Amendment in Article 370 with Evolution of new Union Territories

Article 370 was inserted in the constitution of India in part XXI as temporary provisions with respect to the state of J&K. It shows that it was inserted for short term and it may be repealed or abrogated or modified in accordance with the situations in the state when need arises to repeal this Article.

On 6th day of August, 2019 by the Presidential Order with Declaration under Article 370

(3) of the Constitution of India  special status of J&K has been ended. With this amendment state of J&K became an integral part of India in practical manner. The de-operationalization of article 370 converted the State of J&K into Union Territory of J&K and Union Territory of Ladakh in the mainstream. Mainly it has given relief to Ladakh much more which was isolated part of India. By this amendment development of U T of Ladakh can be easily possible.

Flashback to Article 370 and 35A

Under section 311 of Government of India Act, 1935, India was defined as  British India including princely states . With the end of British rule in India and after independence, J&K decided not to join India nor Pakistan. The ruler of J&K Raja Hari Singh decided to be as an independent province. But when on 22 October, 1947 armed men backed by Pakistan attacked on J&K then Hari Singh signed the Instrument of Accession on 26 October, 1947 with the then Prime Minister Jawaharlal Nehru and agreed to become a part of India for the safety of J&K.

After some times when Constitution of India was made applicable on 26 January, 1950 then all provisions of this constitution was not applicable J&K by virtue of Article 370. The sole purpose of inserting Article 370 was to provide temporary relaxation to J&K from the laws of India.

In 1952, Delhi Agreement was signed between Prime Minister Jawaharlal Nehru and Sheikh Abdulla. Under which, the citizenship of India was opened for J&K citizens, and they were accepted as citizens of India. To provide strength to Article 370 and for given special status to J&K, after the Delhi Agreement 1952 Article 35A has been added by the Ordinance of the President on 14th May, 1954. And after this, in 1956 constitution of J&K had been formulated.

Constitutional validity of abrogation of Article 370

Art 370 (3) stated that,  The President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

Here it was said that provision of this article may be repealed or modified by the President of India with the recommendation of  Constituent Assembly  of the state referred in clause (2). It means here  Constituent Assembly  had a vital role to play. Amendment in article 370 is possible on recommendation of  Constituent Assembly  only. As  Constituent Assembly  was

dissolved in 1956, so currently it does not exist. In this situation an amendment can be made in respect of interpretation of term  Constituent Assembly  by the President of India on recommendation of Parliament by passing an Ordinance by using his power provided by article 372. In this regard, Article 367 has been amended to add sub article 367(4), which is as under:

Article 367

(4) For the purposes of the Constitution as it applies in relation to the state of Jammu and Kashmir-
(a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said state;

(b) references to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir;

(c) references to the Government of the said state shall be construed as including references to the Governor of the Jammu and Kashmir acting on the advice of the Council of Ministers; and

(d) In proviso to clause (3) of Article 370 of this constitution, the expression  Constituent Assembly  of the State referred to in clause (2)  shall read  Legislative Assembly of State.

And by the virtue of Article 356, in the case of Presidential Rule in any State, the power of Legislative Assembly vests into the Parliament.

So the amendment made by the president on recommendation of  Constituent Assembly  i.e. Legislative Assembly  now, and at the time of presidential rule (at the time of Presidential Rule, the Legislative Assembly means Parliament) is constitutionally valid. Because Parliament having all powers of Legislative Assembly now made a recommendation to the President to amend article 370 and this is according to the provisions of the Constitution.

By exercising his power conferred by Article 370 (3), the President passed the Ordinance to abrogate the Article 370 partially not fully and declared that from 6th August, 2019 all clauses of the said Article 370 shall cease to be operative except the following which shall read as under, namely:-

Article 370 All provisions of this Constitution, as amended from time to time, without any modification or exception, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgment, ordinance, order, by – law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.

And with the amendment in article 370, the Bill of Reorganization of J&K also passed. And it gave a birth to 2 new Union Territories of India i.e. Union Territory of J&K and Union Territory of Ladakh. In which Union Territory of J&K will be with State Legislature and Union Territory of Ladakh will be without State Legislature and this way an isolated part of India came into mainstream. And this way development of whole country will be possible. It made possible to reality of the phrase One Nation, One Constitution and One Flag.