The Constitution (Application to Jammu and Kashmir) Order of 2019 is a historical move. Perhaps, this is a decision to achieve the Melting Pot theory. As the marginal note of Article 370 reads ‘Temporary…’, clause 1(d) of the Article has been used to pass over forty-five presidential orders to modify and progressively expand the powers of the Central Government with respect to Jammu & Kashmir since 1950. The Order of 2019 is an order of a similar nature that supersedes the previous orders and makes applicable to J&K all parts of the Constitution of India that were previously inapplicable, without exception. This is not a constitutional amendment and as has been done in the past, was validly passed by the President on the advice of the Council of Ministers. However, I want to clarify at the very beginning that this is not the only argument rather the issue involves complex interpretation and thus arguments may be given from different competing perspectives.
It appears that such an amendment in Article 367 can’t be done merely by an Executive Order as has been done by the Presidential Order 2019. Technically, any amendment in Article 367 can only be done in terms of Article 368 which talks about the power and procedure to amend the Constitution. Since the abolition of Article 370 requires a precondition i.e. the “recommendation of the constituent assembly of the Jammu and Kashmir State” and since no such Constituent Assembly exists, furthermore, even no Legislative Assembly is functional due to the Governor’s rule, hence, the abolition has been done with the concurrence of the Governor.
To put in other words, since Article 356 and Article 357 of the Constitution relating to suspension of the constitutional machinery in the State was extended by the Presidential Order of 1954, in cases of State Emergency all such powers vest in the Governor. Furthermore, unlike other states, Section 92 of the Constitution of J&K allows for a far more expansive Governor’s rule. Therefore, while the Assembly is in suspended animation, the Governor alone is embodied with the powers of the Assembly of J&K. Hence, as the 2019 order made correct notes that it is with the concurrence of the Government of J&K.
In any case, it is fallacious to suggest that Article 370 cannot be used to amend itself. Clause 1(c) talks about the applicability of Articles 1 and 370 to J&K irrespective of any Presidential Order. This is true that the J & K State has gradually become the test case to establish the hegemony of religious fundamentalism that has seriously affected the goal of secularism, right to equality, gender justice, unity and integrity of the nation, etc.
The true spirit of Kashmiriyat and Sufi tradition has been superseded by religious fundamentalism and terrorism. The nation has paid a very heavy price in terms of heavy loss of lives thousands of Indian armed personnel. The story of Kashmir is a complex story and no single narrative speaks the full truth. The present action of the Modi Government has to balance the nationalism with the legitimate aspirations of the people of J&K. The problem of this State can be solved within the framework of the Constitution of India that provides enough guarantee for the protection of the fundamental rights of every citizen. It is worth to see how the policies of the Modi Government facilitate the goal of melting pot theory in India.
Aditi is an amazing researcher and an articulate writer. She is also an avid reader and enjoys reading novels and articles. A little shy initially but very talkative once you know her. While Netflix remains her favorite leisure activity, she also has an awesome flair in drawing and craftwork and loves to draw in her free time.