Former home minister P Chidambaram, who is known for his legal acumen, surprised many by telling Parliament in August 2010 that “Jammu and Kashmir acceded to India under very unique circumstances”.
He went on to say that “there is a unique history to the problem and therefore, we must put our heads together to find a solution, a unique solution to this unique problem”.
J&K continues to be preoccupied with issues of political identity but Mr Chidambaram’s statement served then to unsettle those who questioned J&K’s special status in the Indian Constitution, which is guaranteed by Article 370.
In a landmark judgment, the Jammu and Kashmir High Court has echoed Mr Chidambaram’s views by making some very firm comments on Article 370, which proponents of its abrogation should note. The court contends that “the State of Jammu and Kashmir while acceding to Dominion of India, retained limited sovereignty and did not merge with Dominion of India, like other Princely States that signed Instrument of Accession with Dominion of India”.
It says that since the Constituent Assembly of J&K — which was dissolved in January 1957 — did not recommend that Article 370 would cease to be operative, the Article “is a permanent provision of the Constitution” even if its title shows it as a “temporary provision”. The Court also said that Article 370 “cannot be abrogated, repealed or even amended” as the mechanism provided under Clause (3) of Article 370 — i.e. the Constituent Assembly of J&K — “is no more available”.
{{/usCountry}}It says that since the Constituent Assembly of J&K — which was dissolved in January 1957 — did not recommend that Article 370 would cease to be operative, the Article “is a permanent provision of the Constitution” even if its title shows it as a “temporary provision”. The Court also said that Article 370 “cannot be abrogated, repealed or even amended” as the mechanism provided under Clause (3) of Article 370 — i.e. the Constituent Assembly of J&K — “is no more available”.
{{/usCountry}}The Court’s reiteration of J&K’s status will be welcomed in the Valley and reckoned as a setback by those who want Article 370 repealed — the BJP included.
It remains to be seen if this debate will be taken to the Supreme Court. Those who intend to must be mindful of the risks of the apex court agreeing with HC, thereby robbing the issue of its political cache. Social tensions over legal disputes in J&K are, however, set to continue.
The Supreme Court is expected to soon hear a petition challenging the constitutional validity of Article 35A, which allows J&K to define the state’s permanent residents that has implications for buying property, securing employment and voting in elections.
A ruling that alters the status quo is likely to have grave political consequences, in a state already aggravated by the loss of autonomy.