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

The silencing of conscience: Ideological attacks on India’s judiciary and free thought

By Sunil Kumar* “Volunteers will pick up sticks to remove every obstacle that comes in the way of Sanatan and saints’ work.” — RSS Chief Mohan Bhagwat (November 6, 2024, Chitrakoot) Eleven months later, on October 6, 2025, a man who threw a shoe inside the Supreme Court shouted, “India will not tolerate insults to Sanatan.” This incident was not an isolated act but a continuation of a pattern seen over the past decade—attacks on intellectuals, writers, activists, and journalists, sometimes in the name of institutions, sometimes by individual actors or organizations.

N-power plant at Mithi Virdi: CRZ nod is arbitrary, without jurisdiction

By Krishnakant* A case-appeal has been filed against the order of the Ministry of Environment, Forest and Climate Change (MoEF&CC) and others granting CRZ clearance for establishment of intake and outfall facility for proposed 6000 MWe Nuclear Power Plant at Mithi Virdi, District Bhavnagar, Gujarat by Nuclear Power Corporation of India Limited (NPCIL) vide order in F 11-23 /2014-IA- III dated March 3, 2015. The case-appeal in the National Green Tribunal at Western Bench at Pune is filed by Shaktisinh Gohil, Sarpanch of Jasapara; Hajabhai Dihora of Mithi Virdi; Jagrutiben Gohil of Jasapara; Krishnakant and Rohit Prajapati activist of the Paryavaran Suraksha Samiti. The National Green Tribunal (NGT) has issued a notice to the MoEF&CC, Gujarat Pollution Control Board, Gujarat Coastal Zone Management Authority, Atomic Energy Regulatory Board and Nuclear Power Corporation of India Limited (NPCIL) and case is kept for hearing on August 20, 2015. Appeal No. 23 of 2015 (WZ) is filed, a...

History, culture and literature of Fatehpur, UP, from where Maulana Hasrat Mohani hailed

By Vidya Bhushan Rawat* Maulana Hasrat Mohani was a member of the Constituent Assembly and an extremely important leader of our freedom movement. Born in Unnao district of Uttar Pradesh, Hasrat Mohani's relationship with nearby district of Fatehpur is interesting and not explored much by biographers and historians. Dr Mohammad Ismail Azad Fatehpuri has written a book on Maulana Hasrat Mohani and Fatehpur. The book is in Urdu. He has just come out with another important book, 'Hindi kee Pratham Rachna: Chandayan' authored by Mulla Daud Dalmai.' During my recent visit to Fatehpur town, I had an opportunity to meet Dr Mohammad Ismail Azad Fatehpuri and recorded a conversation with him on issues of history, culture and literature of Fatehpur. Sharing this conversation here with you. Kindly click this link. --- *Human rights defender. Facebook https://www.facebook.com/vbrawat , X @freetohumanity, Skype @vbrawat

Celebrating 125 yr old legacy of healthcare work of missionaries

Vilas Shende, director, Mure Memorial Hospital By Moin Qazi* Central India has been one of the most fertile belts for several unique experiments undertaken by missionaries in the field of education and healthcare. The result is a network of several well-known schools, colleges and hospitals that have woven themselves into the social landscape of the region. They have also become a byword for quality and affordable services delivered to all sections of the society. These institutions are characterised by committed and compassionate staff driven by the selfless pursuit of improving the well-being of society. This is the reason why the region has nursed and nurtured so many eminent people who occupy high positions in varied fields across the country as well as beyond. One of the fruits of this legacy is a more than century old iconic hospital that nestles in the heart of Nagpur city. Named as Mure Memorial Hospital after a British warrior who lost his life in a war while defending his cou...

Citizens’ group to recall Justice Chagla’s alarm as India faces ‘undeclared' Emergency

By A Representative In a move likely to raise eyebrows among the powers-that-be, a voluntary organisation founded during the “dark days” of the Indira Gandhi -imposed Emergency has announced that it will hold a public conference in Ahmedabad to highlight what its office-bearers call today’s “undeclared Emergency.”

New RTI draft rules inspired by citizen-unfriendly, overtly bureaucratic approach

By Venkatesh Nayak* The Department of Personnel and Training , Government of India has invited comments on a new set of Draft Rules (available in English only) to implement The Right to Information Act, 2005 . The RTI Rules were last amended in 2012 after a long period of consultation with various stakeholders. The Government’s move to put the draft RTI Rules out for people’s comments and suggestions for change is a welcome continuation of the tradition of public consultation. Positive aspects of the Draft RTI Rules While 60-65% of the Draft RTI Rules repeat the content of the 2012 RTI Rules, some new aspects deserve appreciation as they clarify the manner of implementation of key provisions of the RTI Act. These are: Provisions for dealing with non-compliance of the orders and directives of the Central Information Commission (CIC) by public authorities- this was missing in the 2012 RTI Rules. Non-compliance is increasingly becoming a major problem- two of my non-compliance cases are...

Epic war against caste system is constitutional responsibility of elected government

Edited by well-known Gujarat Dalit rights leader Martin Macwan, the book, “Bhed-Bharat: An Account of Injustice and Atrocities on Dalits and Adivasis (2014-18)” (available in English and Gujarati*) is a selection of news articles on Dalits and Adivasis (2014-2018) published by Dalit Shakti Prakashan, Ahmedabad. Preface to the book, in which Macwan seeks to answer key questions on why the book is needed today: *** The thought of compiling a book on atrocities on Dalits and thus present an overall Indian picture had occurred to me a long time ago. Absence of such a comprehensive picture is a major reason for a weak social and political consciousness among Dalits as well as non-Dalits. But gradually the idea took a different form. I found that lay readers don’t understand numbers and don’t like to read well-researched articles. The best way to reach out to them was storytelling. As I started writing in Gujarati and sharing the idea of the book with my friends, it occurred to me that while...

Urgent need to study cause of large number of natural deaths in Gulf countries

By Venkatesh Nayak* According to data tabled in Parliament in April 2018, there are 87.76 lakh (8.77 million) Indians in six Gulf countries, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates (UAE). While replying to an Unstarred Question (#6091) raised in the Lok Sabha, the Union Minister of State for External Affairs said, during the first half of this financial year alone (between April-September 2018), blue-collared Indian workers in these countries had remitted USD 33.47 Billion back home. Not much is known about the human cost of such earnings which swell up the country’s forex reserves quietly. My recent RTI intervention and research of proceedings in Parliament has revealed that between 2012 and mid-2018 more than 24,570 Indian Workers died in these Gulf countries. This works out to an average of more than 10 deaths per day. For every US$ 1 Billion they remitted to India during the same period there were at least 117 deaths of Indian Workers in Gulf ...

'Violation of Apex Court order': Delhi authorities blamed for dog-bite incidents at JLN Stadium

By A Representative People for Animals (PFA), led by Ms. Ambika Shukla, has held the Municipal Corporation of Delhi (MCD) responsible for the recent dog-bite incidents at Jawaharlal Nehru Stadium, accusing it of violating Supreme Court directions regarding community dogs. The organisation’s on-ground fact-finding mission met stadium authorities and the two affected coaches to verify details surrounding the incidents, both of which occurred on October 3.

Counterview

Search This Blog