Will Presidential order on Article 370 stand the legal test?
New Delhi, Aug 05: The Centre today announced that it was scrapping Article 370, which granted special status to Jammu and Kashmir.
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.