The constitutional validity of the Presidential order dated 5th of August 2019, is, no doubt, going to be strongly debated in constitutional courts. But until then, decrying the order as being violative of constitution may not be appropriate. The said presidential order about the applicability of constitution of India to the state of Jammu & Kashmir, along with the necessary modifications in Article 367 and Article 370 (3), states exactly what the founding fathers aimed to achieve at a future date.
All, those criticizing the order, must not forget the fact that, Article 370 is included in Part XXI of the constitution. The head note of that part says ‘Temporary, Transitional and Special Provisions’. It means Article 370 is temporary in nature and transitional in scope. Black’s Law Dictionary defines the word “temporary” as ‘lasting for a time only; existing or continuing for a limited time’. The same dictionary defines ‘Special’ as ‘designated for a particular purpose’. So, when the founding fathers included the article in Part XXI, they essentially understood that the provisions under this part would be for a limited time and for a particular purpose alone. The statement of Shri N. Gopalaswamy Ayyangar in the constituent assembly debate dated 17th October, 1949 is relevant in this context, when he said “…(B)ut that cannot be a permanent feature of the Constitution of the State, and hope it will not be.”
What might have been the purpose of inserting a temporary provision in the constitution? Answering to Maulana Hasrat Mohani, Shri Ayyangar said “(t)he discrimination is due to the special conditions of Kashmir.” He went on to say, the state of Jammu & Kashmir was not ripe for full integration like other states and hoped that in due course it would become ripe for the same sort of integration as had taken place in the case of other states. This exhortation clearly explains that Shri Ayyangar, the author of this provision, himself was sure about the ‘transitional’ nature of Article 370.
However, over the years, the constitutional courts seem to have ruled otherwise more than once. In Sampat Prakash vs State Of Jammu & Kashmir & Anr the Supreme Court has, first, held that after the dissolution of constituent assembly of Jammu & Kashmir, Article 370 had assumed a permanent character. Scores of later cases have been decided on this ground. Hence, naturally, the present Presidential Order is going to be tested on the premises set by Sampat Prakash.
In the present context, it is pertinent to analyse the reasoning of the Sampat Prakash judgement in some details. In that case, the constitutional bench held that, the special conditions that necessitated the insertion of Article 370 (then Art. 306A) during the constitutional assembly debates remained the same (at the time of delivery of the judgment). The bench accepted the argument of then Learned Attorney General that “ … (t)he provisions of Art. 370 should be held to be continuing in force, because the situation that existed when this article was incorporated in the Constitution had not materially altered, and the purpose of introducing this article was to empower the President to exercise his discretion in applying the Indian Constitution while that situation remained unchanged.” Such might have been the case in the year 1969 when the case was decided, but fifty years later, the material conditions have reasonably changed.
Shri Gopalaswamy Ayyangar talked about seven then prevailing special conditions in the state of Jammu & Kashmir which required the incorporation of article 370 (then Art. 306A). These conditions were
(1) that there had been a war going on within the limits of Jammu & Kashmir State;
(2) that there was a cease-fire agreed to at the beginning of the year and that cease-fire was still on;
(3) that the conditions in the State were still unusual and abnormal and had not settled down;
(4) that part of the State was still in the hands of rebels and enemies;
(5) that our country was entangled with the United Nations in regard to Jammu & Kashmir and it was not possible to say when we would be free from this entanglement;
(6) that the Government of India had committed themselves to the people of Kashmir in certain respects which included an undertaking that an opportunity be given to the people of the State to decide for themselves whether they would remain with the Republic or wish to go out of it; and
(7) that the will of the people expressed through the instrument of a Constituent Assembly would determine the Constitution of the State as well as the sphere of Union Jurisdiction over the State.
A careful analysis of the above conditions shows that most of these issues have either settled out, or have taken up an entirely different form. For example, Today, no war is going on within the limits of Jammu & Kashmir. Instead, heightened terrorist activities are being witnessed. There is a major difference between war and terrorism. Whereas in war, two belligerent nations are engaged with each other militarily, in terrorism, non-state actors create violent disturbances. Terrorism is essentially an internal issue, a law and order problem, unlike wars. Secondly, the cease fire agreement that Shri Ayyangar talked about does not hold any ground in the present context when India and Pakistan have already engaged themselves in two open wars since the Sampat Prakash judgement. Now, the cease fire lies across the line of actual control. Thirdly, it is debatable as to what unusual and abnormal conditions Shri Ayyangar talked about. If he was referring to the Pakistani invaders of 1948, then the situation had actually changed. Today, terrorism is more focussed towards Kashmiri born terrorists and their eulogization- Burhan Wani episode is a case in point. Though, these groups are foreign funded and foreign logistics equipped, they are essentially homegrown non state elements. Admittedly, the situation is unusual to the extent that, there is virtual collapse of strong arm of the state to control divisive tendencies. In short, a situation of external aggression of 1948 has been transformed into a situation of foul play by non-state actors. Having said so, one needs to take cognizance of the fact that, in last fifty years, multiple democratically elected governments have duly adorned the seat of governance in the state which was not the case when the Constituent Assembly decided to incorporate Art. 370 (306 A).
Fourthly, is any part of the state in the hand of rebels or enemies? As of today, if undivided Kashmir is taken into consideration, Pakistan and China claim a part of Kashmir each and display them in their geographical maps. India, also accepts the fact that a part of Kashmir state is under foreign occupation and Indian government power extends to line of actual control alone and not to the foreign occupied territories of the Jammu & Kashmir state. One cannot equate the Chinese or Pakistani position as rebel occupation.
Fifthly, what is the extent of the India’s entanglement with United Nations with respect to the Kashmir issue? The United Nations first got involved in the Kashmir conflict through the United Nations Security Council Resolution 47. Since then various attempts had been made by the United Nations to mediate into the conflict. However, in 1972 the Shimla Agreement has been signed between India and Pakistan to resolve all the differences through bilateral negotiations, which has reduced the degree of entanglement, which Shri Ayyangar talked about, to a very large extent . If media reports are to be believed, referring to Shimla Agreement UN chief Antonio Guterres rejected third party mediation in Kashmir conflict after Pakistan requested the UN to play its ‘due role’.
Sixthly, the Government of India’s commitment to the people of Jammu & Kashmir to provide an opportunity to decide whether to stay in the Union is clearly implied from the Instrument of Accession. The Instrument of Accession was a contractual agreement between two entities—the Dominion of India, a political body created by British Parliament by enactment of Indian Independence Act, 1947, and the Princely state of Jammu and Kashmir, a sovereign entity. What is the legal validity of the IoA now? Whereas the dominion of India had ceased to exist and Union of India has emerged, instead, as a sovereign entity, the princely state of Jammu & Kashmir had lost its sovereignty completely. A sovereign entity like Union of India cannot be said to have a legal obligation to a non-sovereign entity like Jammu & Kashmir. Any obligation that exists at all, may at best be classified as good faith obligation. Hence, the conditions in instrument of accession cannot be invoked to challenge the amendment to article 370.
Finally, it is true that the founding fathers have recognized the right of the people of the state of Jammu & Kashmir to decide their constitution as well as the extent of union jurisdiction through a constituent assembly. By this, the founding fathers meant that, the constituent assembly of Jammu & Kashmir would decide the fate of the state in finality and till that time the temporary provisions of Article 370 would be applied. However, constituent assembly of Jammu & Kashmir was dissolved in 1957 without deciding the fate of the article in finality which made the Hon’ble Supreme Court to rule (in the year 1969) that the special conditions being still present Article 370 had taken a permanent feature. However, a counter argument can be preferred. Article 370 (3) requires the concurrence of constituent assembly of the state of Jammu & Kashmir. But as the constituent assembly is dissolved, one is faced with a situation known as legal gap. A legal gap arises when there is a complete or partial absence of rules of law on whose basis a state agency could decide a question of application of the law in a case, subject to legal regulation. Gaps in the law may occur because such a case was not taken into account when the law was created or because the case is a result of new social relations that emerged after the law was promulgated. The founding fathers could not have fathomed that the constituent assembly of Jammu & Kashmir would cease to exist without a definite verdict on Art. 370. It is pertinent to remember the statement of Shri Ayyangar in the constituent assembly wherein he hoped that the state of Jammu and Kashmir would be integrated with the Union of India in the same manner as the other princely states had integrated. When the onus of this momentous decision was on the people of Jammu & Kashmir (through their constituent assembly), unfortunately no decision was taken leading to a legal void or gap. It continued so, for seven decades.
Without naming it so, A.G. Noorani had analysed this legal gap in some depth in his “Article 370: Law and Politics”. He based his proposition on the ruling of Premnath Kaul v. State of Jammu & Kashmir wherein a constitutional bench had held that “”the Constitution-makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself.” This means if constituent assembly is dissolved there cannot be any scope for further expansion of Indian Constitution to the state of Jammu & Kashmir via Article 370 (1)(c ) and (1) (d). A. G. Noorani criticizes Sampat Prakash’s ruling (of permanent character of Article 370) because he believed the Supreme Court failed to take note of the Premnath Kaul judgment. It appears he seems to be fixated at a definite opinion in the face of a legal gap. So is Mr. Noorani right in his argument or is there another way?
The best description of manoeuvring legal gaps is found in the interpretation of liberal Public law doctrine which presumes the fulness of legal code and perceives them as systemic anomalies, at best. The Article 4 of Napoleonic code is relevant in the contemporary legal theory too, as it provides an action plan to deal with the legal gaps. According to it, a judge may not keep his peace and remain silent in the face of the argument that since the law has neither foreseen nor made provisions for a specific actual situation; or the text of the law is both unclear and ambiguous in relation to a particular set of circumstances; or the text of law covers concrete situation at hand but with obvious limitations, then in all or any of the circumstances a judge may not make a pronouncement on the matter. So what option is left with the judge? Judge is bound to behave as if the law were a complete and coherent system. The decision of the bench in Premnath Kaul or in Sampat Prakash does not follow this principle because the special situations debated in the constituent assembly debates were still in force at that time. However, when all the special conditions (stated by Shri Ayyangar in Constituent assembly debate and quoted in the Sampat Prakash judgement) have ceased to exist, the onerous duty lies on the constitutional court to see that the legal gap is bridged for the purpose of fullness of legal code. And what can give a clearer picture about the fullness of the constitutional framework of this country than the thoughts and hopes of the founding fathers?
 The Constitution (Thirteenth Amendment) Act, 1962.
 1970 AIR 1118, 1970 SCR (2) 365.
 Economics Times, UN chief rejects Pak’s mediation request, cites Simla Agreement that says Kashmir a bilateral issue. Available at https://economictimes.indiatimes.com/news/politics-and-nation/un-chief-rejects-paks-mediation-request-cites-simla-agreement-that-says-kashmir-a-bilateral-issue/articleshow/70600296.cms
 In State Bank of India v. Santosh Gupta, the Supreme Court accepted that “It is thus clear that the State of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution.”
 The Great Soviet Encyclopaedia, 3rd Edition (1970-1979). © 2010 The Gale Group, Inc. All rights reserved
 A.G. Noorani. Article 370 : Law and Politics, Frontline, Volume 17 – Issue 19, Sep. 16 – 29, 2000
 1959 Supp (2) SCR 270 “ AIR 1959 SC 749
 Jan M Broekman, BEYOND LEGAL GAPS, Law and Philosophy 4 (1985) 217-237. 0167-5249/85.10.