How Shah and his men burnt the midnight oil to make scrapping of Article 370 legally tenable
New Delhi, Aug 07: Before taking any decision on Article 370, there were a host of issues that the government had to take care of.
Firstly, it had to legally tenable, secondly, secrecy around it had to be maintained and lastly, violence had to be under control in the Valley.
The consultations on legalities had been on for long. In fact, it was first suggested that Article 35A be withdrawn instead. However, the top leadership then decided that it would be better to do away with Article 370 instead.
When the go ahead from the legal team was given, the top brass began working the papers. For this, Union Home Minister, Amit Shah remained at his office for three consecutive days, holding deliberations and ensuring that the required paper work was complete.
There was utmost secrecy that was maintained before going ahead with the decision. It was during this period that National Security Advisor, Ajit Doval visited Jammu and Kashmir to take stock of the security situations. Upon his return, he briefed the Prime Minister and Home Minister about the situation and said that there would be no problem in going ahead.
Some of the officials who worked on this tell OneIndia that many did not go home for three to four days when the final touches were being given. The calls were restricted so that word does not get out.
The government was in fact working on two aspects- scrapping Article 370 and dividing Jammu and Kashmir and Ladakh into two Union Territories.
The other challenge was that there was no government in Jammu and Kashmir. The law mandates that any recommendation of this nature should be sent by the state assembly.
In the presidential order, changes in the text of the Constitution were brought about to imply that all provisions of the Constitution will now be applicable to Jammu and Kashmir.
The order said, " all provisions of the Constitution as amended from time to time shall apply in relation to Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply."
Further in the absence of a state government, the order stated that the Governor shall exercise the powers of the elected government and will express the will of the state legislature in making recommendations to the President in relation to Article 370.
References to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advise of his Council of Ministers.
In the Presidential order, there was a key change, which amended the term constituent assembly to legislative assembly of the state. In Article 370 sub-clause (3) it stated that the Article can cease to operate by way of a presidential order, but a recommendation of the Constituent Assembly would have to be placed.
This was done to avoid legal hurdles on the clause of recommendation. The first part of the order gives authority of the Legislative Assembly to Governor and then Constituent Assembly was changed to mean Legislative Assembly. In broad terms this means that the President was well within his rights to issue an order upon the recommendation by the Governor.