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

World Bank clarifies: Its 26th rank to India not for universal access to power but for ease of doing business

By Our Representative
In a major embarrassment to the Government of India, the World Bank has reportedly clarified that it has not ranked India 26th out of 130 countries for providing power to its population. The top international banker’s clarification comes following Union Power Minister Piyush Goyal’s claim that India has “improved to 26 position from 99” in access to electricity in just one year.

"Misleading" satellite images being shared on Balakot surgical strike on Jaish camp

By Dr Vinay Kate*
With every passing day more questions are being raised about the surgical strike India did in Balakot as a response to Pulwama attacks. So far the Indian media has claimed mass casulaty of 300+ terrorists of Jaish-e-Mohammad in this surgical strike, but there is hardly any report from foreign media about the same.

Extreme repression, corporate loot, cultural genocide "characterise" India's tribal belt

Counterview Desk
As Lok Sabha polls approach, there is considerable ferment in one section of the population -- India's Adivasis, forming about 8.6 per cent of India's population. Things became particularly critical following the February 14, 2019 Supreme Court order, allegedly seeking to evict lakhs of tribals from their forest lands.

Industry in India "barely growing", export growth 0%, whither moral anchors?

Counterview Desk
In a sharp critique of the Modi government, the Indian Institute of Management-Ahmedabad (IIM-A), one of world renowned economist Prof Kaushik Basu, who is Professor of Economics and Carl Marks Professor of International Studies at Cornell University, has told students at the IIM-A’s 54th Annual Convocation on March 16, 2019 that they have a “special responsibility” on their shoulders, “the responsibility to reject narrow sectarianism, uphold scientific thinking, openness to new ideas, and freedom of speech.”

Congress would win just 9 of 26 Lok Sabha seats: Gujarat Assembly segment-wise analysis

By Rajiv Shah
Even as the Congress plans its first working committee meet in Gujarat on February 28 after an almost 58 year gap, there is reason to wonder what is in store for India’s grand old party in a state which has been long been a BJP bastion – in fact ever since mid-1990s. Ahead of the then assembly polls in late 2012, talking with me, a senior Gujarat Congress leader, currently Rajya Sabha MP, frankly said he saw no reason why Congress would win.

Gujarat model? Industrial effluents "invade" borewells, discharge coloured water in farms

By Rajiv Shah
In a major embarrassment for Gujarat model, of the 21 samples taken by officials of the state government's environmental watchdog Gujarat Pollution Control Board (GPCB) in two villages of Vadodara district and analyzed by its laboratory in Gandhinagar, the state capital, to find out pollution level in groundwater, 16 were assessed as highly contaminated – these were, in fact, found to be discharging reddish, brownish, reddish, or yellowish water.

Financial inclusion? Not micro-loans; India's poor "need" investment in health, education

By Moin Qazi*
India has grown into a global powerhouse. Its economy is soaring but the picture on the ground is still quite arid. The green shoots that you see are only a patch of its landscape. Most Indians are hapless victims of inequity. India is one country where intense poverty abounds in the shadow of immense wealth.

"Pro-corporate" Supreme Court order on FRA would further marginalize Adivasis

By VS Roy David, JP Raju*
For millions of Adivasis and other traditional forest dwellers February 13, 2019 will go down in history as the day of apocalypse. This is like the proverbial Black Friday where millions of most marginalized people of India were ordered by malicious anti-people draconian Supreme Court order depriving them the life and livelihood by evicting them from their habitats.

India, Pakistan told to eliminate nuclear weapons: N-war "would kill" 2 billion

Counterview Desk
The International Physicians for the Prevention of Nuclear War (IPPNW), a non-partisan federation of national medical organizations in 64 countries, representing tens of thousands of doctors, medical students, other health workers, and concerned citizens, claiming to share the common goal of creating a more peaceful and secure world freed from the threat of nuclear annihilation, has warned that “an unprecedented global catastrophe” awaits the globe against the backdrop of warmongering in India and Pakistan.

Women, business, law: India scores worst among all BRICS, several African nations

By Rajiv Shah
A new World Bank report ranks India 125th in its Women, Business and the Law (WBL) index among 187 economies it seeks to analyse across the globe. The report's main aim claims to be to "gain new insight into how women’s employment and entrepreneurship choices are affected by legal gender discrimination. On a scale of 100, India's score is 71.25, worse than the global average of 74.71.

Counterview

Search This Blog