Lately, there has been a lot of hullabaloo in global news fraternity with regards to the dilution of article 370. However, majority of these news reports have been labeling the move as abrogation of article 370. Upon reconciling them with the Constitution (Application to Jammu and Kashmir) Order, 2019, namely the C.O.272 and C.O.273, such reports can only be regarded as an empty rhetoric. To be more specific, it is the ‘special status’ of J&K that has been abrogated. Thus, it would be more appropriate to label the entire process as dilution of article 370 or abrogation of special status of J&K.
Under the C.O.272, the Presidential power, mentioned in article 370(1)(d), has been invoked with the concurrence of the Government of J&K, Governor of J&K in actuality, serving three basic purposes:
For– Replacing and Superseding the Constitution (Application to Jammu and Kashmir) Order, 1954, with C.O.272.
For– Application of the Constitution of India, as amended from time to time, in its entirety to J&K.
For– Alteration of article 367 of the Constitution of India by addition of clause (4), to- firstly, substitute the expression ‘Constituent Assembly of the State’ with ‘Legislative Assembly of the State’ in reference to proviso of article 370(3), secondly, construe ‘Sadar-i-Riyasat of J&K’ as ‘Governor of J&K’ and thirdly, construe ‘Government of J&K’ as ‘Governor of J&K’ acting on advice of his Council of Ministers.
To sum up the consequence of entire C.O.272 document succinctly, with application of the Constitution of India in its entirety to J&K, the Constitution of J&K, framed by the erstwhile Constituent Assembly of J&K, has become redundant. Further, under the C.O.273, the Presidential power mentioned in article 370(3), read with article 367(4)(d), was invoked on the recommendation of Parliament– by virtue of article 356(1)(b) as Legislative Assembly of J&K stood dissolved due to Presidential rule— for the dilution of article 370, which now runs as follows:
All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.
These Orders were used as a precursor to the J&K Reorganization Act, 2019, which bifurcated J&K into: Union Territory of J&K, with legislature, and Union Territory of Ladakh, without legislature. Hence, it remains noteworthy that Dilution of article 370 was conducted at two stages, by two Constitution Orders- C.O.272 and C.O.273, which, though separate, remain directly allied acts altogether. Something that has not been clarified by the hasty and sycophantic popular-media.
References: Constitution Orders (Application to Jammu & Kashmir), 2019 – C.O.272 and C.O.273.