Constitutional propriety apart, the Presidential Order revoking Article 370 is patently illegal as it would defeat the very legal structure of Article 370, which has in fact been laid down by the apex court to be ‘not temporary’, according to Punjab Advocate General Atul Nanda.
Reacting to the revocation of Article 370, Nanda said on Monday that the amendment to clause 3 of Article 370 as per the Presidential Order, called the Constitution (Application to Jammu & Kashmir) Order 2019, had been effectively engineered without following the due process laid down in the Constitution itself.
According to the AG, the unamended Article earlier empowered the President to declare Article 370 as inoperative, but the "recommendation” of the "Constituent Assembly of the State” was necessary. This has now been amended to read "on the recommendation of the Legislative Assembly of the State”, he pointed out, adding that the next step would be to declare Article 370 as inoperative based on such "recommendation”.
However, said Nanda, the catch lies in the fact that the Government of India also simultaneously seeks to declare the J&K as a UT, which may be rendered unnecessary as Clause 2 of the Order states that all the provisions of the Constitution of India shall be applicable to J&K.
Elaborating further on the legal and Constitutional position, Nanda said the key question here was whether such a sweeping Presidential Order could have been passed at all. Pointing out that the Order is clearly an amendment of Article 370(3), which is a Constitutional provision, he said the first step, ideally, should have been a constitutional amendment of Article 370. And this, he said, should have been done by following the procedure laid down under Article 368, to include the changes now effected through the presidential order.
Clearly, this would have required the introduction of a separate Bill in each House to be approved by 2/3rd of the majority present and voting, according to Nanda. What is more, given that this also affects the representation of States in Parliament, the consent of half the States in India would also have been needed, he added. In the present circumstances, all these requirements have been bypassed – a clear violation of the Constitutional provisions.
Nanda further cited judicial decisions to corroborate the argument that the Constitution itself had been negated in the process of revoking Article 370. He pointed out that the Supreme Court 2018 ruling in SBI v. Santosh Gupta had decided several issues, including that Article 370 is not a temporary Article, even though so named. Further, it had laid down that the Union has the power to make laws only on those matters not covered by the Instrument of Accession, said the AG.
Undoubtedly, the old 1962 Supreme Court judgment in Puranlal Lakhanpal v. President of India has held that in exercise of his powers to apply provisions of the Constitution of India, the President may ‘amend’ a Constitutional provision for its application to J&K, according to the AG. However, he observed that it was unclear whether such power of modification could be used to amend Article 370 itself or simply to sweepingly apply the entire Constitution to J&K as has been done. This, he added, would defeat the very legal structure of Article 370.
With reference to Article 35A, Nanda clarified that the same had been essentially scrapped by the Presidential Order, which superseded the earlier Constitution (Application to Jammu and Kashmir) Order 1954. The 1954 Order, defining the constitutional position of the state of Jammu & Kashmir vis-à-vis the Indian Union, had originally added Article 35A, which allowed special privileges to the state’s ‘permanent residents’, as defined by the J&K legislature.