Govt move on J&K special status may face legal hurdles
The government may have managed to pass in the Rajya Sabha resolutions and legislations bifurcating Jammu & Kashmir into two Union Territories, and scrapping the special status given to the state and its permanent residents, but the changes, which will be passed by the Lok Sabha on Tuesday, could be challenged in court according to experts.
That’s because the government has used a new presidential order to scrap a 1954 one that gave rise to Article 35A that provides special privileges to the state’s permanent residents, but some legal experts say a constitutional provision cannot be revoked by a presidential order.
The constitution order introduced on Monday changes Article 367 by a presidential order.
Senior Advocate and constitutional expert Jaideep Gupta asked: “Prima facie, the legal question that arises is, can a constitutional provision, article 367, be amended by a presidential order?”.
The order also introduces a new clause that equates the Governor, advised by a council of ministers to the government of the state, and the legislative assembly to the state’s now defunct Constituent Assembly.
This is questionable, Gupta added.
Supreme court advocate Sunil Fernandes echoed this and said “there is a legal flaw in amending article 367”.
According to Fernandes, this could have been done only under Article 368 which allows parliament to modify any provision, even a temporary one.
The government is actually within the law argued noted lawyer Harish Salve. All that has happened is that a 1954 order has been superseded. “There seems to be some misunderstanding that article 35 A was a part of the constitution and that has been done away with, but let me say that 35A was never a part of the constitution,“ said Harish Salve.
Nor, he added, has Article 370 been revoked.
If Salve is right -- and it is a fact that 370 hasn’t been revoked -- then the argument that the basic structure of the Constitution has been changed (and this cannot be done, even by parliament) will not hold, experts said.
The second contentious issue in the constitutional order pertains to the concurrence of the state of Jammu and Kashmir. The new order says it was being passed by the President with the concurrence of the state government . Since the state is under President’s rule right now, the government’s argument is that this means the governor.
Gupta isn’t convinced.
“Under Article 370, a presidential order can be passed after a recommendation by the constituent assembly. Since the constituent assembly for the state of Jammu and Kashmir was wound up in 1957, giving effect to this condition becomes impossibility. A prudent approach is that the functions are transferred to the state assembly. But questions can always be raised that in the absence of a state assembly, can the governor of the state exercise the extraordinary functions like expressing the will of the people? Ordinary functions of the assembly can be exercised by the governor, but on a grave issue like 370, questions can be raised?”
Indeed, can a person widely seen as the Centre’s nominee do this, asked Supreme Court advocate Viplav Sharma.
Adding to the controversy, is also the bill that reorganizes the state of Jammu and Kashmir and bifurcates it in two separate union territories: Ladakh and Jammu and Kashmir. The legality of doing this without the concurrence of an elected state government may also be challenged in court.