Article 370 Scrapped? Not Really, Explains Harish Salve

The government applied the provisions of the Constitution in its totality and used Articles 2 and 3 to reorganise Jammu and Kashmir, former Solicitor General and Constitutional expert Harish Salve told NDTV on Monday. Calling it a "major surgery" he also clarified the idea that Article 370 was scrapped was a misunderstanding.

The Section 3 of Article 370 -- which grants special status to Jammu and Kashmir -- empowers the President to declare the special status inoperative anytime.

"Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify," the Section 3 states.

Using this provision, the government on Monday got an order signed by President Ram Nath Kovind that came into force "at once".

Mr Salve said the Presidential order appears to be complete, subject to ratification by parliament.

"That's why I think it is a statutory resolution (a resolution that is binding on the government). 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," he added.

Besides ending the special status of Jammu and Kashmir, the government plans to split the state into two Union Territories - Ladakh, which will not have an assembly and Jammu and Kashmir, which will have one, but with hugely curtailed powers. The bill to bring this was passed by the Rajya Sabha on Monday and will be presented in the Lok Sabha today.

The reorganisation, Mr Salve said, will have to be done in two stages.

With the state assembly being dissolved, its powers have been passed to parliament, which, acting as the state assembly, will have to approve the bifurcation of the state. "Then parliament, acting as parliament, will consider, debate and decide on the reorganisation," Mr Salve explained.

Ultimately, he indicated, the matter will come to the Supreme Court, "whether it should or should not".

Jammu and Kashmir's former Chief Minister Omar Abdullah, who is currently under house arrest, has already indicated that his party might challenge the government's move in court.

In a statement this morning after Amit Shah's announcement in parliament, Mr Abdullah said: "The scrapping of Articles 370 and 35A raise fundamental questions on the State's accession because that was done on the very terms enunciated in these Articles. The decisions are unilateral, illegal and unconstitutional and will be challenged as such by the National Conference. A long and tough battle lies ahead".