The circumstances of Jammu & Kashmir's accession to India were unique. There was nothing in the British partition plan that said Hindu Princely States should accede to India, and the Muslim ones to Pakistan. That is why Jinnah accepted the accession of Junagadh to Pakistan in September 1947, never mind that a popular uprising undid that decision.
In the case of J&K, leaders like Sardar Patel expected the state to go with Pakistan, but Jinnah & Co overplayed their hand when they spooked Maharaja Hari Singh by instigating a tribal invasion of the state. With the invaders approaching Srinagar, Hari Singh reluctantly to acceded to India to enable the Indian Army to come in to fight the tribals.
Under the Instrument of Accession, J&K ceded control of Defence, Foreign Affairs and Communications to the Union government in New Delhi. Till December 31, 1948 Indian forces battled with Pakistani irregulars and regulars who were seeking to wrest the state from India by force. This was also the time in which the Constituent Assembly was drawing up the Constitution for India. In June 1949, Sheikh Abdullah and three of his associates formally joined the national Constituent Assembly and the process of drafting Article 370 was taken up.
After considerable debate, there was agreement through which Article I of the constitution placed Jammu & Kashmir as a state of the Indian Union, whereas Article 370 defined its special status. This article, according to a book by A G Noorani, has six special provisions for J&K.
First, it exempted the state from provisions of the Constitution in relation to the governance of the states of the Union—J&K would be governed through its own constitution.
Second, the Union Parliament's legislative power was restricted to the three subjects—defence, foreign affairs and communications.
Third, if other Union powers were to be extended to the state, it could be done through a Presidential order with the concurrence of the government of the state.
Fourth, even this was limited till the life of the state constituent assembly, which was eventually formed in 1951.
Fifth, this power could only be exercised as long as the state constituent assembly existed. The President was empowered to abrogate or amend Article 370 only with the concurrence of the State's government and ratification by its constituent assembly.
So, as per our constitution, Article 370 cannot be abrogated because the constituent assembly of J&K stands dissolved as of January 1957 when the accession of the state to India was deemed complete.
But this legal conundrum need not detain us. There is one set of issues relating to the legality of Article 370, and quite another set of issues around its politics. The problem has always been in the different ways it has been viewed by the Kashmiri leadership and by the Indian nationalists like Nehru. The former saw it, and continue to see, it as a means of preserving their autonomy, whereas people like Nehru and Patel saw it as a temporary measure which would become redundant over time.
But, the political history of the state, and its relation to the Indian Union, has been a convoluted one and one strangely frozen in time. For example, because India took the issue to the UN Security Concil in January 1949 and the world body has passed a number of resolutions relating to it, most countries in the world continue to view J&K as a territory whose final status remains to be determined. Though most now agree that this can only be done through direct negotiations between India and Pakistan.
Under the Delhi Agreement of 1952, New Delhi committed itself to Kashmiri autonomy pending the writing of its constitution. It was at this point that Abdullah began having second thoughts about links with India, resulting in his arrest in August 1953 and incarceration for various periods of time for the next two decades. In November 1956, the State Constitution was passed in the state constituent assembly and on January 26, 1957, it was formally accepted and the constituent assembly dissolved.
For the BJP, Article 370 is a big issue since one of its icons, Syama Prasad Mukherjee launched one of the first agitations of the party (then Jana Sangh) on the issue of J&K getting a special status. Worse, in the process, he was arrested and died in detention from complications arising out of an untreated health condition. Since then the removal of Article 370 has been on the BJP agenda and the circumstances of his death have flavoured the party's grouse against Pandit Nehru.
No matter how you look at it, the issue is J&K is a complex one. At the heart of it lies the feeling among a significant section of the Kashmiri Muslims that they lack control of their own lives. Whether it is expressed through their refusal to think beyond Article 370, or through the support that many them have given to armed militancy since 1990, there is something that still needs to be settled between New Delhi and Srinagar.
Attempts have been made to do this through the Beg-Parthasarthy Accord of 1975 and subsequently through Prime Minister Manmohan Singh's round table process which led to a report by a working group headed by Justice S Saghir Ahmed on the issue of autonomy in 2010. But little progress has been made since. During the election campaign, Narendra Modi called for a debate on the issue, sparking of a furore. Today, he is Prime Minister and so responsible for J&K, which remains an important unfinished item on the nation's political agenda.
The writer is Distinguished Fellow, Observer Research Foundation, New Delhi. He is also the author of Lost Rebellion: Kashmir in the Nineties (Penguin, 1999)