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A blow against Article 370
Why in news?
- On March 1, 2019, the 77th and 103rd constitutional amendments were extended to Jammu and Kashmir (J&K) by a presidential order, with the concurrence of the J&K Governor.
- These relate to reservations in promotions for Scheduled Castes and Scheduled Tribes in the State services and special provisions for the advancement of economically weaker sections, respectively.
More in news
- Erosion of Article 370:(1) 1954 presidential order extended various provisions of the Indian Constitution to J&K.(2) After the J&K Constitution came into effect in 1957, the State Constituent Assembly was dissolved.(3) Since then, more than 40 such orders have been made, through which most constitutional provisions have been extended to the State.(4) Such orders have considerably eroded J&K’s special status under Article 370.
History of diluton of 370
- 1954 Order:(1) In 1954 order the procedural propriety was followed in the fullest possible sense as the requisite concurrence was obtained not only from an elected State government but also the State Constituent Assembly.(2) This is so because for all these orders, while the concurrence of an elected State government was obtained, the State Constituent Assembly did not exist and, therefore, could not give its ratification.
- 1986 Order:(1) It represents a second level of dilution, because it was made when J&K was under Governor’s rule as per Section 92 of the J&K Constitution.(2) In the absence of an elected council of ministers, the Governor could not have validly given the requisite concurrence to the presidential order.
- 2019 Order:(1) In December 2018, the President assumed all the functions of the State government and the Governor through a proclamation under Article 356.(2) In an order passed on the same day, the President directed that all powers assumed by him would be exercisable by the Governor as well, subject to the superintendence, direction, and control of the President.
- Problems with 2019 order:(1) During Governor’s rule the Governor is at least on paper expected to act independently.(2) the present case involving President’s rule, the Governor is reduced to a mere delegate of the Centre and is expected to act as per the aid and advice of the Central Government.(3) A presidential order made through obtaining such a Governor’s concurrence is tantamount to the Centre talking into a mirror and makes a mockery of Article 370.
Conclusion
- Commenting on the 1986 order, the Sarkaria Commission had observed that “every action which is legally permissible may not be necessarily prudent or proper from the political stand-point”.
- Not only is the recent presidential order against federalism generally and the spirit of Article 370 in particular but it also violates the letter of the Constitution.
Source
The hindu