This is a question of autonomy, not integration: Faizan Mustafa on the constitutional background of Article 370

06 August 2019

On 5 August, the union home minister Amit Shah announced in the Rajya Sabha that the Bharatiya Janata Party government had effectively nullified Article 370 of the Indian Constitution, which granted special status to Jammu and Kashmir. Shah tabled two bills in the upper house that necessitated revoking the special status guaranteed to the state. In addition to the bills—the Jammu and Kashmir Reorganisation Bill, 2019 and the Jammu and Kashmir Reservation (2nd Amendment) Bill, 2019—Shah also brandished a presidential order, dated the same day, which extended all the provisions of the Constitution to the state, defanging Article 370. Both bills passed in the house.

Following Independence, Article 370 had formalised the terms of Jammu and Kashmir’s accession to the Indian union—as stipulated in the Instrument of Accession. Among other things, Article 370 mandated that barring certain subjects—such as defence and foreign policy—the central government was required to seek the concurrence of the Jammu and Kashmir government before it could legislate in the state.

Yet, as the state has been under President’s Rule since December 2018, the centre circumvented this requirement—the presidential order allowed the governor to assent in lieu of the state legislature. Through the reorganisation bill, the government split the state into two union territories—Ladakh and Jammu and Kashmir. That the centre acted in the absence of a state government and through an executive order also raised questions about the constitutional validity of its decisions. To understand the legal nuances behind the move, Arshu John, an assistant editor at The Caravan, spoke to Faizan Mustafa, the vice-chancellor of the National Academy of Legal Studies and Research, in Hyderabad.

Arshu John: Could you explain the implications of the presidential order? What changes does it introduce and how did it circumvent earlier limitations on modifying Article 370?
Faizan Mustafa: The point is that Article 370 has been invoked to undo the special status [of Jammu and Kashmir] under it. The presidential order that was issued has been issued under Article 370. So, the government has seen the utility of 370. One of the major highlights of [this] action is that the government of India, it seems—it has not done today, but that seems to be the road it is taking—is going to give up its own special powers under 370. If 370 was giving special status to Jammu and Kashmir, simultaneously it was giving huge power to the central government to issue presidential orders and do whatever it wants in Jammu and Kashmir—any provision of the constitution it can extend, any provision of the constitution it can suspend. To do it in respect of any other state, it would require a constitutional amendment. But for Jammu and Kashmir, they were doing it through presidential orders.

Now as and when the government finally scraps 370—as we know, it has not scrapped it [yesterday]—then this special power of the central government will go. Keeping this in mind, the government has downgraded Jammu and Kashmir’s status to a status lower than the status of an ordinary state in India. They had a special status and they are not even a state today, they will become a union territory. The centre will have a major say in their administration. That is why the public order and policing, which are state subjects on which any state can pass a law and take a decision, they have been now kept with the central government.

Arshu John is an assistant web editor at The Caravan. He was previously an advocate practicing criminal law in Delhi.

Keywords: Jammu and Kashmir Constitution BJP Amit Shah Indian National Congress