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

'Enough evidence' in Indian tradition to support legal basis for same-sex marriage

By Iyce Malhotra, Joseph Mathai, Sandeep Chachra*  The ongoing hearing in the Supreme Court on same-sex marriage provides space for much-needed conversations on issues that have hitherto remained “invisible” or engaged with patriarchal locker room humour. We must recognize that people with diverse sexualities and complex gender identities have faced discrimination, stigma and decades of oppression. Their issues have mainly remained buried in dominant social discourse, and many view them with deep insecurities.

Buddhist shrines were 'massively destroyed' by Brahmanical rulers: Historian DN Jha

Nalanda mahavihara By Our Representative Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book , "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".

Victim of communal violence, Christians in Manipur want Church leadership to speak up

By Fr Cedric Prakash SJ*  The first eleven days of May 2023 have, in many ways, been a defining period of Indian history! Plenty has happened in a rapid-fire stream of events. Ironically, each one of them are indicators of how crimes and the criminalisation of society has become the ‘new norm’; these include, the May Day rallies with a focus on the four labour codes which are patently against the rights of workers; the U S Commission on International Religious Freedom (USCIRF) released its Annual Report on 1 May stating that conditions for religious freedom in India “continued to worsen in 2022”; the continued protest by the Indian women wrestlers at Jantar Mantar for the expulsion of the chief of the Indian Wrestlers Federation on very serious allegations; the Elections in Karnataka on 10 May (with communalism and corruption as the mainstay); the release of the fake, derogative and insensitive film ‘The Kerala Story’; the release of World Free Press Index on 3 May which places India

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.

Polygamy in India "down" in 45 yrs: Muslims' from 5.7 to 2.55%, Hindus' 5.8 to 1.77%, "common" in SCs, STs

By Rajiv Shah Amidst All India Muslim Personal Law Board (AIMPLB) justifying polygamy, saying it “meets social and moral needs and the provision for it stems from concern and sympathy for women”, facts suggest the the practice is down from 5.7 per cent of Muslim families in 1961 to 2.55 per cent in 2006.

Modi govt 'wholly untrustworthy' on Covid data, censored criticism on pandemic: Lancet

By Rajiv Shah*   One of the world’s most prestigious health journals, brought out from England, has sharply criticised the Narendra Modi government for being “wholly untrustworthy on Covid-19 health data”, stating, the “official government figures place deaths at more than 530 000, while WHO excess death estimates for 2020 and 2021 are near 4·7 million.”

Undermining law, breastfeeding? Businesses 'using' celebrities to promote baby food

By Rajiv Shah*  A report prepared by the top child welfare NGO, Breastfeeding Promotion Network of India (BPNI), has identified as many as 15 offenders allegedly violating the Indian baby food law, the Infant Milk Substitutes Feeding Bottles, and Infant Foods (Regulation of Production, Supply and Distribution) Act 1992, and Amendment Act 2003 (IMS Act), stating, compliance with the law “seems to be dwindling by the day.”

Delhi demolitions for G-20 summit: Whither sabka saath, sabka vikas?, asks NAPM

By Our Representative  Well-known civil rights network, National Alliance of People's Movements (NAPM), even as expressing solidarity with “thousands of traumatized residents of Tughlakabad and some other bastis in New Delhi whose homes have been demolished and whose lives have been ravaged both prior to as well as in the lead-up to the G-20 Summit”, has said this is in utter disregard to “their minimum well-being and gross violation of their rights.”

'Misleading' Lancet estimates on zero food intake in infants, young children of India

By Srinivas Goli, Shalem Balla, Harchand Ram*  India is one of the world's hotspots for undernourished children, both in terms of prevalence and absolute numbers. Successive rounds of National Family Health Surveys ( NFHS ) have revealed that the progress observed since the early 1990s is far from what is expected when compared to the country's economic growth.

India joining US sponsored trade pillar to hurt Indian farmers, 'promote' GM seeds, food

Counterview Desk  As many as 32 civil society organisations (CSOs), in a letter to Union Commerce Minister Piyush Goyal on the Indo-Pacific Economic Framework (IPEF) and India joining the trade pillar, have said that its provisions will allow the US to ensure a more favourable regulatory regime “for enhancing its exports of genetically modified (GM) seeds and GM food”, underlining, it will “significantly hurt the livelihoods of Indian farmers.”