Article 370(3) proviso states that Article 370 itself is to be amended by the concurrence of the Constituent Assembly. C.O. 272, therefore, uses the power under 370(1) to amend a provision of the Constitution (Article 367) which, in turn, amends Article 370(3), and takes out the Constituent Assembly’s concurrence for any further amendments to Article 370. And this, in turn, becomes the trigger for the statutory resolution, that recommends to the President the removal of (most of) Article 370 (as the Constituent Assembly’s concurrence is no longer required).

This is very clever. Is it legal? One serious objection is Article 370(1)(c). Article 370(1)(c) (unamended) stated that “notwithstanding anything contained in this Constitution, the provisions of Article 1 and this Article shall apply in relation to that State.” This is absolutely crucial, because it makes clear that the power of the President to amend provisions of the Constitution in relation to J&K does not extend to Article 1 and “this Article”, i.e., Article 370 itself. 370(1)(d) makes it even clearer where it refers to the “other provisions” of the Constitution that may be altered by Presidential Order (and this is how the present Presidential Order is different from previous ones, such as those that introduced Article 35A). Article 370 itself, therefore, cannot be amended by a Presidential Order such as C.O. 272 (the one exception was a clarificatory amendment, which is not analogous to this one).

Now, it may be immediately objected that C.O. 272 does not amend Article 370: it amends Article 367.