Article 370 of J&K Irrevocable

The Supreme Court on Tuesday observed that article 370, which grants special status to Jammu and Kashmir, had acquired permanent status over years through years of existence, making its abrogation impossible.
The issue concerned is covered by the judgement of this court in the 2017 SARFAESI matter, where we have held that despite the headnote of Article 370, it is not a temporary provision,” a bench of justices AK Goel and RF Nariman said.
During the hearing, Additional Solicitor General Tushar Mehta appearing for the Centre, said that the matter be heard after some time as similar matters are pending before the court and are to be listed shortly.
Senior advocate Rajeev Dhavan and advocate Shoeb Alam, appearing for the Jammu and Kashmir government, clarified that other matters which are pending before the top court relates to Article 35 A of the Constitution and not Article 370 as submitted by the ASG. Mr Dhavan said that those matter cannot be heard along with the present case, which only deals with Article 370.
The bench then adjourned the matter for hearing by three weeks on the insistence of the ASG.
The top court was hearing an appeal filed by petitioner Kumari Vijayalakshmi Jha, against the Delhi High Court’s April 11, 2017 order dismissing the plea seeking a declaration that Article 370 is temporary in nature.
The petitioner had claimed before the high court that Article 370 was a temporary provision that had lapsed with the dissolution of the Constituent Assembly in 1957.
The petition had said that the continuance of the temporary provision of Article 370 even after dissolution of Constituent Assembly of J&K, and that of J&K Constitution which has never got the assent of the President of India or Parliament or the government of India, “amounts to fraud on the basic structure of our Constitution”.
Atal Behari Vajpayee, in 2003, had even shown willingness to discuss an autonomy resolution passed by the J&K assembly which recommended sweeping changes between centre-state relations and gave the state greater autonomy.
Recently, senior Congress leader P Chidambaram also talked about holding discussions to give greater autonomy to Jammu and Kashmir. Though his own party — the Congress —distanced itself from comments made by him, calling them his personal views.
The fact is that at least three Prime Ministers of India (one each from BJP, Congress and United Front) had talked about preserving article 370. And this is excluding the views of India’s first Prime Minister Jawahar Lal Nehru, under whose leadership article 370 was furnished, through which the state acceded to India and which gave Kashmir autonomy over all matters except defence, external affairs and communication. The last time such a suggestion was made it was by BJP’s own founding member and former Prime Minister Atal Behari Vajpayee.
On June 26, 2000, the state Assembly of Jammu and Kashmir passed ‘autonomy resolution’. Headed by the then Chief Minister of the state, and the president of National Conference, Farooq Abdullah, the Assembly passed a resolution that recommended sweeping changes in Centre-State relations. At that time BJP, headed by Prime Minister AB Vajpayee and deputy PM LK Advani, set aside the resolution.
But two years later, Vajpayee expressed the Centre’s willingness to discuss the question of J&K’s autonomy.
“We had not set aside the resolution on autonomy (passed by the Jammu & Kashmir Assembly) without giving it a thought. We were ready for talks. We are ready for talks even now,” Vajpayee had said on a visit to the state in May 2002.
Before Vajpayee, the manifesto of United Front government, which came to power in ’96 and was headed by Deve Gowda, contained the words ‘maximum autonomy’ as a promise to Kashmir.
The UF government’s minimum programme, published on June 5, 1996, said ‘respecting Article 370 of the Constitution as well as the wishes of the people, the problems of Jammu and Kashmir will be resolved through giving the people of that State the maximum degree of autonomy’.
Just the year before, Gowda’s predecessor, Congress’ PV Narasimha Rao had also said while talking on the issue of Kashmir, in Burkina Faso, on November 4, that as far as J&K’s autonomy was concerned “sky is the limit”.
Rao had said that he would consider any Kashmiri demand that was “something short of Azadi” and was within the framework of Indian constitution.
Although both these statements, by Rao and Gowda, riled many observers and political appointees, who continued to attack both these PMs for their statements years later. Former governor of J&K Jagmohan, in his autobiography Frozen Turbulence, went on to say that Rao’s comments were not only hollow, cowardly and careless, but “also betrayed an infirm mind”.
National and regional parties have also at various points in last several years batted to give J&K greater autonomy. CPI (M), in a statement issued in July 2000 right after the state’s assembly passed the autonomy resolution, said, “While the CPI(M) stands for greater autonomy within the scope of Article 370 of the Constitution, it also advocates regional autonomy for Jammu and Ladakh within the state.”
In fact, BJP’s own alliance partner in the state – PDP – talked of ‘autonomy’ in their own election manifesto for 2014 Parliamentary elections.
The third point in PDP’s manifesto reads: “In the last 65 years, the Parliament has never deliberated on J&K in any substantive and serious manner. All the well-meaning announcements made by different Prime Ministers be it the P V Narasimha Rao’s “sky is the limit for autonomy”, or Atal Bihari Vajpayee’s “insaniyat kay dairay main” or Manmohan Singh’s “making borders irrelevant” need to be institutionalised for them to have an impact on the ground.
So when Chidambaram talked about ‘seriously examining’ whether the state could be given greater autonomy and if so, “consider on what areas we can give autonomy to Jammu and Kashmir”, he was only reiterating a point that has been promised by Indian Prime Ministers, national party leaders, and leaders of J&K’s own regional parties, and promised to the state through article 370 of the Indian constitution.