Title: A blow against Article 370
Issue: Article 370
Syllabus: General Studies-II - Indian Polity and Constitution - Federalism, Issues of States, Emergency Provisions
Context : Recently, 77th and 103rd constitutional amendment acts were extended to Jammu and Kashmir by a presidential order. With the concurrence of Governor during presidential order.
Erosion of Art 370
After the dissolution of constituent assembly of Jammu and kashmir, (the sole authority to give concurrence to presidential orders) many of the presidential orders were passed to extend union powers and laws to the state. These are extended to the state as amendments to Presidential order, 1954. These extensions happened with the concurrence of state government.
Sampat Prakash case : supreme court upheld this practice.
1986 order for extending Article 249 of the constitution
The 1986 order represents a second level of dilution. This is because it was made when J&K was under Governor’s rule as per Section 92 of the J&K Constitution. In the absence of an elected council of ministers, Governor’s concurrence was considered as the concurrence of the state Government.
2019 Presidential order to extend 77th and 103rd constitutional amendment acts - This order was given when state was under presidential rule. The Presidential order passed was approved by governor. During presidential rule - Governor exercises all powers subject to supervision and control of president.
Evidence / Background
- Only those provisions of the Indian constitution that correspond to Instrument of accession should be applied to the state.
- Other articles of the constitution that gave powers to union Government central Government would be applied to the state with the concurrence of state constituent assembly.
- Various constitutional powers of central Government can be extended to state only with he concurrence of the state Government. This concurrence was only provisional. The state Government’s authority to give concurrence lasted only until the state constituent assembly was constituted.
- Art 370 could be abrogated or amended only upon the recommendation of the state consistent assembly.
- It is supposed to be a temporary provision that was expected to be abrogated by constituent assembly. It did not do so and today with various judgements of SC and HC, it has become a permanent provision.
- After the dissolution of state constituent assembly, only authority that extend the powers of centre ceased to exist.
Take Home points : from 1954 presidential order to today, there is erosion of Art 370 and there by erosion of autonomy to Jammu and Kashmir.
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