The Supreme Court has many times upheld the validity of Article 370 and Article 35A. The actions by Prime Minister Narendra Modi's government on Monday are unconstitutional as the power of the Parliament to amend the Constitution should be used wisely.
Article 370 is part of the Constitution of India since January 26, 1950. Article 35A was added to the constitution, through an ordinance in 1954. The power to add article 35A through an ordinance was given by Article 370.
It has been mentioned, this power can be used only with the recommendation of the Constituent Assembly of Jammu and Kashmir.
Since there is no existence of the Jammu and Kashmir Constituent Assembly, the promulgation of an ordinance regarding Article 370 is absolutely unconstitutional.
We should not forget that the same Article 35A added Jammu and Kashmir to India’s judiciary, directly under the Supreme Court.
The constitutional bench in two matters 'Puranlal Lakhanpal Vs. President of India' and 'Sampat Prakash Vs. Jammu and Kashmir state', upheld the constitutional validity of Article 370.
The addition of Article 35A in the Constitution through an ordinance was challenged in the Puranlal Lakhanpal Vs. President of India case. But the Supreme Court rejected this argument and made it clear that Article 370 itself has a provision which enables the government to issue an ordinance.
In Sampat Prakash Vs. Jammu and Kashmir case, it was argued by the petitioner, the Article 370 was a temporary arrangement and requested its scrapping.
But the Constitutional bench rejected this request and ruled that Article 370 can be amended or scrapped only after a recommendation by the Constituent Assembly of Jammu and Kashmir.
Even in Mohammad Maqbool Damnoo petition, the constitutional bench clarified the assent of Jammu Kashmir state is a must for any changes in Article 370.
In Santosh Gupta Vs. the State Bank of India case under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act (also known as the SARFAESI Act), SC had made it clear again that Article 370 is not temporary.
Few of the North-eastern states like Nagaland, Manipur and Sikkim also have a special provision like Article 370. Without the consent of the concerned state, the central government cannot withdraw the special laws or special status of these states.
Though the government does not have the power to amend the basic structure of the Constitution.
In the two cases of Keshavanand Bharti Vs. State of Kerala and Wamanrao Vs. Union of India, the judges held the Parliament has a right to make amendments in the Constitution.
But this amendment cannot be made against the basic structure of the Constitution. The Article 370 and the addition of Article 35A was made much before 1973, that is prior to these judgements.
— Harshavardhan Datar is a chartered accountant