Is Abrogation of Article 370 Unconstitutional

1. Introduction to article 370

Article 370 was added to the Indian Constitution on October 17, 1949. It granted Jammu
and Kashmir the authority to function as an independent state and excluded it from the
Indian Constitution (apart from Articles 370 and 1). Under this provision, the state
government's consent was required for the centre to implement any law, with the exception
of defence, foreign affairs, communications, and a few other matters listed in the Instrument
of Accession (IOA).

According to Article 370, Jammu and Kashmir is exempt from Article 238 and is subject to
Article 1 and Article 370. Other provisions of the Indian Constitution are also applicable to
the state, with the President's order able to specify any exceptions or modifications.
Additionally, it says that the President may amend or repeal Article 370 whenever he
pleases, but he must do so only on the Jammu and Kashmir Constitutional Assembly's
advice.

2.The Abrogation

On August 5, 2019, Union Home Minister Amit Shah declared in the Rajya Sabha that Article
370 of the Indian Constitution, which gave the State of Jammu and Kashmir special status,
had been formally revoked by the Indian government. Shah presented two bills in the Rajya
Sabha that required the state's special status to be revoked. Shah also flaunted a presidential
order dated the same day that defied Article 370 and extended all of the Constitution's
provisions to the state, in addition to the billsthe Jammu and Kashmir Reorganisation Bill,
2019 and the Jammu and Kashmir Reservation (2nd Amendment) Bill, 2019.
The house approved both bills.[1] According to Mr. Ramnath Kovind's Presidential Order, the
State of Jammu and Kashmir will now be subject to all provisions of the Indian Constitution.
Additionally, Article 370 (3) of the Constituent Assembly will now be interpreted as the
Legislative Assembly.

By virtue of these orders, the State of Jammu and Kashmir's separate constitution will no
longer be in effect, the Indian Penal Code will replace the Ranbir Penal Code, and Article
35Awhich draws a distinction between JK's permanent residents and outsiderswill also
be immediately terminated. Additionally, Kashmiri women would no longer lose their
inheritance rights if they married outside of Kashmir.

3. Constitutionality

A two-thirds majority of the present and voting members of Parliament is required to amend
the Constitution. In the case of Article 370(1), however, the President of India has the
authority to revoke the article at any time, but only if the State Government of Jammu and
Kashmir recommends it.

Since the state of Jammu and Kashmir currently lacks a government, the order was passed
after consulting with the governor of the state. According to Article 155 of the Indian
Constitution, the president of India appoints the governor of a state, so the governor of a
state is considered a representative of the Union Government, In doing so, the Union
Government has contravened Article 370(1) by consulting itself.

The Indian Constitution grants the authority to interpret its provisions. Article 367 was
modified and a new subclause, "For the purposes of this Constitution as it applies in relation
to the State of Jammu and Kashmir," was added by Presidential Order. This changed the
meaning of "Constituent Assembly of the state" to "Legislative Assembly of the state,"
adding a proviso to Article 370, clause 3.

By doing this, the President exercises his authority under Article 370(1) to change a section
of the Constitution (Article 367), which modifies Article 370(3) and eliminates the need for
the consent of the Constituent Assembly to change Article 370 in the future. And this in turn
serves as the catalyst for the statutory resolution, which suggests to the President the repeal
of (the majority of) Article 370 (since the consent of the Constituent Assembly is no longer
necessary).

Because JK is now a Union Territory and is governed by the President, there is currently no
legislative assembly. According to this new interpretation of Article 370(3), the President
could abrogate Article 370 in recommendation with legislative assembly. The parliament was
tasked with making recommendations for the newly modified article, and the union home
minister then issued a recommendation to the President to abrogate Article 370.
In addition, the introduction of the bill resulted in the entire state of Jammu and Kashmir
being turned into a public jail, the state's political leaders being placed under house arrest,
and the state's populace being deprived of their fundamental rights due to section 144 of
the Criminal Procedure Code, which prohibits gatherings of more than five people in one
location.

The people of Jammu and Kashmir had no say in decisions pertaining to their state, and this
was a blatant violation of their fundamental right to life and liberty. The union government
deftly got around several limitations stipulated in the Indian constitution. Suspension of
Internet, TV, and telecommunication services further hindered fundamental right to
freedom of speech and expression.

4. Present Situation

As of right now, the state is still suspending internet service, but calling services have
resumed in the state's lower regions, including Jammu, Udhampur etc. However,
telecommunication services are still being suspended in Srinagar, and residents are still
cautioned not to travel around uninvited due to a serious security risk. A significant number
of troops have been stationed there to ensure that nothing untoward occurs.

When it comes to public opinion, some are neutral, stating that they believe nothing will
change and that everything will return to how it was. On the other hand, some are happy,
stating that this decision will increase state revenue and provide employment opportunities
for the unemployed youth in the state. Still others believe that the government should
consider how other states are developing before making promises to us about employment
opportunities, given that several large cities where the Indian government has ruled on its
own since independence have high unemployment rates and are still underdeveloped. How
can this be different for the state of Jammu and Kashmir?
Many people wonder when things in Jammu and Kashmir will return to normal and whether
they will have a bright future or darkness will win out in the future.

5. Conclusion

The decision on article 370 is undoubtedly historic, but it is unclear what it will mean in
practice and whether it will resolve the long-running dispute between the Indian
government and the people of Jammu and Kashmir over their sense of national identity or
whether it will address other issues that have impeded the state's progress.
However, it can be argued that the bill's introduction and execution could have been done
more effectively. Firstly, the constitution's provisions shouldn't have been disregarded.
The people and political leaders of Jammu Kashmir State ought to have been consulted to
determine whether or not they support this. Finally, there shouldn't have been such a severe
violation of the state's citizens' fundamental rights.

6.CITATION

1. Introduction, Abrogation, constitutionality, present situation, conclusion are available at
https://www.legalserviceindia.com/legal/article-2020-is-abrogation-of-article-370-
unconstitutional.html ( Last visited on 26 November )

2. About article 370 is available at https://indiankanoon.org/doc/666119/ ( Last visited on 24 November )