Broken vows, court wars on ‘special status’

But Abdullah was fundamentally opposed to the two-nation theory, Partition’s driving principle. He had a socialist dream — his land-to-tiller plan aimed to lift landless peasants out of centuries of misery — and he wanted to make education free and universal. In his vision, Kashmir’s many Lal Chowks would be the Red Squares of revolution. He put his trust in the commitments that the Indian leadership made, and the guarantees enshrined in the Indian Constitution. He believed that J&K could survive and prosper as an autonomous entity within a secular, democratic Indian Union. But Abdullah’s hopes were misplaced.

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Nehru handpicked Abdullah’s deputy, Bakshi Ghulam Mohammad, to replace him. Bakshi remained in charge until 1963; a year later, the post of Prime Minister was abolished. For years thereafter, successive central governments organised sham elections and mounted sustained attacks on J&K’s special status. Abdullah was released from prison in 1964, only to be incarcerated again, and even exiled from the state. He became Chief Minister again in 1975 and 1977, and passed away while in office in 1982.

Read | J&K special status: In Supreme Court, an old matter back in a new context

Unlike other princely states, J&K negotiated the terms and conditions of its entry into the Union. It wanted its own Constitution, drafted by its own Constituent Assembly. Article 370, which determines the contours of J&K’s relations with the Centre and exists as the constitutional cord between Kashmir and Delhi, was introduced in the Indian Constitution after Abdullah and Nehru discussed it for five months between May and October, 1949.

According to Constitution expert A G Noorani, Article 370 “exempted the state from the provisions of the (Indian) Constitution providing for the governance of all states; J&K was allowed to have its own Constitution”. While Parliament’s legislative power over J&K was restricted to Defence, Foreign Affairs and Communication, Noorani says, “if other constitutional provisions or other Union powers were to be extended to Kashmir, the prior “concurrence” of the state government was required”. This provision, he says, was “strictly provisional, and had to be ratified by the J&K Constituent Assembly”.

Read | Seventy years on, digging a deeper hole in Kashmir

The first Presidential Order, extending provisions of the Indian Constitution to J&K, was issued in 1950, but was replaced by another Order issued in 1954. This Order — which became the ‘mother’ order subsequently — had the concurrence of both the state government and the J&K Constituent Assembly. Since then, 42 Presidential Orders have been issued, which were amendments to the 1954 mother order. All these subsequent amendments to the 1954 Order could not fulfill the requirement of being ratified by the J&K Constituent Assembly, which had dispersed in 1956. Nonetheless, the Centre kept using these Orders to hollow out J&K’s autonomy and special status.

Through these Orders, Delhi extended 94 out of 97 entries in the Union List to J&K, and 260 out of 395 Articles of the Indian Constitution were made applicable to the state. These amendments to the 1954 Order overrode the Constitution of J&K. The Prime Minister of J&K became Chief Minister, the elected Head of State, called Sadr-e-Riyasat, was replaced by a Governor chosen by centre, and the powers of India’s Supreme Court and Election Commission were extended to the state. One Presidential Order was issued to prevent the state Assembly from making any amendment to the J&K Constitution. When Jagmohan was Governor in 1986, the Centre extended Article 249 to J&K, thus allowing Parliament to legislate even on issues in the State List. The constitutionality of this Presidential Order was immediately challenged by two senior National Conference leaders, Abdul Rahim Rather and Mohammad Shafi. The case is still pending in court.

Unlike in Punjab, where Parliament had to amend the Constitution repeatedly to impose President’s Rule, in J&K, the Centre imposed direct rule by simply issuing amendments to the 1954 Presidential Order.

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Delhi’s attitude towards J&K’s special status has been evident ever since Abdullah was arrested in 1953. On November 27, 1963, Nehru told Parliament that the government did not want to completely end Article 370, rather, it would allow its gradual erosion. “Nehru was conscious of the indelicacy of the metaphor,” says Noorani. “Article 370 was not ‘eroded’ by the efflux of time or the ravages of the elements. It was denuded of content by conscious executive acts on his (Nehru’s) advice through one Presidential Order after another,” he adds. A year later, Home Minister Gulzari Lal Nanda candidly admitted that Article 370 had been emptied of its contents, and only a shell remained.

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While Congress governments chipped away at J&K’s constitutionally guaranteed special status by emptying out Article 370, the BJP government seeks the state’s complete assimilation into India. The Sangh and its affiliated groups have long viewed the Muslim-majority demography of J&K as the primary problem — and believed that settling people from outside the state, with rights to acquire land and property, and the right to vote in Assembly elections, is the only way to permanently end the Kashmir dispute. This is why they see Article 35A of the Indian Constitution, a provision that empowers the J&K legislature to define “Permanent Residents” of the state, as a major hurdle.

The political reaction in the state has been along expected lines. Barring the BJP in Jammu, no major political voice anywhere has supported the removal of Article 35A. Arch rivals PDP and NC have said there would be no J&K left if this provision is tampered with, and have vowed to fight the battle together. Chief Minister Mehbooba Mufti has warned that if Article 35A is removed, there won’t be anyone left to carry the Tricolour in Kashmir; Omar Abdullah has called it the death knell for pro-India politics in the Valley. The separatists have called a hartal in protest — like the NC and PDP, they too look at the move as an attempt to change Kashmir’s demography.

To be sure, this isn’t the first time that such issues have reached the Supreme Court.  The difference this time lies in the support the Centre — the primary respondent — has extended to such moves.