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Insights into Editorial: A blow against Article 370
On March 1, 2019, the 77th and 103rd constitutional amendments were extended to Jammu and Kashmir (J&K) by a presidential order, with the concurrence of the J&K Governor.
77th constitutional amendment: relates to reservations in promotions for Scheduled Castes and Scheduled Tribes in the State services
103rd constitutional amendment: relates to special provisions for the advancement of economically weaker sections (10% reservation in education and government jobs to EWS).
However, recently, this was challenged before the J&K High Court. Previously also, a petition has been filed in the Supreme Court challenging the continued existence of Article 370, which gives a temporary autonomous status to the State of Jammu and Kashmir and restricts the power of Parliament to make laws for the State.
What is article 370 Guaranteed By Constitution of India?
The Article 370 is defined under Part XXI of the Indian Constitution which deals with Temporary, Transitional and Special Provisions.
Though in this part (Part XXI) special provision are given to the states of Maharashtra, Gujrat, Nagaland, Assam, Manipur, Sikkim, Mizoram, Arunachal Pradesh and Goa, the special power and provision of J & K are nowhere when compared.
Article 370 restricts Indian parliament to make any laws for the state and it can only preside over the subjects like Défence, External Affairs, and communication.
Laws related to union and concurrent list in J & K can be passed only after consultation with the state government.
Brief Background of Article 370:
Article 370 of the Indian constitution is an article that gives autonomous status to the state of Jammu and Kashmir.
The article is drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions.
The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether.
After the J&K Constituent Assembly later created the state’s constitution and dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.
While the article was created to give temporary, transitional, special provisions, it has become a Permanent feature.
In the years since Independence, this article was to be removed. But due to unwell administration and wars between India and Pakistan, this article has not been touched.
Present order in President’s rule: Against federalism
The manner in which the 2019 order was made also goes against the spirit of federalism, which is a salient constitutional principle.
President’s rule is an exception to the general constitutional scheme that envisages representative government at the State level to accommodate regional aspirations.
This Dilution in Governance and Administration: A slow death
The sheer number of such orders, as well as the circumstances under which they were made, have considerably eroded J&K’s special status under Article 370.
From the 1950s there has been a gradual dilution of the procedural norms followed by these presidential orders.
While passing the 1954 order, procedural propriety was followed in the fullest possible sense with concurrence from an elected State government and also State Constituent Assembly.
However, the presidential orders made after the dissolution of the State Constituent Assembly except a 1986 order extending Article 249 (Article 249 deals with Power of Parliament to legislate with respect to a matter in the State List in the national interest), and the present 2019 order can be seen as the first level of dilution.
Because, though concurrence of an elected State government was obtained, the State Constituent Assembly did not exist and, therefore, could not give its ratification.
The 1986 order represents a second level of dilution. This is because it was made when J&K was under Governor’s rule as per Section 92 of the J&K Constitution. Governor acting without a popularly elected government can be considered as a “state government” for the purposes of concurrence.
In the absence of an elected council of ministers, the Governor could not have validly given the requisite concurrence to the presidential order. 1986 order was challenged in the J&K High Court and is still pending.
According to Author: The recent 2019 order can be considered third level of dilution.
In December 2018, the President assumed all the functions of the State government and the Governor through a proclamation under Article 356.
In an order passed on the same day, the President directed that all powers assumed by him would be exercisable by the Governor as well, “subject to the superintendence, direction, and control of the President”.
During Governor’s rule, as was the case in 1986, the Governor is at least on paper expected to act independently.
However, in the present case involving President’s rule, the Governor is reduced to a mere delegate of the Centre and is expected to act as per the aid and advice of the Central Government.
A presidential order made through obtaining such a Governor’s concurrence is tantamount to the Centre talking into a mirror and makes a mockery of Article 370.
Extending constitutional provisions to the State during this exceptional state of affairs is suspicious.
If the Centre had legitimate intentions, it should have waited until the formation of an elected government in J&K. In the absence of popular will backing it, the 2019 order clearly falls foul of the principles of constitutional and political morality.
Commenting on the 1986 order, the Sarkaria Commission had observed that “every action which is legally permissible may not be necessarily prudent or proper from the political stand-point”.
Not only is the recent presidential order against federalism generally and the spirit of Article 370 in particular but it also violates the letter of the Constitution.