Omar Abdullah’s recent statement on bringing back the posts of ‘Sadr-e-Riyasat’ and ‘Wazir-e-Azam’ for the State of Jammu and Kashmir and Arun Jaitley’s assertion that Article 35A is ‘constitutionally vulnerable’ mandates that we understand the position of Jammu and Kashmir within the Indian Union. This has to be understood keeping in mind, firstly the federal character of the Union which in whatever form envisaged by the Constitution forms part of the basic structure, secondly the contents of and conditions laid down by the Instrument of Accession, which are at the core of this relationship and most importantly by keeping in mind the political situation in which the accession was made.
Before we seek to question the constitutional validity of Article 35A or Article 370, it is important to consolidate the political and legal realities concerning Jammu and Kashmir vis-à-vis the Union of India.
India is a federal state and the basis of a federal state is, recognition of socio-political problems of a particular region. Granville Austin also agrees with the view that India has created a new kind of federation to meet its peculiar needs. Deviating from the traditional concept of federalism wherein states come together to from one entity, India divided itself into states or gave power to already existing states and thus creating two levels of Government within India, wherein the Constitution elucidates on the extent of powers.
This was unlike the United States of America where the states came together through the Articles of Confederation. Prof. Bombwal in Foundations of Federalism points out that the scepticism concerning the federal character of India comes from an unduly textbook approach to federalism. It can also be said that for a nation like India a unitary system of government is not suitable, and federalism is the only method of reconciling unity and diversity.
The position of Jammu and Kashmir has to be looked into keeping this background in mind. It is not to be understood as an aberration to the Indian federal setup, rather a recognition of the circumstances surrounding the accession to India. It may not be wrong to state that the relationship between Jammu and Kashmir and the Union of India, is an integral part of the federal edifice, particularly when the Constituent Assembly of the State no longer exists. This relationship need not necessarily be the similar to the relationship that the union shares with other states. Article 370 and Article 35A are reflective of the recognition of this ‘distinct’ and not ‘special’ relationship that the State of Jammu and Kashmir shares with the Union of India.
Therefore neither of the two articles may be considered to be ‘constitutionally vulnerable’, particularly when the Supreme Court has upheld the powers of the President to apply the provisions of the Constitution to that State subject to such exceptions and modifications as the President may by order specify, exercising its powers under Article 370 of the Constitution of India.
Author is pursuing Masters from TISS, Mumbai