The virtual emasculation of article 370 has stirred up a constitutional storm. For seventy years, the issue has been trivialized as little more than a matter of insurmountable technicality - the Constituent Assembly of Jammu and Kashmir was long dissolved. The Presidential Order C.O.272, 2019 has now allowed us to construe the 'concurrence of the state government', necessary to invoke the presidential powers in clause 1(d) of article 370, as 'the concurrence of the Governor'. The constitutionality of this change is not clear in a literal sense. To make matters worse, our history is replete with pervasive misuse of the Governor’s powers under article 356. In any other state under the President's rule and a dissolved Legislative Assembly, a far-reaching reform made in consultation with the governor could have left a lingering sense of unease in the collective consciousness. But Kashmir was NOT any other state and the concept of ‘constitutionality’ has shown admirable resilience and exemplary situational awareness in the Indian context.
Article 370 has begotten grave problems. Political expediency has thwarted delimitation leading to the neglect of the political aspirations of the people of Jammu and Ladakh. The inequity perpetuated by article 35A is only compounded by the absence of reciprocity. Both articles have fostered an atmosphere conducive to insurgency and cross-border terrorism with serious repercussions for national security and foreign relations. In the international arena, a sense of ambiguity prevails over the status of Jammu and Kashmir. The repeated offers of and requests for mediation (the most recent one from President Trump) on Kashmir originate in articles 370 and 35A, which have prevented true integration with India. Not to mention, the looming specter of the American withdrawal or drawdown from Afghanistan does not bode well for Kashmir. With this background, the overwhelming public response, as well as the support garnered by the government, in the parliament across party lines, is a stark indication that the writing has been on the wall for quite some time. A complete and meaningful integration of Jammu and Kashmir into India was a desire deeply felt by Indians.
Would it have looked better to do the changes through article 368? The point is moot, because the proposal was passed with a 2/3rd majority in Rajyasabha, yesterday. The apparent bypassing of the Legislative Assembly is now accepted as a political fait accompli by an overwhelming majority of Indians and their representatives. If bypassing the Legislative Assembly through gubernatorial assent is a fraud on the Constitution as per DC Wadhwa judgement, then the vested interests, domestic and international, holding the entire country hostage to an anachronistic provision was an even bigger fraud on it. ARTICLE 370 IS NOT AMENABLE TO AN ELEGANT SOLUTION TODAY, BECAUSE IT WAS NOT MEANT TO LAST 70 YEARS! And the people of this country don't need a constitutional expert to tell them that. The circumstances that led to its inclusion have undergone material and irreversible changes. The Constituent Assembly stands dissolved. A large chunk of the state is now under illegal occupation by Pakistan and China. The present cannot be held hostage to the past that could not have foreseen the appalling fallout of article 370 and its misuse. The ‘living tree doctrine’ of constitutional interpretation, which says that a constitution is organic and must be read in a broad and progressive manner so as to adapt to the changing times, is crucial in this respect. The Law must change with contemporary understanding of what constitutes morality, welfare and the legal duty of justice, equity and good conscience. When the Presidential Order C.O.272 of 2019 comes under judicial review, the Supreme Court will find it difficult to ignore the writing on the wall, as it were.
