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How Modi Govt Used J&K Constitution to Seek Concurrence of Governor, Defang Article 370

The decision-makers in the government were assured that every legal aspect has been taken care of and should a challenge be laid before a constitutional court, it would be repelled effectively by citing the same provisions which had so far kept the special status of J&K intact.

Utkarsh Anand | CNN-News18

Updated:August 7, 2019, 10:24 AM IST
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How Modi Govt Used J&K Constitution to Seek Concurrence of Governor, Defang Article 370
File photo of PM Narendra Modi (left) and BJP chief Amit Shah.
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New Delhi: The special provisions in respect of Jammu and Kashmir have been exactly the ones used by the Narendra Modi government to nullify operation of Articles 370 and 35A.

While legal luminaries delve into the soundness of Monday's presidential order that acted as the foundation of the monumental change, the NDA government, apart from a clause in Article 370 of the Constitution of India, also used the Jammu and Kashmir Constitution to achieve its objective.

Many would not realise that there is no provision of the President's Rule in J&K but the Governor's Rule is to be imposed by virtue of Section 92 of the Constitution of J&K. This provision is specific to J&K and was added as an additional safeguard.

Section 92, however, also played a crucial role in paving the way for the Governor to assume the role of the state legislature in J&K, which in turn led to the abrogation of the state's special status. Section 92 empowers the Governor of J&K to assume any and all functions of the state government when there is no elected government in place.

The presidential order substituted the term 'Constituent Assembly' of J&K as its 'legislative assembly' but to negate Article 370, the Centre still needed a recommendation from the Governor to meet the constitutional necessity.

It’s here the J&K Constitution came handy for the Modi government as it employed the special provision included in the J&K Constitution itself do away with the special status granted to the state under Article 370.

Section 92 (1) (a) of the J&K Constitution read as: "If at any time the Sadar-i-Riyasat is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the Sadar-i-Riyasat may by Proclamation assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or excercisable by anybody or authority in the State."

Under this provision of the J&K Constitution, the Governor could send his recommendation to the President, which enabled the latter to exercise his authority under Article 370(3) to hold that special status to the state shall henceforth cease to operate.

It was on Sunday night that J&K Governor Satya Pal Malik, using this authority under Section 92(1)(a) of the J&K Constitution, sent his recommendation to President Ram Nath Kovind. And then the President, treating this to be as good as recommendation of the state legislature, issued the new order that rendered Articles 370 and 35A inoperative.

Interestingly, the legal brains working with the government also cited some previous instances in the 1980s wherein the J&K Governor had exercised this authority and those decisions were later ratified by Parliament.

The decision-makers in the government were assured that every legal aspect has been taken care of and should a challenge be laid before a constitutional court, it would be repelled effectively by citing the same provisions which had so far kept the special status of J&K intact.

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