Abrogating Article 370 – Legal Evaluation

Abrogating Article 370 is not something that the present Government of India (GOI) decided just at the tap of a hammer. It was much calculated and much weighed option by the Think Tank behind the execution of this step. Many of the people have marked this whole process as hasty decision by the Government after Pakistan's Prime Minister Imran Khan had a meeting with US President Donald Trump. In the press conference following the meeting the US President Donald Trump referred to some discussion between him and Indian Prime Minister Narendra Modi about Mediation for peace in Kashmir. This however would not be the case as we evaluate the steps by GOI.

We would also evaluate the legality of the Abrogation of Article 370 as well as Article 35A as there are almost 17 Petitions filed in the Supreme Court of India challenging the legality of the Abrogation of said articles through a Presidential Decree. But before that a brief history of Article 370 and Article 35A

Article 370 was adoption to the Constitution of India on October 17, 1949, almost 2 years after the Treaty of Accession was signed (October 26, 1947). This adoption was identified temporary in nature and provided autonomous status to the State of Jammu & Kashmir that included Ladakh, Jammu, Kashmir (including POK) as well as Gilgit Baltistan. This article became operative on November 17, 1952 while the Constitution of India was not yet adopted until 1956.

Article 35 A was added to the Constitution of India on 14 May 1954 through a Presidential Decree, -The Constitution Order, 1954, Applicable to Jammu and Kashmir. This discriminating article created the divide between Residents of Jammu and Kashmir as in 1947 v/s the refugees who migrated from Pakistan during the partition as well as the people from Valmiki Samaj who were brought to Jammu and Kashmir to do "menial" jobs. This article ensured that the later set of people are marked as "non-citizens" of state of Jammu and Kashmir with No rights at state level including jobs as well as Voting rights.

So, with regards to the Article 35 A, introduced by a Presidential Order and revoked / Abrogated through another Presidential Order, the legality doesn't;t make sense as neither the GOI followed Parliamentary Process then nor was it required on August 5, 2019 when it was abrogated.

That now brings us back to Article 370, abrogation of which is causing all the Noice in Parliament as well as Media by the opposition Parties as well as certain Opinions published across the Indian and Global Web and Print Media. For an evaluation of the Abrogation of Article 370, we review the now Abrogated clauses of Article 370, the article could not have been abrogated without the acceptance from the Legislative Assembly of Jammu and Kashmir, but the GOI did it. How did the GOI do that if the legality of the whole case can be questioned and when we have the Supreme Court that may review such passage of an Act in the Parliament. We know that if the Supreme Court would find the step to be illegal, there would be a Constitutional Disaster in the country including a defacement for the current Government. This calls for a review and evaluation of the pre-curser of the event with regards to Jammu and Kashmir -

1. Bhartiya Janta Party (BJP) supporting a Government with People's Democratic Party (PDP) and getting the detailed information on the overall Electoral base of PDP. With this step, BJP also ensured that PDP gets isolated from Indian National Congress (Congress) as well as National Conference (NC)
2. Background legal evaluation begins for abrogation of Article 370 under the then one Minister of India
3. BJP and PDP have a fallout, the state Legislative Assembly is dissolved and President's Rule is invoked in Jammu and Kashmir
4. Over a period of time the legal reviews are completed and strategy is formed to Abrogate Article 370
5. During its second term, under Narendra Modi led BJP Government, a bill is introduced in Parliament on the Reservation for Jobs in Jammu and Kashmir. Very aptly the rights of state Legislative Assembly are conferred to the Governor of the State, which most of the Opposition leaders do not oppose as the said bill was on "Reservation"
6. Once the Governor of State gets the rights of State Legislative Assembly, President doesn't have to then look for elected representatives forming the Legislative Assembly constituents and recommendation of the Governor is good enough as the recommendation of State Legislative Assembly
7. Governor of Jammu and Kashmir recommends Abrogation of Article 370 and a Presidential Order is issued to this effect
8. Bill is presented in the Parliament for Bifurcation of Jammu and Kashmir into two Union Territories of Jammu and Kashmir and Ladakh. This is passed by both the houses with required 2/3rd majority. Done deal, Constitutional process followed and adhered to

Now the above seven steps if evaluated and if understood would render any such petition as a mislead interpretation of the overall process and the two bills that paved the way to Abrogate Article 370. GOI achieved what it wanted to and to ensure better development in the region as well as counter the terrorism by limiting the trouble area.