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The ‘Heart Of The Matter’ Surrounding Article 370

During the formulation of India's Constitution, Article 370 was incorporated to honour the commitment made to Jammu and Kashmir during the Instrument of Accession. This article bestowed special status upon J&K, allowing the state to create its own Constitution.

Activists of National Conference protest against the delimitation commission in Srinagar
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It has been almost four years since the central government scrapped Jammu and Kashmir's special status under Article 370 of the Indian Constitution. As the Supreme Court delivers its judgment after a sixteen-day hearing, it is pertinent to understand the crux of this legal question, referred to as the 'heart of the matter’, by the Supreme Court.

To grasp the essence of this dispute, it is necessary to journey back to the time of independence when British India split into India and Pakistan. Alongside this transformation, the Instrument of Accession became pivotal. This instrument gave princely states, formerly under British rule, the power to decide whether to join India or Pakistan.

Initially, the princely state of Jammu and Kashmir aspired for independence but eventually compromised by signing the Instrument of Accession with the Union of India. During this time, Pakistan's invasion of Jammu and Kashmir necessitated India's protection, considering the state's inability to defend itself.

However, while agreeing to the Instrument of Accession, the Maharaja of Kashmir was reluctant to relinquish complete authority to the Indian Government. Given Jammu and Kashmir's crucial geographic significance as a border state for India, a compromise was struck between the Indian Government and the ruler of Jammu and Kashmir.

Under this accession agreement, India assumed control over defence, foreign affairs, and communications, while the Maharaja retained control over other domains.

Moving on to the formulation of India's Constitution, Article 370 was incorporated to honour the commitment made to Jammu and Kashmir during the Instrument of Accession. This article bestowed special status upon Jammu and Kashmir, allowing the state to create its own Constitution. It permitted the Indian Parliament to legislate on three subjects—defence, foreign affairs, and communications—while requiring agreement or consent from the constituent Assembly of the State for other laws.
Article 370, Clause 1(D) granted the President of India the authority to apply Indian legal provisions to Jammu and Kashmir.

However, for matters related to defence, foreign affairs, and communications, consultation with the Jammu and Kashmir state government was mandatory. Consent from the state government was necessary for other issues.

The existence of the Constituent Assembly of Jammu and Kashmir in 1950 was pivotal. Interestingly, sub-clause 3 of Article 370, deemed a self-destructive provision, allowed for the abrogation of Article 370. It stipulated that while the President could declare Article 370 inoperative or modify it, the recommendation of the constituent assembly was imperative for this action.
Unfortunately, the Constituent Assembly was dissolved in 1957 without making any recommendations, creating a predicament where the Union government aimed to annul Article 370 without fulfilling the constitutional requirement of the constituent assembly's recommendation.

Subsequently, through the Constitution Application to Jammu and Kashmir Order 2019 (popularly known as CO 272), the Union government indirectly altered Article 370 via Article 367 of the Indian Constitution. CO 272 appended an extra clause to Article 367, altering the interpretation of the "constituent assembly of the state" in Article 370, Clause 3, to mean the "legislative assembly of the state." Effectively, CO 272 amended Article 370 without direct modification.

Post-CO 272, Jammu and Kashmir remained under President's rule, lacking a legislative assembly. The Governor, believed to be under the Union government's influence, provided recommendations deemed equivalent to those of the legislative assembly.

This raised a pivotal question: Could the Union Government utilise Article 367, intended for interpretation, to indirectly amend Article 370? Petitioners argued that this action, under the guise of amending the definition clause, might lead to dangerous and substantial alterations in the Indian Constitution. It could potentially grant the Union Government excessive powers, even possibly diluting Article 21 rights (The right to Life) and circumventing the stringent amendment process delineated in Article 368, which mandates ratification by legislative assemblies and a two-thirds majority for certain amendments.

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So the ‘heart of the matter’ is the question of law—whether the Union Government has the mandate to amend Article 370 through Article 367 which has the potential to create a dangerous precedent. This argument is extended to the point that the debate around Article 370 is not something concerning Jammu and Kashmir only, but it could have a ripple effect on the entire Constitution itself.

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