu and Kashmir), 2019.
- The new decision said that “all the provisions of the Constitution” were now applicable to J&K state. J&K is now directly subject to the Indian Constitution as a result of the government’s revision to Article 367, which also included a new Clause (4).
- Then, in accordance with Article 370(3), the President issued a proclamation that rendered all of its articles ineffective, with the exception of the one that states that J&K shall be subject to all provisions of the Constitution.
Modifications to Article 370:
- Jammu and Kashmir were to be covered by both Article 1 and Article 370, according to Article 370.
- Other constitutional provisions were not automatically applied to J&K, but the President of India was given the power to do so with the support of the J&K government under clause (1)(d) of Article 370.
- According to Article 370’s Clause 3, the President was empowered to
- Only if the J&K Constituent Assembly recommended it, “Declare that this article shall cease to be operative” in full or in part. Due to the dissolution of the J&K Constituent Assembly in 1957, which prevented the creation of a new Constituent Assembly, this prerogative of the President had ceased.
- In accordance with Article 370, the Maharaja of J&K, formerly known as Sadr-e-Riyasat, was referred to as the state government for the purposes of this article while acting on the advice of the council of ministers. The President had no way of securing its consent because J&K did not have a state government either.
- This indicated that the Centre lacked the legal and constitutional authority to repeal or alter Article 370.
- However, utilising the President’s power under Article 370(1)(d), the Centre modified Article 367, which provides guidelines for reading the Constitution.
- The “Constituent Assembly of the State,” which was referred to in Article 370(3), was changed to the “Legislative Assembly of the State” in Article 367.
- Thus, instead of being amendable through Article 370(1)(d) and instead solely upon the recommendation of the Constituent Assembly pursuant to Article 370(3), Article 370 was revised via presidential order pursuant to Article 370(1)(d).
Does the legislature speak for the state’s executive branch?
- The President extended the power of the state legislature to Parliament when he created direct rule in J&K, taking on all of the state’s obligations under both the Indian and J&K constitutions.
- As a result, the President of India served as the J&K state government and Parliament served as the state legislature.
- The J&K Constituent Assembly’s authority had been passed to the state legislature, therefore when the “state government” gave its consent to these important changes, it was actually the President giving permission to his own choice.
- President’s Rule in a state is considered to be a temporary arrangement until an elected government is put in place, hence it has been argued that the administration cannot make decisions that alter the state’s own constitution.
Before Article 370 was repealed, J&K had a unique provision:
- The proposal to remove the J&K Constitution has been disputed since the J&K Constitution forbids the Legislative Assembly of J&K from proposing modifications to any articles of the Indian Constitution.
- Article 147 of the J&K Constitution forbade the J&K Legislative Assembly from “seeking to make any change in provisions of the Constitution of India as applicable in relation to the State.” Even the J&K Legislative Assembly lacked the legal jurisdiction, according to one viewpoint, to ratify the President’s decision.
The current state of UT:
- J&K was split into two Union Territories (UTs) under the Jammu and Kashmir (Reorganisation) Act of 2019; Ladakh was a UT without an Assembly, while J&K had one.
- There has never been a state that was reduced to a UT throughout India’s constitutional history, despite the fact that Parliament is permitted to create new states by slicing away territory from any state, uniting two or more states, or combining portions of multiple states. Additionally, Parliament has the power to expand an existing state or change its current borders.
- The Center’s decision has been challenged on the grounds that it violates Article 3. In accordance with this article’s proviso, the President is also required to refer any law that calls for the reorganisation of a state to the appropriate state’s assembly if it “affects the area, boundaries, or name of any of the states.”
- It is argued that the Parliament’s position on such a Bill cannot take the place of that of the state legislature. Under President’s Rule, only those legislative authorities may be exercised that are essential to running the state’s everyday operations.
- Parliament is unable to reflect the legislative viewpoint of a single state, which is essentially the viewpoint of that state’s residents.
Legislative concept colour:
- The constitutional revisions are described as “colourable legislation” in the challenge, which makes them inapplicable legally.
- The doctrine of colourable law is the legal adage that claims nothing can be done indirectly.
- This theory has been reaffirmed by the Supreme Court and constitutional courts in other countries.
Conclusion:
- The Indian Constitution’s Article 370 is referred to as “temporary, transitional, and special Provisions” in the article itself. Thus, it might come to an end.
- However, the process for doing so should fall under the ambit of constitutional provisions that will support Indians’ diversity and togetherness.
