Can Article 370 be challenged in court? Ex-solicitor general Harish Salve explains

Section 144 has been imposed in Kashmir  |  Photo Credit: PTI

New Delhi: The government has withdrawn the special status of Jammu and Kashmir via a Presidential notification. Section 144 has been imposed in the Valley and questions are being raised on the legal aspects regarding the abrogation of Article 370. In an interview with ET Now, former solicitor general Harish Salve explained the legalities associated with Article 370. 

Can Article 370 be removed by President?

"Article 370 was brought in at a time when the Constitution was not fully implemented in Kashmir. Based on the Instrument of Accession, certain powers were given to Kashmir. But there was power reserved to apply the Constitution over a period of time by Presidential orders to Kashmir. As the heading to the Section says, it was a temporary provision. That's how they started the process of applying the process of the Constitution. 

In 1954, the fundamental rights and various other provisions of the Constitution were extended to Kashmir. When these were extended to Kashmir, as an exception was made by inserting Article 35A. Now, this was not a constitutional amendment. The extension of fundamental rights was with the exception of Article 35A. This was also challenged in the Supreme Court. The Supreme Court upheld it, but the Supreme Court said that it was a political decision, so they realised that it was not free from its criticism."

Article 370: Could people be taken into confidence?

"Monday's Presidential order which introduced the fundamental rights with if and buts were taken away and a Presidential order was made which says that the whole of the Indian Constitution applies to Jammu and Kashmir. It's a moment wherein we are saying that the whole of Jammu and Kashmir has now been integrated into India because the whole of the Indian Constitution applies in Jammu and Kashmir.

The argument that people should have been taken into confidence — I think we are fooling ourselves — because positions are so hard on this that nobody would have been willing to see any other point of view... So I don't think this was a matter up for discussion between anybody. The government decided to do it. They have gone and done it."

Can Article 370 be challenged in court?

"They will clearly have a locus standi to challenge what the government has done. Whether the challenge will be successful, whether the challenge will be meritorious that's quite another matter. Any public-minded person who feels strongly that this is unconstitutional for any reason has the locus to challenge and most certainly, the leaders of the political parties in Jammu and Kashmir have the locus standi to challenge it. And that is the way to resolve these controversies. If they feel strongly that this is a constitutional aberration, I hope instead of taking to streets, they take to Supreme Court and come and challenge it and have the matter resolved.

Amendment of the basic structure was a limitation on the power to amend the constitution. There has been no amendment to the constitution. So I don't know where this basic structure is coming up. Secondly, Article 370 is a temporary provision as it characterises itself. So if Article 370 was to be deleted, Parliament, frankly, would be taking away the power to introduce the Constitution in J&K, I don't know why Parliament would delete 370. The government has used the power of 370 to introduce the whole Constitution instead of bits and pieces."