The BJP must remember that Article 370 cannot be abrogated or amended by recourse to the amending provisions of the Constitution, which apply to the other States. Article 368 has a proviso that says that no constitutional amendment “shall have effect in relation to the State of Jammu and Kashmir” unless applied by order of the President under Article 370. That requires the concurrence of the State’s government and ratification by its Constituent Assembly.
Jammu and Kashmir is mentioned among the States of the Union in the First Schedule as Article 1 (2) requires. But Article 370 (1) (c) says, “The provision of Article 1 and of this Article shall apply in relation to that State.” Article 1 is thus applied to the State through Article 370. What would be the effect of its abrogation, as the BJP demands?
When Kashmir’s Constituent Assembly was “convened” on November 5, 1951, the State government lost forever its “interim” power to accord its concurrence. When it dispersed on November 17, 1956, after adopting the State’s Constitution, there vanished the only authority that could cede more powers to the Centre or extend any Central institutions to the State.
I cannot make much sense of this reasoning. Art.368 grants parliament the power to amend any provision of the constitution of India including art.370 (This remains generally true barring some unclear limitations imposed by the Supreme Court in case of provisions that violate an undefined 'basic structure' but that is a separate discussion for another day). The provisions of the Constitution of India have been extended with some modifications to Jammu and Kashmir under art.370(1)(d). The Constitution Order, 1954 issued by the President in exercise of this power has a proviso to art.368 which prevents constitutional amendments from taking effect 'in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of article 370'. If art.370 is abrogated, this constitution order itself including this proviso as well as the President's need for concurrence of the State government will cease to be operative. Only the general provisions of Art.368 will apply to J&K as they do to the rest of the country. Of course, in the hypothetical instance that any Central government does this, it would surely design such an amendment Act to ensure that the legal transition from a distinct constitutional system to assimilation with the rest of India is smooth.
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