On August 5, the Upper House of Parliament adopted a resolution to recommend to the President of India that the special status granted to Jammu and Kashmir under Article 370 of the Constitution be revoked.

Passed back in October 1949, Article 370 exempts Jammu and Kashmir from all Articles of the Indian Constitution, except for two—Article 1, which lists all the states and Union Territories of India, and Article 370 itself. It means that “the residents of the state live under different laws from the rest of the country in matters such as property ownership and citizenship.”

Basically, Article 370 limits Parliament’s legislative powers over the state.

However, Article 370 can only be repealed/abrogated along with a constitutional amendment made in accordance with Article 368. But Amit Shah didn’t move any such Bill in Parliament yesterday. Instead, the government used the very same Article 370 to announce that the special status awarded to J&K has now ended—and they did so via a Presidential Order.

Rajya Sabha also passed a Bill to split Jammu and Kashmir into two Union territories: one of Jammu and Kashmir (which will have a legislature), and Ladakh (which won’t). 

Speaking with Newslaundry, Senior SC Advocate Colin Gonsalves, who is also the founder of Human Rights Law Network (HRLN), breaks down the legality behind revoking Article 370, and the validity of such a constitutional amendment.

“There is confusion both ways, in a sense that it’s not black and white. It’s not as if the government’s position is 100 per cent wrong,” he said, speaking with Newslaundry over the phone. “It all depends on the interpretation of a previous judgement of the Supreme Court called Sampath Prakash vs State of Jammu & Kashmir & ANR (October 10, 1968.) According to me, Sampath Prakash is wrongly decided.”

The apex court’s October 10, 1968, Constitution Bench judgment in Sampat Prakash v State of J&K clarified the position on Article 370 saying it had never “ceased to be operative”.

It further held that “there can be no challenge on this ground to the validity of the Orders passed by the President in the exercise of the powers conferred by this Article.”

Gonsalves said: “In October 1968, the five-judge Constitution bench in Sampath Prakash judgment held that Article 370 (3) could still be used to issue Presidential Notifications to amend the Constitution even though the State’s Constituent Assembly had ceased to exist. This judgement is flawed in my opinion. Interpreting the Constitution thus, directly against the wording of the Article which required the concurrence of the Constituent Assembly was unparalleled because the Constitution is never interpreted as if a vital clause has no significance at all.”

Gonsalves believes that since the judgement is wrongly decided, it is a case fit for appeal. He said: “One doesn’t interpret a clause of the Constitution as meaningless. The Court said that the clause concurrent is meaningless which is a fatal flaw in the interpretation of the Constitution.” 

“Can one amend the Constitution of India by way of Presidential Order? Or must one amend it by the Amendment clause which is Article 368 of the Consitution? You see, Article 368 of the Constitution permits all amendments, anywhere in the Constitution. There was a special provision for the amendment of Article 370—and that is Article 370 sub-article 3. This says that if you want to use the President’s Notification route—it must be with the concurrence of the Constituent Assembly.”

“It is very categoric,” said Gonsalves. “Now, since the Constituent Assembly does not exist, Article 370 sub-article 3 route is closed. Once Article 370 sub-article 3 cannot be used, it means that you can no longer use the Presidential Notification (President’s Order) route (this is amended as well). Therefore, you have to go by Article 368, which is the general amending power of the Constitution.”

“Now, there is a judgement (Sampat Prakash)…but that is wrongly decided (according to me), which means that a Court must be willing to hear the argument that it is wrongly decided.”

When asked whether the August 5 amendment can be challenged in a court of law going ahead, he said: “Of course, you can challenge it in a court of law, but it is a very complex and interesting point of law. If the Constitution says that you have to take the concurrence of the Constituent Assembly, and if you want to change that from Constituent Assembly to state assembly, that itself is an amendment of the Constitution. You can amend it, but you have to use Article 368—which is going to Parliament, getting an amendment done, and then changing it from concurrence of the Constituent Assembly to concurrence of the state assembly.” 

“There is only one route. You choose not to take it and you choose to do a Presidential Order to amend the constitution—and that cannot be done.”

When asked what did the August 5 amendments mean for the future of Jammu and Kashmir, Gonsalves said: “Well, legally speaking, it might depend on how a court looks at it, but what we are looking at in Kashmir is a lot of turmoil and despair—which is totally unnecessary for the BJP—because they (the BJP) have had such a huge mandate for the first time in its life, both, political and historical. Instead of concentrating on dividing the country, they could have concentrated on healing the country. This wonderful opportunity is now lost forever and we are going to feel the repercussions of this for quite some time.”