Jammu and Kashmir: Deletion of Article 35-A will Threaten J&K’s Distinct Identity

M Y Tarigami

SINCE Article 35-A of the Indian Constitution which confers some special privileges on the permanent residents of Jammu and Kashmir has become a very hot topic, we need to go back in history and trace the genesis of the present conspiracy which aims at the deletion of this provision. It is essential to note that the accession of J&K to the Indian Union was made under special circumstances and was distinct in comparison to other states. The ruler of the state, Maharaja Hari Singh acceded to India by signing the instrument of accession, which was accepted by the governor general of India on October 27, 1947.  The Maharaja surrendered only three subjects ie, external affairs, defense and communication to the Indian Union while on all other subjects, the ruler of the state continued his sovereignty in and over the state by virtue of para(8) of the instrument of accession. The terms of the instrument of accession were accepted and adopted by the Constituent Assembly by incorporating these terms in the Constitution of India through Article 370. Against this background, when the constitution of India came into force on January 26, 1950, only two provisions of the constitution ie, Article 1 and Article 370 applied in relation to the state of Jammu and Kashmir. The president of India was however, by virtue of sub-clause (d) of clause (1) of Article 370 empowered to apply some other provisions of constitution of India to the state of Jammu and Kashmir with the concurrence of the state government.

While the constitution of India was adopted in 1950, the Constituent Assembly of Jammu and Kashmir was yet to finalise the state constitution. As such, the relationship between Indian Union and state of Jammu and Kashmir was not defined. In order to define and delineate the constitutional relationship of J&K with the union of India, an agreement was arrived at between the representatives of the state and the union in the year 1952 which is commonly known as the Delhi Agreement. In this agreement, it was agreed that the “state subject” laws framed by Maharaja Pratap Singh and his successor Maharaja Hari Singh in 1927 and 1932 will continue. The said agreement was discussed and approved by the state constituent assembly in August 1952. It was also approved by the council of states (Rajya Sabha) in August 1952. To formalise and further safeguard the “state subject” law and not to make it constitutionally vulnerable, the president of India  issued an order on May 14, 1954 which, among other things added Article 35-A to the constitution in order to implement the Delhi Agreement of July 1952. This Article is in fact an extension of Article 370. It is the result of a consistent process and is not an isolated law enacted without giving full thought to its implications. Complete constitutional process was followed before adding this Article to the constitution of India.

Addition of Article 35-A to the constitution of India cannot be construed to mean (as the petitioners who have challenged it in the Supreme Court plead) that a new provision has been added or inserted in the constitution without the assent of the parliament. Article 35-A is simply a saving clause which protects certain existing laws in force, in the state of Jammu and Kashmir with respect to the definition of permanent residents, conferring on them some special rights and privileges in respect of employment under the state government, acquisition of immovable property in the state, settlement in the state or right of scholarships and such other forms of aid as the state government may provide. In other words, this Article has carved out an exception to Articles 14,15,16 and 19 of the constitution of India, as some of these Articles deal with the fundamental rights and contrast with the “state subject” law which in effect “deprives”  the non-state subjects from the fundamental rights to acquire land, seek employment and settle down in the territories of Jammu and Kashmir.

It is baseless and completely wrong proposition that Article 35-A is legally invalid. It has in fact approval of both the Constituent Assembly and Union Parliament and is the result of an agreed position on the constitutional relationship between the Indian Union and the state of Jammu and Kashmir. In a way it is the spirit of the Delhi Agreement. As already indicated the “state subject” law was finalised in 1932 after a vehement demand, made in particular by the Dogras of Jammu and Kashmiri Pandits to reserve all  the state government jobs for the residents of the state and deny the same to people from outside. Maharajas used to employ a number of educated persons from the neighbouring Punjab and some other states to run the state administration. With the growth of educated persons in the state, the locals felt that their right to jobs was usurped by the non-state subjects.

CONSPIRACY TO EFFACE ARTICLE 370 AND ARTICLE 35-A

At the time of J&K’s accession to the Indian union, soon after partition, the narrow minded communalists and majoritarians could not digest the autonomy and the special status granted to the princely state of J&K. To sabotage the autonomous status, RSS and its associate organisations launched a planned and militant agitation in Jammu region against the special position which protected the distinct identity of the state. In early fifties, RSS and its avatars, Bhartiya Jana Sangh and Hindu Mahasabha, under the garb of Jammu Praja Parishad, raised the slogan of – “Ek Pradhan, Ek Vidhan, Ek Nishan” (one sovereign head, one constitution and one flag).The agitation was patronised by the ultra Hindu nationalist, Shyama Prasad Mukherjee. There after the efforts of the RSS and its political arms, including Jana Sangh and the present day BJP was to erode and abrogate Article 370 and the special status of J&K. It remains on their agenda and is being exploited for political and electoral gains.

It is a part of this process that a Delhi based NGO, (We the Citizens), at the behest of RSS-BJP combine approached the Supreme Court of India in 2014 and pleaded for declaring Article 35-A as unconstitutional. In the writ petition the petitioners raised political issues more vigorously than legal or constitutional issues. The legal and constitutional issues raised by the petitioners in relation to the inclusion of Article 35-A in the constitution of India have been long before settled by the Supreme Court in various writ petitions notably, Puran Lal Lakhan Pal Vs President of India (1962 (1) SCR 688) and Sampat Prakash Vs State of J&K, AIR 1970 SC 1119.

The well known legal expert and columnist, AG Noorani says Article 35-A is beyond challenge, because such amendments have been made under Article 371-A in regard to certain special rights conferred on Nagaland, Mizoram, Assam, Manipur, Sikkim, Arunachal Pradesh and Goa. It is a fact that these amendments were generally enacted under Article 368 by the parliament in exercise of its amending power while Article 35-A was added to the constitution under Article 370, which again is a part of the constitution of India. As such, Article 35-A flows inevitably from Article 370 of the Indian constitution. The constitution of Jammu and Kashmir enacted in 1956 has also put its seal on the relevant notification vide Clause 13. Those who challenge Article 35-A, conveniently forget that, since it was only Article 1 and Article 370 which were applicable to J&K at the time (1954), the presidential order regarding addition of Article 35-A was made. As such, Article 368 could not have been resorted to, for the addition of Article 35-A. It may not be out of place to assert that ‘Kashmir would never had acceded to India’ if it knew that decades later communal minded and chauvinist forces would like to wipe out the notification (Preservation of J&K special status and privileges thereof) which Article 35-A safeguards.

IMPLICATIONS OF EFFACING ARTICLE 35-A

If Article 35-A is deleted from the Constitution of India, the accession of the state with the Union of India is liable to be jeopardiSed.  Article 35-A is not the only provision in the constitution of India in its application to the state of Jammu and Kashmir, which has been added by the president by a presidential order issued under Article 370 (1). There are various other provisions which have been added by the presidential orders from time to time to the state of Jammu and Kashmir in modified form, whereby some of the provisions have altogether been substituted. In case the power of the president to add/insert any provision in the constitution of India in its application to the state of Jammu and Kashmir is challenged, the entire constitutional relationship between the state and union of India would get affected. In addition, the ongoing turmoil, uncertainty and alienation will grow to proportions which would be quite unmanageable. The special status and Article 370 will be reduced to a corpse in case Article 35-A is erased. The state will be thrown open to non-state subjects for acquisition of land and settlement. This will add to the sense of insecurity and the feeling regarding the loss of distinct identity. Consequently it will not only be very harmful to the state but to the entire country. Disruptive elements will get encouraged and return of peace and normalcy will be a distant dream.

At this juncture all the broad minded and democratic forces including political parties, intelligentsia and the civil society at large, should put their heads together, discuss the situation intensively and launch a concerted  struggle against this mischief. While doing so, caution has to be exercised so that the forces who profess hyper nationalism for political interests should not divide people of the state on regional and communal lines. The people of Jammu and Ladakh have to be convinced that deletion of Article 35-A will prove disastrous for the entire state and will have very unforeseen dangerous consequences. In this regard, doubts and reservations of various sections of the society have to be addressed and removed. Needless to say that the secular and democratic sections have to be taken on board as the complete alienation of Kashmiris will be a big challenge to the peace process in the region.

To conclude, it may be stressed that the conspiracy to remove Article 35-A is essentially the agenda of communal, divisive and anti-democratic forces who want to thrive on uncertainty, hatred and turmoil. Meanwhile the state government should take the case very seriously, contest it in the Supreme Court vigorously and should not depend on hollow assurances by the centre. If the government of India is sincere in defending the special status of the state, as claimed by the state chief minister, it should then file an affidavit in the Supreme Court and oppose the writ petition regarding Article 35-A. It is a matter of anguish that the present ruling party at the centre who should have adopted a flexible and positive approach in dealing with the Kashmir problem has opted for an obscurantist and rigid approach and is trying to deny even the status quo. Is this the “final solution” of the Kashmir issue as often claimed by the BJP leadership?

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