The Ruler of Jammu & Kashmira, Maharaja Hari Singh, signed an Instrument of Accession, which was accepted by the Governor General on 27the Oct. 1947. Under this instrument only three subjects i.e. external affairs, defense & communications, were surrendered by the state to the dominion of India. Thus the state of Jammu & Kashmir has a much greater measure of autonomy and power than enjoyed by the other states.
Under the said article the powers of Parliament to make laws for the state of J & K are limited to:
1. By consultation with the state Govt. -- those matters in the Union List and Concurrent List, which correspond to the subjects specified in the Instrument of Accession.
2. By concurrence with the state Govt. -- such other matters in the Union List & Concurrent List, which the President may by order, specify.
In a way, Art. 370 empowers the President to define the constitutional relationship of the state of J & K in terms of the provisions of the Indian Constitution, subject to the stipulation that he can do so with reference to the matters in the Instrument of Accession in consultation with, and with reference to other matters with the concurrence of, the sate Govt. (M.P. Jain – Constitutional Law)
Thus Art. 370 is a special provision for amending the Constitution in its application to the state of J & K. It is not affected by Art. 368 i.e. amendment of the constitution. Art. 370(3) empowers the President to issue a public notification saying that the said article 370 shall cease to be operative upon the recommendation of the Constituent Assembly of the state.
The Constituent Assembly of the state does not exist anymore. Therefore the questions remain:
1. Whether the President can issue a public notification under Art. 370(3) to cease the operation of Art. 370 without any kind of recommendation by the State Govt. of J & K?
2. Whether the 'recommendation' of the State Govt. of J & K as ‘successor in power’ to the Constituent Assembly (if such constitutional interpretation is plausible) would be required before the President issues such public notification?
3. Considering that the Constituent Assembly is no longer in existence does Art. 370(3) still remains operative?
In this regard the view of the learned author Shri M.P. Jain is as below:
Since the Constituent Assembly of the said state exists no more, Art. 370(3) is no longer operative. The only way to modify or repeal this article 370 is by way of amendment to the constitution under Art. 368.
However a question again arises whether such an amendment without the 'concurrence' of the state legislature possible? Mr. M. P. Jain answers this by saying that, by virtue of the Constitution (Application to J & K) order 1950, any amendment to the Constitution does not apply to the State unless it is extended there to by a Presidential Order under Art. 370(1) which again involves ‘concurrence of’ the State Govt.
Therefore:
1. A unilateral notification by the President declaring that Art. 370 shall cease to operate is not possible now.
2. Amendment or Repeal of Art. 370 under the amending powers of the constitution of India, Art. 368 without the concurrence of the State Govt. of J & K is not possible.
