Obviating the framework of Article 370 is intentionally mala fide: Senior advocate Rajeev Dhavan

09 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.

On 6 August, the first challenge to the presidential order was filed before the Supreme Court. Arshu John, an assistant editor at The Caravan, spoke to Rajeev Dhavan, a senior advocate and constitutional lawyer, about the grounds for a challenge to the presidential order. Dhavan explained why the changes to Article 370 required a constitutional amendment and traced how the parliament has historically followed such a practice.

Arshu John: Could you comment on the presidential order and the changes to Article 370?
Rajeev Dhavan: This order seeks to supersede a constitution—Jammu and Kashmir has a constitution devised by a constituent assembly. Therefore, Article 370 came into being [in 1950] while Jammu and Kashmir had not established its constitution. Article 370 was transitional only to the extent, and until, Jammu and Kashmir constitution came into place. That is the temporary part.

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

Keywords: Article 370 Article 35A Constitution Jammu and Kashmir Bharatiya Janata Party