Thread by @DebayanDictum

A important thread on the analysis of today's J&K Presidential Order by @jsaideepak ..... "People can have grievances, but they are emotional grievances, this order is perfectly sound in law.." 1/n

@jsaideepak There is an impression that Article 370 has been repealed altogether. A careful reading of the order would help here. The order of the President invokes Article 370 (1) of the Constitution of India. It has invoked because it want to supersede and replace the previous..2/n

@jsaideepak ...constitutional order of the President of 1954. There were two important constitutional orders that came into being post 1951 nand 1950 which was replaced by the order of 1954. The 1954 order is important because among other things it carried on two important amendments...3/n

@jsaideepak to the Constitution. (1) Theorder introduced Aticle 35A for the very first time . Article 35A was not introduced by a constitutional amendment but through a presidential order. (2) The power of amendment under Article 368 which is available with respect to he constitution 4/n

@jsaideepak here there was an extra proviso added for the state of J&K, which said that insofar as State of J&K are concerned, whenever the constitution is amended through Article 368, it shall be done so in accordance with Article 370 so that Article 368 is not used to..5/n

@jsaideepak circumvent Article 370. In 1954, the erstwhile Maharaja of the princely state of J&K was given the status of Sadr-i-Riyasat and thereafter his son was appointed to the particular position. This position was changed to Governor of J&K in 1954 pursuant ...6/n

@jsaideepak to 1952 Delhi Agreement between Sheikh Abdullah and Pandit Jawaharlal Nehru. Now, (1) the government has formalised that particular definition of the conversion from Sadr-i-Riyasat to the Governor under Article 367...7/n

@jsaideepak What was previously in the explanation to Article 370 has now bee brought to Article 367 which is a clause with reference to interpretations. (2) Once you replace the 1954 constituional order entirely with the 2019 order...8/n

@jsaideepak it has replaced Article 35a and as a collateral damage and no more exists. (3) The entire sum and substance of this Constitutional order is to be found in para 2 of presidential order. Previously Kashmir has seen piecemeal application of Indian Constitution by Presidential..9/n

@jsaideepak orders, but now the President himself has ordered that the entire Constitution of India will apply to J&K. This means that the special relationship enjoyed by Jammu and Kashmir with India has now been brought at par with the relationship it shares with other states of India.10/n

@jsaideepak Now there is only one exception to this which is a refrence to Article 367. Other than that its the case where Article 370 has been used to render Article 370 redundant. Most importantly, 11/n

@jsaideepak the discussion around Article 370 in the recent days is primarily limited to Article 370 (3) of the Constitution. But the clause 3 could not be used as there was a proviso in that which said that the president can issue an order to render the article inoperative provided 12/n

@jsaideepak he recieves a recommendation for the same from the Constitutent assembly from the state. Now after 1956 there is no constituent assembly. After 1956, proviso to clause 3 became inoperable. So now constituent assembly has been substiuted by the legislative assembly of the UT. 13/n

@jsaideepak Now the President can resort to the clause 3 of Article 370 upon recommendation from legislative assembly of the state to render it inoperative. However you make it inoperative or not makes no difference when the entire consitution of India as is where is applies to J&K. 14/n

@jsaideepak Article 370 remains in the books but the special status that was enjoyed till now has now been brought at par with other states. Impression in peoples mind is that Article 370 is the very basis of the marriage between Indian and J&K but it is not. 15/n

@jsaideepak The Instrument of Accession signed in November 26,1947 between Maharaja Hari Singh and the then governor general of India, Lord Mountbatten, that document is the basis of the relationship between India and J&K. 16/n

@jsaideepak According to that IOA, India has exclusive control over Defence, Foreign Affairs and Communications in J&K. Outside of that the question of autonomy was the subject matter of Articel 370. Article 370 was introduced because pending a constitution of J&K, there needed to be 17/n

@jsaideepak working relationship with India and hence the tempoary provision like Article 370 was introduced. The entire objective of granting autonomy to the state has now been rendered useless. The Constitution of J&K has now been rendered useless as now Constitution of India will be 18/n

@jsaideepak applicable to J&K. What has been done now is completely defendable in the court of law. Abrogation of Article 370 cannot be the basis of seccession of J&K, , as this was not the link between India and J&K, but that link was the 1947's Instrument of Accession. 19/n

@jsaideepak Two other provisions of the Constitution is important. Firstly, Article 1 of the Constitution of India is applicable to J&K, which means its a territory of Bharat. Secondly, the first schedule of the constitution which contains list of states also has J&K. So there is 20/n

@jsaideepak no question of seccession at all. Thirdly, when J&K is mentioned in the Constitution of India, it is not the J&K as it exists under the Indian control, but it is the whole of J&K including that of PoK and the portions which were lost to China in 1963. Thus J&K remains with 21/n

@jsaideepak India and Article 370 has no bearing on it. The only primary grievance could be with Article 35A as political leaders in the recent past were concerned about defining who shall be the permanent resident or citizen of J&K. That particular provision was shielded in 1954 22/n

@jsaideepak by saying that any law that was passed under Article 35A with respect to permanent citizenship or residentship of Kashmir cannot be challenged on the basis of violation of Part III of the Constitution of India. However, it is immune from only the above and not 23/n

@jsaideepak from challenge under Part II. . This part of the constitution deals with Citizenship. Therefore , Article 35A was always open to challenge on the basis of the point that it violates constitution on the basis of restrictions on citizenship. 24/n

@jsaideepak People can have grievances, but they are emotional grievances, this order is perfectly sound in law. 25/n END