The abrogation of Article 370 was not done with the involvement of the Jammu and Kashmir Legislative Assembly because the assembly had been dissolved in 2018, placing the region under President’s Rule (direct rule by the central government). Instead, the Indian government used a specific constitutional mechanism to bypass the need for the state’s assembly.
Here’s a breakdown of how the abrogation occurred:
Constitutional Mechanism Used:
- Article 370(3) of the Indian Constitution allowed the President of India to declare Article 370 inoperative, but only with the recommendation of the Constituent Assembly of Jammu and Kashmir. However, since the Constituent Assembly ceased to exist in 1957, there was no body to give such a recommendation.
- To circumvent this, the Indian government used the provision in Article 370(1)(d), which allowed the President to apply provisions of the Indian Constitution to Jammu and Kashmir with “the concurrence of the state government.”
How the Process Unfolded:
- President’s Rule: Since the Jammu and Kashmir Legislative Assembly was dissolved, the region was under President’s Rule, meaning the central government was exercising the powers of the state government.
- Presidential Order: On August 5, 2019, the President of India issued a presidential order (Constitution (Application to Jammu and Kashmir) Order, 2019) with the concurrence of the Governor of Jammu and Kashmir, acting on behalf of the dissolved state assembly. This order amended Article 370, applying all provisions of the Indian Constitution to Jammu and Kashmir.
- Parliamentary Approval: The Indian Parliament passed a resolution recommending the abrogation of Article 370 (using Article 370(3)) based on the concurrence of the Governor. Both houses of Parliament (Lok Sabha and Rajya Sabha) approved this resolution.
- Reorganization of J&K: Following the abrogation, Parliament passed the Jammu and Kashmir Reorganisation Act, 2019, bifurcating the state into two Union Territories—Jammu & Kashmir (with a legislative assembly) and Ladakh (without a legislative assembly).
Key Points:
- The Jammu and Kashmir Legislative Assembly was not involved because it was dissolved at the time.
- The Indian government used the powers of the Governor under President’s Rule to give the necessary concurrence in place of the assembly.
- The central government and Parliament played the primary roles in the process.
Controversy:
- The process has been controversial because critics argue that using the Governor’s consent in place of the state’s elected assembly violated the spirit of Article 370, which was meant to ensure the autonomy of Jammu and Kashmir.
- Supporters argue that the move was within the framework of the Indian Constitution and necessary for the integration of Jammu and Kashmir with the rest of India, citing national security and development reasons.
In summary, the abrogation of Article 370 was done without the involvement of the Jammu and Kashmir Legislative Assembly due to its dissolution and instead relied on the Governor’s concurrence under President’s Rule.
