It is correct that Article 370 confers certain special rights and exemptions to J&K, but all of it was intended to be a temporary phase. This is very clear from the placement of Article 370 in Part XXI of the Constitution, ?Temporary, Transitional and Special Provisions?. It is a creation of India'sown Constituent Assembly. If it goes, the special position of J&K also goes. Now, the entire matter revolves around the question as to who can remove this obnoxious Article.
After the Partition, India'sreconstituted Constituent Assembly consisted of 299 members of whom 229 were elected from the Provinces and 70 from the Princely States of the time, including J&K. The Constitution as passed on November 26, 1949 superseded all the earlier agreements or Instruments of Accession, signed by the rulers of the princely states by which the states, including J&K, had surrendered only defence, foreign affairs and communication to the Union Government. Moreover, the rulers of Hyderababd, Mysore and J&K adopted the Indian Constitution by proclamations, (CF Introduction to Constitution of India, by Durga Das).
Article 370 was inserted in the Constitution because the Indian government of the time headed by Jawaharlal Nehru did not recognise the Maharaja of J&K, as the true representative of the people of J&K. Instead, it recognised Sheikh Abdullah, leader of the National Conference, as the representative of the people. It is not that Sheikh had put up such a claim or he was an elected leader of the people of Jammu & Kashmir as a whole. It was the Government of India which, unfortunately, gave him that unique status. It also declared that the will of the people of J&K would be ascertained before its accession to India was made final.
In October 1947, in the guise of Afridid Tribesmen, Pakistan invaded J&K to grab it by force. The Indian government took up this Pakistani aggression in the UN'sSecurity Council in December 1947, stating, inter-alia, ??But in order to avoid any possible suggestion that India had utilized the State's(J&K?s) immediate peril for her own political advantage, the GOI makes it clear that once the soil of the State had been cleared of the invader and normal conditions restored, its people would be free to decide their future by the recognized democratic method of plebiscite or referendum which in order to ensure complete impartially, might be held under international auspices?. In pursuance to this reference, the Security Council, in its Resolution No. 48 of 1948, stated that ?the Government of Pakistan should undertake to use its best endeavours to secure the withdrawal from the state of Jammu and Kashmir of the Tribesmen and Pakistani nationals not normally residents therein who have entered the State for the purpose of fighting and to prevent any intrusion into the state of such elements and any furnishing of materials and to those fighting the state?.
Pakistan did not comply with the above resolution. To add salt to the injury, it ceded about 20,000 sq. kms. of the State'sterritory to China. Further, it merged large portions of its forcibly occupied territory with the mainland of Pakistan. By 1960, it was very clear to India and even the Security Council that Pakistan had no intention to vacate the territories under its occupation. Not only that, Pakistan launched a fully armed attack on India in August 1965 to forcibly occupy the whole of J&K.
While Article 1 of the Constitution (India, that is Bharat, shall be a Union of States as specified in the First Schedule and such territories as may be acquired) reflects the legal effect of the Instrument of Accession, Article 370 reflects the assurance of obtaining the consent of the people before deciding final accession of J&K to India. As a temporary measure, Article 370 provides that: (a) The provisions of Article 1 and Article 370 apply to J&K by their own force. Other provisions of the Constitution will apply as the President may by order specify with the concurrence of the State Government; (b) The power of Parliament to make laws for J&K will be limited to (i) those matters of the Union List and the Concurrent List which the President may decide as corresponding to matters specified in the Instrument of Accession; (ii) such other matters as the President may decide with the concurrence of the State Government; (c) the President may declare that this Article shall cease to be operative or shall operate with such modification, but recommendation of the Constituent Assembly should be obtained before issuing such an order.
In a way, Jammu & Kashmir was to be a centrally administered area for the time being in consultation with the interim Government of J&K recognised by the President. J&K'sConstituent Assembly met for the first time in 1951. In 1954, it ratified the accession of the State with India, made an internal Constitution for J&K, ( in lieu of Part VII of the Indian Constitution that is meant for administering other States), and was dissolved in November 1956.
The contention that even the Union Parliament cannot amend or repeal Article 370 is illogical and based on misunderstanding. If accepted, it will mean that Article 370 is a super-Constitution, something more sacrosanct than the Constitution itself. Such a proposition is absurd. Article 370 cannot be allowed to become a bhasmasur. With Article 368, the Union Parliament is all powerful and competent enough to amend or repeal any Article of the Constitution, including Article 370. The only logical view is that, if the President wanted to abrogate or modify Article 370, before the Constituent Assembly was formed or during its lifetime, he had to obtain its recommendation. After the Constituent Assembly was dissolved in November1956, there is no impediment in the exercise of the powers of the President to abrogate this temporary Article.