Skip to main content

Tinkering with Article 35A intolerable, will "undermine" Kashmir's identity, character

By Syed Mujtaba Hussain*
The Supreme Court of India is currently hearing petitions under Articles 370 and 35A filed by an NGO over the special status of the state of Jammu & Kashmir (J&K). The Kashmiris have rejected the move terming it ill-intentioned and BJP quest for change of demography.
To recall, according to Lord Mountbatten’s plan for partition of subcontinent (June 3, 1947), around 500 princely states acceded to India. But on October 27, 1947 the Indian army landed in the Himalayan valley of Kashmir, leading to what many consider as leading to one of the world's deadliest disputes.
The Indian forces entered Kashmir after Maharaja Hari Singh, faced with an internal revolt as well external invasion, requesting assistance from India's armed forces. Pakistan's Pashtun tribal militias had crossed the border of the state, and the Maharaja had already lost control of the western districts of his kingdom.
The Maharaja agreed to hand over control of his defence, communications, and foreign affairs departments to the Indian government. Though both sides agreed the accession signed by Maharaja Hari Singh would be ratified by a referendum, which was to be held after hostilities ceased, that vote was never held even after 70 years, making Kashmir an unsolved legacy of partition.

Articles 370 and 35A of Indian Constitution

Indian political leadership, instead of attending to United Nations resolutions over Kashmir, tried to pacify Kashmiris through different legal deceptions. In 1949, Jawaharlal Nehru struck a deal with Sheikh Mohammed Abdullah, an influential political figure in Kashmir, and inserted Article 370 in the Indian constitution.
The article defines Kashmir’s political relationship with New Delhi by granting special status to J&K. It restricts New Delhi’s legislative jurisdiction only to defence, foreign affairs, and communications.
In 1954, through a presidential order, Article 35A was passed under Article 370 (1) (d) of the Indian constitution. The Article accords special rights and privileges of the permanent residents of Kashmir in government jobs, land acquisition and other public projects.
On September 14, 2018, Indian Supreme Court adjourned the hearing on petitions challenging the validity of Article 35A of the constitution to January next year in view of the ongoing law-and-order situation in the Kashmir Valley.
The Supreme Court’s hearing on the annulment of Article 35A has once again created fear in the valley. Former J&K Chief Minister and Peoples Democratic Party (PDP) chief and National Conference, two regional mainstream parties, did not contested the planned polls in Kashmir.
Separatist leaders, trade unions, religious organisations etc 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”.
Article 370 and Article 35A have been a contentious issue ever since the state of J&K was annexed to the Republic of India. India has avoided resolution of Kashmir through UN resolutions and have been scheming many political and legal strategies to portray settlement of the issue. Judicial activism is one of the key features of South Asia since 1980.
The judiciaries in Pakistan and India, on numerous occasions, have turned down overturned controversial policies of their respective governments in the greater public interests and attempted to deliver justice to the weaker sections of society.
Syed Mujtaba Hussain
Tinkering with the Article 35A, 370 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, Centre has never really given Kashmir the promised ‘right’. What Congress did behind the curtain BJP is doing it openly.
It is time for the Supreme Court of India to decide the issue on merit. The Apex court may decide not to attend to the petitions that go against UN resolutions, rather bound its government to sincerely settle the fate of Kashmiris being humiliated on a daily basis. Let the petition in the Supreme Court be the beacon of hope and peace in the region.
---
*Human rights activist, observer of socio-political contexts. Contact: jaan.aalam@gmail.com

Comments

TRENDING

Noam Chomsky, top scholars ask NRIs to take stand on human rights violations in India

Counterview Desk
Renowned world scholars, including Noam Chomsky, James Petras, Angela Davis, Fredric Jameson, Bruno Latour, Ilan Pappe, Judith Butler, among others, have issued a statement castigating the Narendra Modi government for allegedly creating an environment of fear through arrests, intimidation and violence.

Actionable programme for 2019 polls amidst lynch mobs, caste violence, hate mongering

Counterview Desk
Reclaiming the Republic, a civil rights network, has released a document prepared under the chairmanship of Justice AP Shah (retired) -- and backed, among others, by Supreme Court advocate Prashant Bhushan, bureaucrat-turned-human rights activist Harsh Mander, economist Prabhat Patnaik, Right to transparency activist Anjali Bhardwaj and social scientist Yogendra Yadav  (click HERE for full list) -- with the "aim" of putting forth policy and legislative reforms needed to “protect” and “strengthen” the Constitutional safeguards for India’s democratic polity.

Call to support IIM-Bangalore professor, censured for seeking action against Uniliver

Counterview Desk
Sections of the Indian Institute of Managements (IIMs) across India have strongly reacted to the decision to censure Dr Deepak Malghan, a faulty at IIM-Bangalore. Prabhir Vishnu Poruthiyil, who is faculty at IIM-Tiruchirapalli, has sought wider solidarity with Dr Malghan, saying, "The administration has censured Deepak for merely suggesting a meaningful action against Hindustan Unilever for their abysmal environmental record" by “disinviting” it for campus placement.

India under Modi "promoted" crony business, protected financial fraudsters, fueled bigotry

By Sandeep* and Rahul Pandey**
Narendra Modi's ascension to power was accompanied with jubilation and expectation. His supporters were expecting an end to era of corruption and initiation of good governance which was described as Achche Din. His party's adherence to idea of nationalism was believed to make India a vibrant country and guide India to be a world leader. He gave the slogan of 'Sabka Saath, Sabka Vikas' conveying that his government was for all.
Corruption The government system is infested with corruption. A minimum of 10% is siphoned off from government schemes and projects, some of which goes back to political party in power and remaining is pocketed by various administrative, executive and political functionaries. This corruption continues and has increased. Now an additional Rashtriya Swayamsewak Sangh (RSS) person working as Official on Special Duty or some equivalent position in every government department also has a share in this booty.
The Narendra M…

Inviting Rajapaksa to India "insult" to 1,40,000 Tamils killed by Sri Lankan army

Counterview Desk
In the context of Sri Lankan opposition leader Mahinda Rajapaksa being invited in India, about 75 human rights activists*, claiming to be concerned about rights violations during the civil war in Sri Lanka, especially in 2009, have joined together to express their dissent through a statement.

Post-advisory, Govt of India appears reluctant to ban e-cigarettes, "harmful" to kids

By Rajiv Shah
Is the Government of India dilly-dallying over the issue of banning e-cigarettes, which have been declared by anti-tobacco activists across the world as providing “an entryway to nicotine addiction”, especially among the kids? It would seem so, if the latest developments are any guide.

A Godse legacy? BJP rulers have "refrained" from calling Gandhi Father of the Nation

By Dr Hari Desai*
What an agony! On one hand, the entire India is celebrating the 150th birth anniversary of Mahatma Gandhi under the leadership of Prime Minister Narendra Modi, but on the other side, so-called Hindu Mahasabha members have been found mock-enacting the killing of the Mahatma and celebrating the murder by distributing sweets!

No aadhaar, no ration? Hard blow by Gujarat govt on poor and marginalized

By Pankti Jog*
Only those who have aadhaar registration and linked it with ration card will get ration from a Public Distribution System (PDS) shop. This decision of the Gujarat government has hit very badly thousands of poor and marginalized communities of Gujarat, especially during the drought year.

World Bank needs a new perspective on development, not just a new president

By Maju Varghese*
The resignation of the World Bank President Jim Yong Kim was an unexpected development given the fact that he had three more years to complete his tenure. Resignations at such a high level after bidding for a second term is unusual which prompts people to think what would have led to the act itself.

Not just Indian women engineers, men too face sexual harassment at workplace: US study

By Rajiv Shah
A recent research, carried out jointly by two US-based non-profit organizations, Society of Women Engineers (SWE) and Center for WorkLife Law (WLL), based at the University of California, Hastings College of the Law, has found that 45% of women engineers as against 28% of men engineers complained that it was perceived as “inappropriate when women argued at work, even when it was work-related.”