ARTICLE 370 w.e.f. 6TH AUGUST, 2019

Article 370

🔵 THE DEVELOPMENTS OF 2019:

Constitution (Application to Jammu and Kashmir) Order, 2019
C.O. 272    5 August 2019

• In exercise of powers conferred by clause (1) of article 370
  • the President, with concurrence of the Govt of the State of Jammu and Kashmir, is pleased to make the following Order:
• This Order
  • may be called the Constitution (Application to Jammu and Kashmir) Order 2019
  • shall come into force at once and shall thereupon supersede the Constitution Order 1954
• All provisions of the Constitution as amended from time to time
  • shall apply to the State of Jammu and Kashmir
• These provisions shall apply with the following exceptions and modifications:
• To article 367, there shall be added the following clause:

(4) For purposes of this Constitution as it applies to the State of Jammu and Kashmir

• (a)
  • references to this Constitution
    • shall be construed as references to the Constitution as applied in relation to the said State
• (b)
  • references to the person
    • recognized by the President on recommendation of the Legislative Assembly of the State
    • as Sadar-i-Riyasat of Jammu and Kashmir acting on the advice of Council of Ministers for the time being in office
    • shall be construed as references to the Governor of Jammu and Kashmir
• (c)
  • references to the Govt of the said State
    • shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers
• (d)
  • in proviso to clause (3) of article 370:
  • the expression “Constituent Assembly of the State referred to in clause (2)”
    • shall read “Legislative Assembly of the State”

📝 Explanatory Notes by DLA on CO 272 dated August 5, 2019

• The Presidential Order uses Article 370(1)(d) to apply all provisions of the Indian Constitution (other than Articles 1 and 370 – which are already applicable) to J&K.
• The concurrence of J&K government is necessary to effect such a step but since J&K is presently under President’s rule and has no state government, this was effectively dispensed with.
• While applying provisions of the Constitution to J&K, the President effected one ‘modification’ to Article 367.
• In Article 367, the Presidential Order inserts a new sub-clause (4)(d) which states that the words “Constituent Assembly” in Article 370(3) must be read as “Legislative Assembly of the State”.
• The government has sought to overcome the problem of the Constituent Assembly not having abrogated Article 370 by requiring that “Constituent Assembly” in Article 370(3) be read as the J&K Assembly.
• By doing so, it now becomes possible for the J&K Assembly to do what the Constituent Assembly did not i.e. recommend abrogation of Article 370.
• To be clear, the President has not amended Article 370(3) itself because he does not have the power to do so.
• He can only modify other provisions of the Constitution when making them applicable to J&K.
• Applying this new interpretation of Article 370(3), the President could have abrogated Article 370 upon a recommendation to this effect being made by the J&K Assembly.
• But since J&K is now under President’s rule and has no legislative assembly at the moment, it fell upon Parliament to make this recommendation under the newly ‘modified’ Article 370(3).

📘 Further Notes

• The President’s power to modify the Constitution under Article 370(1)(d) is only limited to J&K.
• The power to amend the Constitution vests exclusively with Parliament.
• Currently therefore, the Constitution as it is applicable to J&K contains Article 367(4)(d) which requires ‘Constituent Assembly’ in Article 370(3) to be read as the J&K Assembly but this is only applicable to J&K.
• A formal amendment to Article 367 or Article 370(3) would strengthen the President’s hand as and when he does issue a notification to abrogate Article 370.

🔵 Declaration under Article 370(3) of the Constitution:
C.O. 273    6th August, 2019

• In exercise of powers conferred by article 370(3) read with article 370(1):
• the President is pleased to declare
  • on the recommendation of Parliament
• that all clauses of article 370 shall cease to be operative from 6th August 2019
  • except the following:

Article 370:

• All provisions of this Constitution, as amended from time to time
  • without any modifications or exceptions
  • shall apply to the State of Jammu and Kashmir…
• notwithstanding anything contrary
  • in article 152 or 308 or any other article of this Constitution or
  • in any other provision of the Constitution of Jammu and Kashmir or
  • in any law, judgment, order, by-law, rule, regulation, notification, custom or usage having the force of law in India or
  • in any other instrument, treaty or agreement as envisaged under article 363 or otherwise

📘 THE PRESENT POSITION:

Article 370:

• All provisions of this Constitution
  • shall apply to the State of Jammu and Kashmir…
  • without any modifications or exceptions

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❓ FAQs on Article 370 (2019 Amendments & Current Position)