BJP's prime ministerial candidate Narendra Modi's call for a debate on Article 370 of the Constitution, which gives a special status to Jammu and Kashmir, has triggered a fresh round of debate on the controversial issue.
But many legal experts are of the view that abrogating the
provision would put the accession of the state to India in jeopardy.
"Article 370 can't be abrogated. If you do away with it, the very basis of accession will be in jeopardy," constitutional expert Rajeev Dhavan told HT. He, however, said: "The accession of J-K to India is permanent."
Former Jammu and Kashmir high court chief justice BA Khan, too, agrees: "If Article 370 was abrogated, then technically and legally the foundation of Jammu and Kashmir's accession to India would cease to exist."
However, former law minister and senior advocate Shanti Bhushan said it was a very tough question. "Under Article 368, Parliament does have power to amend the Constitution. But in view of the Supreme Court's ruling in the Kesvanand Bharti case, Parliament can't amend the basic structure of the Constitution".
"Unless the question is referred to the Supreme Court and the court gives its opinion, it is very difficult to give a definite answer," Bhushan said. He added it would depend on whether Article 370 is part of basic structure or not.
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Both Justice Khan and Dhavan said Jammu and Kashmir acceded to India under certain conditions. External affairs, communication and defence were to be handled by India but all other issues were left to the state.
But over the years, many central laws have been extended to the state by Presidential orders either by the consent of the state government, or by concurrence of the state government or in some cases by approval of the state legislature.
Can 1953 position be restored as demanded by the state assembly?
Dhavan said: "One view, held by many in Kashmir, is that too much has been acceded to by J&K to India. Kashmir needs real autonomy. It is for this reason that the state assembly passed a resolution demanding restoration of pre-1953 position. The other view is that whatever was done was done and you can't turn the clock back.
"But it is nobody's case that the existing autonomy can be taken away. There is no point in stirring up the debate on this issue. Either give more autonomy or keep the existing limited autonomy," Dhavan said.
Asked if pre-1953 position can be restored, Justice Khan said, "If central laws can be extended to the state by presidential orders, the said laws can be withdrawn as well. But ultimately, it is a political question."
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