NEW DELHI: The Modi government on Monday passed a resolution seeking to undo Article 370 with simple majority, even as it was widely believed that the article could be "scrapped" only by a Constitution amendment bill needing a two-thirds majority. It did so by using a provision in Article 370 itself even as it fully anticipates that the Presidential notification will be challenged in Supreme Court.

Article 370(3) of the Constitution says, "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... Provided that the recommendation of the Constituent Assembly of the state referred to in clause (2) shall be necessary before the President issues such a notification."

While the provision does not allow repeal of Article 370 without concurrence of the Constituent Assembly of J&K, a government source pointed out that the said assembly was disbanded way back in 1956 and most of its members are presumably dead. Also, before dissolution, the Constituent Assembly neither recommended abolishing Article 370 nor did it advocate for the article to be permanent.

This point is likely to be part of a legal challenge that home minister Amit Shah himself anticipated in his speech in Rajya Sabha on Monday. The "sweeping nature" of the Presidential Order and the reorganisation of J&K into two UTs is bound to be challenged on grounds of alleged constitutional impropriety.

Officials said that under Article 370, as many as 45 Presidential Orders were used so far to extend components of India's Constitution into J&K. Almost all Union list subjects are applicable, as are most Concurrent List ones, a handful of Schedules and Articles 260 and 395. "Article 370, via orders, has been modified so many times, it can be expelled from the Constitution without taking 'concurrence' of the now-defunct Constituent Assembly," explained the functionary.

In fact, when Congress leader P Chidambaram objected to Article 370 being repealed without a constitutional amendment, Shah emphasised that the issue had been examined and that a simple majority was all that was required.

Interestingly, with Article 370 being made a dead letter, Article 35A, which owed its existence to the former, will automatically cease to exist. In any case, 35A was itself promulgated by an executive order in 1954 and merely needed another executive order, to be approved by the Union cabinet since J&K is currently under President's rule, to go.

The justification for the other bill to bifurcate the state of J&K into two Union Territories -- UT of J&K having a legislative assembly and UT of Ladakh without one -- can be found in the statement of objects and reasons. It stated that Ladakh is large and sparsely populated with a very difficult terrain, and referred to the long-pending demand of people of Ladakh to grant it UT status to "enable them to realise their aspirations."

The statement further stated that with the prevailing internal security situation, "fuelled by cross border terrorism in the existing state of Jammu & Kashmir," a separate UT of J&K was being created with a legislature. Shah, responding to concerns regarding reorganisation of J&K raised by MPs including Ghulam Nabi Azad and Chidambaram of the Congress and TMC's Derek O'Brien, assured the Rajya Sabha that J&K status as UT would not be permanent and full statehood shall be restored as and when the situation there becomes "normal".



In Video: Rajya Sabha passes J&K Reorganisation Bill