Skip to main content

Challenging Article 35-A: A BJP "assault" on special rights given to Kashmiri people

By Syed Mujtaba*
The former ruler of Jammu and Kashmir (J&K), Maharaja Hari Singh, signed the Instrument of Accession on October 26, 1947, joining the whole of his princely state to the Dominion of India. By accepting the accession, the Dominion of India acquired jurisdiction over the state only with respect to defence, external affairs and communications. Clause 7 of the Instrument of Accession specifically protected the state’s right to ratify the application of any future constitution of India in its territory.
Clause 7 reads:
“Nothing in this Instrument shall be deemed to be a commitment in any way as to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangement with Governments of India under any such future Constitution.”
It is also pertinent to refer to Clause 8 of the Instrument of Accession, which says that the state retains sovereignty in all matters other than those specified in the Instrument of Accession.
Clause 8 reads as:
“Nothing in this Instrument affects the continuance of my sovereignty in and over this State or save as provided by or under this Instrument the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.”
Article 35-A protects the laws conferring on permanent residents of J&K special rights as regards employment, acquisition of property and settlement in the state. A saving clause, it is subject to constitutional challenge in a petition before the Supreme Court.
Interestingly, during two earlier petitions in 1960s and 1970s, the court had already made it clear that J&K enjoys a special status under Article 370 and no fiddling can be made with regard to 35A.
But since the imposition of the Governor’s rule, J&K has witnessed an “anti-Kashmir” wave under aegis of the BJP’s local as well as Central leadership. Deep state manoeuvres in the shape of scrapping Article 35A through judiciary has stirred every Kashmiri, irrespective of his or her political affiliation to denounce and stand against it. Kashmiri people have become well aware and are united over such attempts, which are aimed at challenging the demographic character of the state.
To prevent widespread protests on 35A, the state’s forces have stepped up to arrest number of youth to deter innocent Kashmiri masses from protesting against scrapping 35A. Frequent suspension of mobile and internet services has become a usual norm. Persons affiliated with legal fraternity in India have raised questions about the attempts of the BJP-sponsored move to scrap 35A.
It is strongly felt by them that Article 370 accorded to J&K is a set of special privileges, including an exemption from constitutional provisions governing states. Moreover, it restricts Parliament’s powers to legislate over the state to three core subjects, and also grants the Indian President the power to make orders on recommendation of the State’s Constituent Assembly.
Clearly, Article 368 – which grants constituent power to make formal amendments and empowers Parliament to amend the Constitution – cannot be mechanically apply to J&K. For such amendments to apply to the state, specific orders must be made under Article 370, after securing the J&K government’s prior assent. What’s more, such amendments will also need to be ratified by the State’s Constituent Assembly.
Separatist leaders , trade unions , religious organisations etc. have threatened that any attempt to change the demography of the state by “tinkering” with Article 35A will be “intolerable” and warned that Kashmiris would “spill their blood” to safeguard the identity and character of the state and “no court, whether in India or in Pakistan, has any jurisdiction to take decisions that can in any way affect the disputed status of Jammu and Kashmir”.
Furthermore the former Chief Minister , Mehbooba Mufti, said, “Any attempt to fiddle with it will amount to violating its basic structure”, and MP Farooq Abdullah said “Any attempt to fiddle with Article 370 (35A) will not be tolerated by the Kashmiris people.”
Tinkering with the Article is used as a political strategy by the Centre to change the demography of the state. Be it the rigging of 1987 elections or atrocities inflicted by Public Safety Act (PSA) and Armed Forces Special Powers Act (AFSPA), New Delhi’s policies towards Kashmir haven’t changed much. The Centre has never really given Kashmir the promised ‘right’. What the Congress did behind the curtain, the BJP is doing it openly.
---
*Human rights activist, observer of socio-political contexts of J&K. Contact: jaan.aalam@gmail.com
-->

Comments

TRENDING

Savarkar 'criminally betrayed' Netaji and his INA by siding with the British rulers

By Shamsul Islam* RSS-BJP rulers of India have been trying to show off as great fans of Netaji. But Indians must know what role ideological parents of today's RSS/BJP played against Netaji and Indian National Army (INA). The Hindu Mahasabha and RSS which always had prominent lawyers on their rolls made no attempt to defend the INA accused at Red Fort trials.

'Dargah site was a temple': Claim in Gujarat following post-Babri verdict demands in UP

By Rajiv Shah  Will Gujarat also see demands to replace mosques and dargahs with Hindu temples? It would seem so, if a new fact-finding team conclusion is any indication. Apprehending the “danger” of communal conflagration, it has cited the claim on a 15th century dargah was originally a Hindu temple – allegedly quite on line with what has been happening in UP following the Supreme Court verdict on Babri Mosque.

Anti-poor? 'Cumbersome' to link aadhaar, voter ID for people sans internet access

By Prashant Kumar Chaudhary, Ajit Kumar Jaiswal*  At present, technology plays an increasingly crucial part in modelling human existence by offering a variety of solutions to many of the challenges individuals confront in the real world. As a result, every branch of research works to provides means to solve these difficulties precisely and efficiently. The Central government works along the same lines as well.

Sweden-backed study: India won't achieve 2030 UN goals, officials can't recognise SDG

By Rajiv Shah  A Swedish Society for Nature Conservation (SSNC)-sponsored study, carried out by the advocacy group Consumer Unity & Trust Society (CUTS) India, seeking to analyse the United Nation's Sustainable Development Goal (SDG) No 12, Responsible Consumption and Production (RCP), has regretted, it is "very unlikely" India will achieve any of the targets of SDG 12 by 2030 "unless some serious measures are taken by the government to reverse the present trend."

India reaches 8th of 10 stage genocide: US Muslim advocacy group raises 'alert'

By Hena Zuberi* India has reached the 8th stage of genocide with the persecution of the Muslim community. Stating this, Professor Greg Stanton, who heads Genocide Watch, declared a Genocide Emergency Alert for India today at Justice For All online briefing.

Swami Vivekananda's views on caste and sexuality were 'painfully' regressive

By Bhaskar Sur* Swami Vivekananda now belongs more to the modern Hindu mythology than reality. It makes a daunting job to discover the real human being who knew unemployment, humiliation of losing a teaching job for 'incompetence', longed in vain for the bliss of a happy conjugal life only to suffer the consequent frustration.

Why Church in India today needs a Rutilio Grande, martyred for stance on social justice

By Fr Cedric Prakash SJ*  For the people of El Salvador, January 22, 2022 will be more than just a red-letter day. Three of their sons, Jesuit Fr Rutilio Grande and his two lay associates 72-year-old Manuel Solorzano and 15-year-old Nelson Rutilio Lemus (and Italian Franciscan missionary Fr Cosme Spessotto who was also martyred) will be beatified in San Salvador.

Savarkar 'opposed' Bhagat Singh's, Netaji's dream of India, supported British war efforts

By Shamsul Islam* In a shocking development, the student wing of the RSS put the busts of martyrs Bhagat Singh and Subhash Chandra Bose with Savarkar's on one pedestal at the University of Delhi late in the night on August 20, 2019. Bhagat Singh sacrificed his life for a socialist-democratic-secular republic and Netaji raised Azad Hind Fauj (INA) consisting of people of all religions and regions for armed liberation of India.

Gender insensitive? Model Gujarat's cyclone relief package ignores 40,000 fisherwomen

CSJ volunteers talking to fisherwomen By Rajiv Shah  A Centre for Social Justice (CSJ) note on the Gujarat government’s compensation package to the victims of the devastating Tauktae cyclone, which hit the coastal belt of Saurashtra's Amerli, Rajula, Una, and Gir-Somnath districts in May 2021, has said, the relief offered was so terribly inadequate that many of the fisherfolk were not able to fish for the rest of the year.

Stop harassment, release Kashmir rights defender Khurram Parvez: Global NGO

By Our Representative  Ahead of his hearing on January 21, 2022, CIVICUS , a global civil society alliance with more than 10,000 members worldwide, has called upon the Government of India to “immediately and unconditionally” release human rights defender Khurram Parvez. “The judicial harassment he is facing highlights the repressive environment for activists and critics in Indian administered Jammu and Kashmir”, it said in a statement.