The government of India issued a Presidential order in the Gazette of India, which has effectively abolished the Article 370 and Article 35A of the Constitution of India which had given special status to the state Jammu and Kashmir. The order reads that it has been issued by exercising the powers conferred by clause 1 of Article 370, with the concurrence of Government of Jammu and Kashmir.
Now, many people are asking, what is the meaning of this concurrence of J&K government, when there is no government in the state at present, as the state is under the Presidents rule. The answer to this lies in two documents, Article 370 itself, and the Constitution of Jammu and Kashmir.
Section b(ii) of Article 370 contains this explanation: For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March 1948. At that time the Maharaja was the government of the state, who acted on the advice of the council of ministers.
This provision was amended by a presidential order in 1952, which had said that Government of the State means the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State. During that time, the governor and the chief minister of Jammu and Kashmir was known as Sadar-i-Riyasat and Prime Minister. Hence, this means that the Government of the State meant the Governor, known as Sadar-i-Riyasat. This was changed in 1965, via another Presidential order, which had said that reference of Sadar-i-Riyasat will mean reference of the governor. And it also specified that Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers.
Therefore, Article 370 and the subsequent amendments mean that the term Government of Jammu and Kashmir refers to the Governor of the state acting on behalf of the council of ministers.
This means, the president has issued the order, replacing the 1954 order, in concurrence of the governor, who represents the government of the state.
Now, the Article 370 also says that the governor acts on the advice of the council of ministers, but as there is no government in the state at present, can the governor act without the advice of state government?
The answer to this lies in the Jammu and Kashmir Constitution. It may be noted that the president’s rule in the state is imposed as per provisions of the Constitution of Jammu and Kashmir, not Constitution of India. Article 92(1)(a) of the state’s constitution says that in case the government of the state can’t be carried on, the governor will “assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by anybody or authority in the State”.
In the case of Mohd. Maqbool Damnoo vs State of Jammu And Kashmir, the Supreme Court of India had deliberated on the meaning of Government of Jammu and Kashmir. Going by all the provisions of Constitution, the apex court had come to the conclusion that “it is quite clear that the Governor is competent to give the concurrence stipulated in article 370 and perform other functions laid down by the Jammu and Kashmir Constitution. The court had clarified that the Governor is the successor of Sadar-i-Riyasat, and retained all the powers of the Sadar-i-Riyasat, even if the mode of appointment was changed from election to appointment by the president. Therefore, if the current order of the president is challenged in the Supreme Court, the court will most probably uphold it.
So, in summary, the Government of Jammu and Kashmir refers to the Governor of the state, and as there is no state government at present, the Governor assumes the role of the state government in advising the governor.
