J&K Special autonomy: Temporary or permanent
On August 15, 1947, when India and Pakistan became independent states, the kingdom of Jammu and Kashmir did not cede to either dominion. Instead, its maharaja proposed a “Standstill Agreement” with both countries.
Pakistan entered into a Standstill Agreement with Jammu and Kashmir, but India did not. It wanted to hold further negotiations. And on October 26, 1947, Maharaja Hari Singh signed the Instrument of Accession whereby Jammu and Kashmir agreed to accede to the Union of India.
The first India-Pakistan war over the accession of Jammu and Kashmir led to a delay in the integration of the state with the Union. Since the Constitution of India was being drafted during the tussle over Kashmir, it was felt that a transitional provision had to be included in it regarding the relationship between India and the state. This was to be an interim arrangement till the Constituent Assembly of Jammu and Kashmir had been elected to determine the status of the relationship with India. This took shape in the form of Article 370, which bestowed “special status” on Jammu and Kashmir.
The special status arose out of the peculiar manner in which the state had acceded to India and not because of the demographic component of its people, as often misrepresented by various sections. Sheikh Abdullah, the unmatched leader of the Kashmiri masses, also sought a special status in light of these circumstances.
In Nehru’s letter to Sheikh Abdullah on May 18, 1949, he stated that Sardar Patel and he had agreed that except for subjects conceded to the Union in the Instrument of Accession, it was for the state Constituent Assembly to determine the status of the other subjects.
In 1950, the Constitution of India came into effect and in it, Article 370 was the guiding light for the relationship with Jammu and Kashmir.
Article 370(1)(b)(ii) and Article 370(1)(d) of the Constitution state that
the concurrence of the state government is needed when making decisions under the Union List and the Concurrent List apart from the subjects under the Instrument of Accession.
Such concurrence is also needed for the extension of Articles of the Constitution of India to the state of Jammu and Kashmir. The power of extending laws to the state of Jammu and Kashmir was to be exercised through orders issued by the president of India.
Article 370(2) states that when the Constituent Assembly is convened, the concurrence given by the state government shall be placed before it and it can make decisions regarding the same. This indicates that this was an interim measure to determine legislative and executive relations with the state till the Constituent Assembly had been formed.
Article 370(3) states that the president can declare Article 370 to be inoperative, but only with the recommendation of the Constituent Assembly. The Supreme Court in Prem Nath Kaul versus State of Jammu and Kashmirhad clarified that the framers of the Constitution wanted the Constituent Assembly to finally determine the relationship between India and the state.
In 1951, the Constituent Assembly was constituted based on an election that was swept by Sheikh Abdullah’s National Conference. In 1952, Nehru and Sheikh Abdullah entered into the Delhi Agreement whereby it was agreed that Jammu and Kashmir would have full power over subjects other than those acceded under the Instrument of Accession. On February 6, 1954, the Constituent Assembly ratified the accession to India and reiterated its special relationship with the Union of India.
The Constitution of Jammu and Kashmir came into force in 1957, with Article 147(c) stating that no amendment can be made to the Constitution in relation to the provisions of the Constitution of India as applicable to the state; this would, for all purposes, include the relationship enshrined under Article 370.
It is important to note that Article 370 cannot be made inoperative without the consent of the Constituent Assembly, but the tampering of the special relationship between India and Jammu and Kashmir as enshrined in the Article is specifically barred by this provision of the Constitution of Jammu and Kashmir, thereby bringing permanency to the state’s special status.
Views of different parties
National Conference:
Farooq Abdullah has said tinkering with 35A is tantamount to “playing with fire.” He has threatened violence on a scale bigger than 2008 Amarnath row.
“Agenda of the BJP and the RSS is basically to erode autonomous structure of this state and we as a united front are going to bring this to people, so that they know what the dangerous implications are of the abrogation of Article 35A,” he has told reporters.
His son and former chief minister Omar Abdullah, said in a conference, a “larger debate” on 35A would necessarily entail a larger debate on the terms of accession of J&K to India.
PDP
Mehbooba Mufti has maintained an absolute unyielding stance on Article 370. Her party, the PDP, and the BJP had signed an ‘Agenda of Alliance’ as a broad framework of what the coalition government was looking to achieve in the next six years in J&K.
A little bit of give-and-take was perceived to have happened as the PDP diluted its stand on AFSPA and the BJP agreed to maintain status quo on Article 370.
On Article 35A, Mehbooba Mufti recalled this ‘promise’ recently. “Our Agenda of Alliance was based on a foundation that the status of Article 370 can’t be altered or fiddled with... so none of us (PDP-BJP) can go against that.”
She also claimed that she had “100% support” from PM Modi on status quo for Article 370.
BJP
The party has always talked about abrogation of Article 370, arguing that these special provisions were temporary in nature, but agreed to maintain status quo in its agreement with the PDP. However, spokespersons and senior leaders have always maintained that Article 35A was “not a sacred cow that cannot be touched”.
Centre
The Centre, in the past several legal challenges to Article 35A, has maintained that the article cannot be tampered with.
This time the central government, through Attorney General KK Venugopal, told the Supreme Court that it wanted a “larger debate” on the issue as it was “very sensitive” in nature. He also asked that the matter be referred to a larger bench given the constitutional issues involved.
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