Scrapping Article 370: Constitutional and legal challenges

Petitions have been filed in the Supreme Court challenging the recent action of the Union Government on Jammu and Kashmir, the following legal issues may receive attention in the course of judicial deliberations.

♤ Legality of the Presidential order: Article 370 itself cannot be amended by a Presidential Order. Even though the Order amends Article 367, the content of those amendments, however, do amend Article 370. And as the Supreme Court has held on multiple occasions, you cannot do indirectly what you cannot do directly. Therefore, legality of the order – insofar as it amends Article 370 – is questionable.

♤ Misusing the President Rule and Making Governor as a substitute for the elected assembly: The governor is the representative of the Union Government in the State. In effect, the Union Government has consulted itself. Also, President’s Rule is temporary and is meant to be a stand-in until the elected government is restored. Consequently, decisions of a permanent character – such as changing the entire status of a state- taken without the elected legislative assembly, but by the Governor, are inherently problematic.

♤ Equating state assembly with constituent assembly: The difference is that the one has to exercise its powers as per the constitution, while the other develops the constitution. This distinction that is at the heart of India’s basic structure doctrine that prevents certain constitutional amendments on the ground that Parliament, which exercises representative authority, is limited and cannot create a new constitution and thereby exercise sovereign authority.

♤ Going against the Jammu and Kashmir’s Constitutional position: Presidential order has assumed that legislative assembly has power to scrap Article 370. But Article 147 of the Jammu and Kashmir Constitution prohibits such a move. The Article makes it clear that any changes to the Jammu and Kashmir Constitution needs the approval of two-thirds of the members of the legislative assembly.