Cutting the Gordian knot of J&K: The legal conundrum that is Article 370

By Anmol Rathore*
Article 370 has been the Gordian knot when it comes to the politico-legal history of the State of Jammu and Kashmir (J&K), and the recent Constitution Order (CO) 272, if anything, has further entangled this knot. CO 272, by abrogating in effect Article 370, has in fact stirred a storm that doesn’t seem to abate anytime soon, at least not unless the SC decides on it.
Several petitions have been filed before the honourable Supreme Court (SC) challenging the CO 272 and the SC has referred the matter to a constitution bench. In the meanwhile, the order continues to be a burning issue, having the legal fraternity divided, with many going so far as to challenging the validity of the very accession of the state of J&K to India. While the quibble over the constitutionality of CO 272 continues, here is an attempt to analyse the different grounds for challenge to the order.
However, before proceeding with the analysis of the CO 272, it becomes quite pertinent to clarify that Article 370 does not have any bearing on the accession of J&K to India, which was completed before the Article 370 was incorporated into the constitution.
To understand the consequences of the CO 272 and to better appreciate the legal arguments both challenging and supporting the abrogation of Article 370, would be impossible without delving into the circumstances which warranted the addition of Article 370 into the Constitution. An in-depth insight of the prevailing circumstances at the time when Article 370 was added into the Constitution is provided by the Constitutional Assembly (CA) debates.
The State of J&K acceded to the Dominion of India through an unconditional and absolute Instrument of Accession (IoA) on 26 October 1947, the terms and conditions of which were similar to the IoAs executed by other princely states. The IoA granted legislative power to the Dominion of India over three subjects of defence, foreign affairs and communications, their content being as defined in List I of Schedule VII of the then Government of India Act, 1935.
The next step in the process of integration included merger of these princely states and their democratisation. While some of the princely states eventually signed an Instrument of Merger to form larger administrative units, the same was not done by J&K and this has, time and again raised certain doubts over whether the merger of J&K with India was complete or not.
In this regard, it is submitted that the Instrument of merger was but a means for two-fold integration of the then princely states (which covered huge swathes of territory and were still under the rule of a Maharaja) into the Union of India, i.e., the consolidation of States into sizeable administrative units and their democratization. The requirement was fulfilled in the case of J&K when the maharaja’s rule was replaced by an elected government.
To make the states integral units of the Republic of India, the names of the States were included in Schedule I of the Constitution of India and their respective constitutions were embodied into it. However, while the Constituent assembly was drafting the Constitution of India, unusual and abnormal circumstances prevailed in the State of J&K which delayed this type of integration for J&K.
The CA, therefore, agreed that to ascertain the will of the people of J&K, a CA would come into existence which would draft a constitution for the State of J&K and determine the sphere of Union jurisdiction over the state. Once the constituent assembly came into existence, an arrangement was sought to be created which would be in line with the arrangement that existed in case of other States of the Union.
Therefore, it can be reasonably ascertained that it was the intention of the CA that the extent of Union jurisdiction over J&K would be determined by the Constitution of J&K. However, the CA which was to draft the Constitution did not come into existence till 1951 and therefore to fill the void for those 2 years, and to provide for a constitutional framework for the state in the interregnum, an interim measure was required, a way to apply the provisions of the Constitution of India to J&K till the Constitution of J&K settled the matter for once and all. Article 370 was to be this provision.
In 1956, the Constitution of J&K came into being and thus was fulfilled the purpose for the very existence of the CA of J&K. Having fulfilled its purpose and having embodied its intentions in the Constitution, the CA dissolved in 1957, albeit without recommending anything with respect to the Article 370.
A combined reading of Articles 3 and 5 of the Constitution of J&K, which was enacted to further define the existing relationship of the State with the Union of India as an integral part thereof, however, leads one to conclude that the jurisdiction of the Parliament would extend to all the matters which are provided for under the Constitution of India.

Having discussed the circumstances of inclusion of Article 370 into the constitution, we have the context required to understand the CO 272 and analyse it.
The CO 272, was introduced in the exercise of the power of the President under Article 370(1) which allows the President to apply certain provisions of the Constitution to the State upon the concurrence of the State government. The CO amends Article 367 by adding to it an additional clause, sub-clause (4) of which substitutes “Legislative Assembly of the State” for the Constituent Assembly in proviso to Article 370(3).
The Presidential Order (PO) for certain reasons which have been discussed below, is not immune to challenges. While the final call will be taken by the Supreme Court, it would be quite interesting to discuss the arguments from both the camps.
The foremost challenge to the CO strikes at the very root by questioning the power of the President under Article 370(3) to abrogate the article. The proviso to Article 370(3) mandates the recommendation of the constituent assembly of J&K before the President abrogates Article 370 itself. The CA of J&K ceased to exist in 1957, without recommending anything with respect to Article 370.
Does that mean that Article 370 has become a permanent feature of the Constitution and therefore cannot be abrogated? A literal interpretation of Article 370 would lead to this conclusion. However, the purposive interpretation might lead us to conclude otherwise. The object of enacting Article 370, which was to govern the constitutional relationship between the UOI and the State of Jammu and Kashmir till the enactment of a Constitution for the State, was fulfilled on the day the Constitution of J&K was enacted. Therefore, to contend that Article 370 has become a permanent feature of the Constitution which cannot be abrogated by any means would be fallacious, in my opinion.
The provisions of the constitution should be given a liberal and purposive interpretation to prevent their fossilization and to give meaning to them so that they can meet the ever-evolving needs and challenges. One cannot assume that Article 370(3) cannot be given effect to merely because the CA of J&K cannot be revived. That’d make a part of the constitution immune to amendment which in my opinion would be erroneous.
Another significant challenge to the PO 272 is with respect to the interpretation of the term “government of the state.” The State of J&K has been under Presidential rule for the past sometime and therefore, the concurrence of the state government in the present case refers to the concurrence of the Governor of the State, who is in effect a Presidential representative himself. This, it can be argued, raises serious questions since it is in violation of the doctrine of separation of powers, the concurrence of the governor cannot be equated to the concurrence of the elected government of the State.
To better appreciate this argument, one would require to interpret the term “State government.” Explanation added to Article 370 via C.O. 44 provides that for the purpose of Article 370, State government shall mean the “governor” and therefore, it can be argued that the concurrence of governor doesn’t violate any constitutional mandate.
This is just the tip of the iceberg, and thus it will be interesting to note what turn the arguments take when the SC takes up the matter for hearing in October, 2019. However, one can be assured that the ruling of the SC in this matter will go down in the annals of the constitutional history of India as one of the greatest turning point for finally cutting this Gordian knot that is Article 370.
—
*IVth year, BA LL B (hons), Gujarat National Law University

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