Word Play

On August 5th, the Union government amended Article 370 in a day, effectively erasing Jammu and Kashmir’s (J&K) special constitutional status. Article 370 had granted J&K its own constitution and expansive control over internal administration.

How did the government do it? After all, Article 370 explicitly prevents the President from amending it without the consent of the J&K Constituent Assembly. And the J&K Constituent Assembly was dissolved in 1957.

Instead of amending Article 370 directly, the Union issued a Presidential Order amending Article 367. The amendment substituted the reference to ‘Constituent Assembly of the State’ in Article 370(3) with ‘Legislative Assembly of the State’. As the State is under President’s Rule, on August 5th, the Union Parliament exercised the powers of the State Legislative Assembly to amend Article 370.

On August 10th, the National Conference filed a PIL in the Supreme Court challenging the constitutionality of the Presidential Order for doing indirectly what it is prohibited from doing directly.

The Supreme Court has previously interpreted Article 370 on several occasions. Significantly in Mohd. Maqbool Damnoo (1972), the court upheld a Union amendment to Article 367 to interpret the meaning of ‘Government of the State’ in Article 370(1).

Will the court affirm Damnoo, or revise it taking into account the effacement of Article 370? The case is yet to be listed for hearing. All the while, the challenge to Article 35A regarding permanent residency in J&K remains pending.

Best,

SC Observer Desk

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