Home Minister Amit Shah sought to make it clear in Parliament last week that there was no change in the Centre’s stand on the issue of Article 370. Responding to the Opposition in Parliament, Shah emphatically said that Article 370 of the Constitution which extends special status to Jammu and Kashmir is a temporary provision, and this has been his party’s stated position and there is no change in its views. There has been an immense buzz over the possibility of the Centre moving to abrogate this provision but Shah stopped short of making any such statement, leaving it to anybody’s guess on if, how and when the government will move forward on Articles 370 and 35A.
While the Home minister’s views have been received well by his supporters, some have even advised the government to take the presidential route to do away with the said provisions. Senior BJP leader Subramanian Swamy welcomed Amit Shah’s statement and said that he should also highlight that to abolish the Article, the Centre needs just a presidential notification and not the Parliament vote. But is it as simple as it sounds?
In an exclusive conversation with Financial Express Online, constitutional expert and former Secretary General of Lok Sabha, Subhash C Kashyap explains the legal challenges ahead for the government if it wants to abrogate Articles 370 and 35A.
What is the status of Article 370? Is it a temporary or permanent provision considering the time it has been in effect?
The Constitution has a specific Part-21 devoted to temporary, transitional and special provisions. Under that, there is one Article — 370. Marginal heading for (Article) 370 is – temporary provisions with respect to Jammu and Kashmir. There is another Article for states like Nagaland, Maharashtra, Gujarat etc which is described as a special provision. There was another Article about some laws which was described as a transitional provision. So the Constitution makers made a difference between transitory, temporary and special provisions. Article 370 is specifically and categorically described as temporary. The media has been very often using the term special provision or special relationship – that is not correct. It is a temporary provision.
There are arguments that Article 370 has been there for over 70 years and the constituent assembly dissolved itself without making any recommendations on it. So, it has to be considered as a permanent feature. How do you see this line of argument?
The Constitution still describes it as a temporary provision. If the Constitution says it is temporary, then who is anybody else to call it permanent. The Constitution has not been amended yet to make it a permanent provision. The Constitution still says that it is a temporary provision.
The BJP wants to remove it, but the other side opposing the move is of the opinion that it is not legally possible in the absence of the constituent assembly. What do you think are the options before the government?
There are two views (of the people) on this. The first view is that since the constituent assembly is not there and the consent of the constituent assembly is a pre-condition for changing Article 370, therefore it can’t be changed now — on this ground, this has been taken as permanent. The second view is that in the Constitution, there can be no vacuum — there must be a successor to the constituent assembly. The successor can be Jammu and Kashmir government or Assembly or whosoever. There must be someone succeeding the constituent assembly and the consent of that body should be enough.
Now the other view is that Article 370 is an Article in the Constitution of India and under Article 368, any Article and every Article can be repealed or amended by Parliament. So under that provision of the Constitution, any Article can be repealed or amended by union parliament in accordance with the procedure prescribed there. So the second view is supported by this.
Can Article 370 be removed by a presidential notification as Subramaniam Swamy has been arguing?
No. For (Article) 370, you can not do it by notification. If you want to remove Article 370, you need a constitutional amendment. But as I said earlier, there are two views on this — whether that constitutional amendment will be valid in view of the requirement of the constituent assembly or it can be done through Article 368.
What about Article 35A? Can the government remove it by a presidential notification?
Article 35A is part of a 1954 presidential order issued under Article 370. And so far as the Constitution goes, since it was brought in a by presidential order, it can be changed by presidential order. The presidential order came in 1954 and it has already been changed a number of times since then. It can again be changed. So if Subramanian Swamy is referring to this, he is perfectly right in saying that it can be changed through a presidential notification. There is no legal problem in removing Article 35A through a presidential order. But that also requires the government’s consent and in this case, the government is now the Governor or the President. But whether it should be done and when is a political question that has to be decided by the politicians and the government.