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Challenging changes under ‘Article 370’ in Supreme Court

  • Published
    11th Jul, 2023
Context

Recently, the Constitutionality of changes in Article 370 and removal of J&K's special status has been challenged before the Supreme Court.

  • The petitioner has asked concerns over President as a substitute for an elected state government and can Parliament represent the 'political aspiration' of the people of a state.

What were the changes made under Article 370?

  • On August 5, the Centre issued an order amending the Constitution (Application to Jammu and Kashmir) Order, 1954, and superseding it with The Constitution (Application to Jammu and Kashmir) Order, 2019.
  • The new order made “all the provisions of the Constitution” applicable to J&K state.
  • The government also amended Article 367 to add a new Clause (4), making the Constitution of India directly applicable to J&K.
  • Also the President issued a declaration under Article 370(3) making all its clauses inoperative except the provision that all articles of the Constitution shall apply to J&K.

What are the arguments against these changes?

  • There was no constitutional and legal mechanism available for the Centre to abrogate or amend Article 370.
  • The Centre, however, used the President’s powers under Article 370(1) (d) to amend Article 367, which provides guidelines to interpret the Constitution.
  • A new clause was added to Article 367, replacing “Constituent Assembly of the State” referred to in Article 370(3) by “Legislative Assembly of the State”.
  • Thus, the presidential order route under Article 370(1)(d) was used to amend Article 370 itself, whereas Article 370 could have been amended only upon the recommendation of the Constituent Assembly under Article 370(3), not through Article 370(1)(d).

Are powers of state government hampered?

  • The President, while imposing his direct rule in J&K, had assumed all functions of the J&K government, taken over all the powers of the Governor under both the Indian Constitution and the J&K Constitution, and extended the powers of the state legislature to Parliament.
  • This meant that the President of India was in effect the J&K state government, and Parliament was in effect the state legislature.
  • It has been argued that since President’s Rule in a state is in the nature of an interim arrangement until an elected government is put in place, the administration under President’s Rule cannot take decisions that change the very constitutional structure of the state.
  • Parliament cannot provide the view of a particular state legislature which in essence is the opinion of the people of that state.

Concerns highlighted:

  • The move to abolish the J&K Constitution has been challenged because the Legislative Assembly of J&K had no power under the J&K Constitution to recommend any amendment to any provision of the Constitution of India.
  • Article 147 of the J&K Constitution barred 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”.
  • It has been argued that this means even the J&K Legislative Assembly wasn’t legally competent to give consent to the President’s order.
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