In a historic move yesterday, using the authority under Article 370 of the constitution, President Ram Nath Kovind signed an order, titled, “The Constitution (Application to Jammu and Kashmir) order, 2019” which successfully superseded the prior Presidential order of 1954. This is essentially in furtherance to a proposal aimed at removing article 370 of the constitution, the bone of contention with regard to status of Jammu & Kashmir since the time of adoption of the constitution.
With this order, article 35A has been successfully removed and all the provisions of the constitution have been applied to the state of J&K, superseding the need to go about the “special procedure” given in Article 370.
However, there are some lawyers, who for the sake of arguing have decided to quash the move of the centre. These, with personal political affiliations seem unable to see the widely appreciated move.
Topping the list is advocate AG Noorani, who had defended NC founder and brain behind article 370, Sheikh Abdullah of Kashmir during his long period of detention. Thus, his point of view is anything but unbiased. He stated that this decision of the centre is “utterly and palpably unconstitutional. An unconstitutional deed has been accomplished by deceitful means. For a fortnight, the Governor and other people told a whole load of lies.”
Further referring to the article is question, which was intended to be a “temporary provision” by the drafting committee, he stated, “After the dissolution of the Constituent Assembly in 1956, the power of abrogation of Article 370 vanished.”
Advocate Abhishek Manu Singhvi, who was representing Rahul Gandhi in his Rafale contempt of court proceedings, went no holds barred with his allegations. Speaking on the bifurcation of the state he said, “This is bizarre. It is a complete and utter misuse of article 356.” Then speaking on article 370, he cited the 3rd clause in the article which states that the concurrence of constituent assembly is needed to dissolve the article. Expressing his dissatisfaction he stated that while the president is ruling the state, there is no legislative assembly so without the assembly, how can article 370 be removed. He further said that “there are valid strong legal grounds to challenge, which has a good chance to success.”
Following their suit, representative of the Sunni Waqf board in the Ayodhya dispute, lawyer Kapil Sibal came forward with his own set of theories. Criticizing the centre for the move, he said, “We want Kashmir but today we have lost it.” He further continued, “Today is not a day to go back into history or talk about law, today we should be thinking about why we are here, why we are a democratic nation, these are the questions we need to ask. Bill will be passed because you have manufactured the majority. You call it historic but only history will tell if this is historic.”
Slamming these lawyers for their biased point of views, expert opinion was sought from the legal experts.
In this, former Attorney general, Mukul Rohtagi said that “article 370 is a temporary provision.” Due to the existence of the article, he said that the state decided permanent residents in J&K, and this had led to discrimination against others who weren’t given an equal status in the state. He further continued, “because of this article, the state has suffered and couldn’t be integrated”. Speaking on the power of the president to issue an order, he said, “Just as a notification can be issued, it can be withdrawn.”
In the end he said, “The restrictions have lifted. It can’t become worst; it will be become better at the ground level. The state will be integrated. At least allow it to work. The ink has not dried and people have started saying doomsday is here.”
Former Solicitor General Harish Salve said that through the presidential order, the government has applied the provisions of the Constitution in its totality and used Articles 2 and 3 to reorganize Jammu and Kashmir. He stated, “I think it is a statutory resolution. So unless parliament asks the President to cancel it, that order will prevail. So the constitution, as we speak, applies. The Article 35A, which was part of the presidential order of 1954, goes away.”
Soli Sorabjee, the former attorney general did not question the legality of the action. He stated, “I don’t think there is anything revolutionary here.”
Hence, as is clear, the learned advocates, whose reputation precedes them haven’t expressed any qualms towards the legality of the abrogation. Others, whose statements only portray their political affiliations have done nothing but criticize the action of the government.
