In the aftermath of the Pulwama terror attacks, the Centre has come cracking down on separatists in Jammu and Kashmir and there is heightened tension in the state over the Centre's next move – a possible legal intervention to end the privileges provided to residents of Jammu and Kashmir under Article 370 and Article 35A of Indian Constitution.
Petitions challenging these two provisions of the Constitution are pending in the Supreme Court since 2014. These petitions are at a primary level of arguments and ultimately, the issue will require consideration by a Constitution Bench. But for the present, can there be any legal recourse available with the Centre to snap the special status of J&K requires consideration.
Experts are divided on the issue. According to some legal experts, both Article 35A and 370 are distinct in its nature and scope. While Article35A was introduced by way of a Presidential Order which makes discrimination in favour of residents of J&K in matters of jobs, right to acquire immovable property, scholarships and government aid and protects it from falling foul of our Constitution. Article 370 is part of the original Constitution which grants autonomous status to the state of J&K.
A senior lawyer representing the state on condition of anonymity said that there is no bar on issuing a Presidential Order to nullify Article 35A as it was born from a Presidential order of 1954. "Article 35A being born from a Presidential Order can even be withdrawn by a similar order. But there is a corresponding provision in the J&K Constitution (Section 6) which will still remain operational that defines permanent residents and rights and privileges available to them. This will have to be separately challenged."
There is a contrary view to this. "Under the J&K Constitution, Section 91 vests the Governor to exercise legislative powers on behalf of the state legislature, at a time when the House is not in session. At present, the Assembly stands dissolved and the Governor can issue Ordinance making amendments to the law applicable to permanent residents."
However, with regard to Article 370, a Presidential Order cannot be issued as the only way open for the Centre is to remove it by way of a Constitutional Amendment under Article 368. But proviso to Article 368 which applies to J&K expressly states that any Constitutional amendment to the Constitution of India will need concurrence of the State of Jammu & Kashmir.
According to advocate Sunil Fernandez, it is true that Article 370 was meant to be a temporary provision and in 370(3), President by way of a public notification can declare this Article to have ceased to be operative. But this cannot be done unless there is a recommendation of the Constituent Assembly of the State to do so.
In 1969, a Constitution Bench of Supreme Court in Sampat Prakash v J&K held that though Article 370 is only a temporary provision, it is in fact in current usage and will continue to be in force until the specified event in 370(3) takes place. Any challenge to Article 370 will require the Court to reconsider its 1969 decision, Fernandez said.
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