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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.
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*Human rights activist, observer of socio-political contexts of J&K. Contact: jaan.aalam@gmail.com
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