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Skating on thin ice in Kashmir

Tinkering with Article 35A of the Indian Constitution can rip open a Pandora’s Box and redefine the state’s special but delicate relationship with New Delhi

Gulf News

Storm clouds are, once again, gathering over the scenic valley of Kashmir. The latest controversy revolves around the special privilege, accorded to the state of Jammu and Kashmir (J&K) by the Constitution of India. The Bharatiya Janata Party (BJP)-led federal government has raised questions over the privilege. While many query the wisdom of stirring up the sensitive issue, others have protested the timing of the move. With the situation in the valley remaining fraught after months of unrest, seeking the removal of Article 35A from the constitution sounds both impetuous and reckless. It can only inflame passions in the valley.

The matter is currently in the Supreme Court, which is expected to decide on the case shortly. A petition challenging the validity of Article 35A was filed by an NGO, which is purportedly close to the Rashtriya Swayamsevak Sangh (RSS), the ideological fount of the ruling BJP. Contending that Article 35A (extended to the state through a 1954 Presidential Order) was invalid, the organisation claims that the Indian Constitution can be amended only by the parliament as per procedure. Based on this technicality, it has asked the court to write down the law.

It is not as black and white as it appears, though.

Kashmir’s ascension to India in 1947 took place under extraordinary circumstances. India’s post-independence leadership was aware of this and made special provisions in the country’s constitution to safeguard the state’s special status. Article 370 was included to give Jammu and Kashmir complete control over its destiny (except in matters of defence, communication and diplomacy, where Indian government had control). It is the only Indian state that has its own constitution and flag. As per the original version of the Article, fundamental rights, duties and directive principles of the state policy, as enshrined in the Indian Constitution, didn’t apply to J&K.

Historical context

Article 35A of the Indian Constitution further allows the state to prefer its residents for employment under the state government and acquisition of immovable property in the state. This protection bars outsiders from settling or acquiring property in the state. The article was specifically devised to grant protection to state-subject laws that had already been defined under the rule of Maharaja Hari Singh (the last king of the princely state of Jammu and Kashmir) and notified in 1927 and 1932. Although it has rankled the right wing in India all along, this is the first time that the Indian government has officially refused to take a definite position on the matter, leaving the outcome of the case wide open in the country’s apex court.

Given the sensitivity of the issue, the political leadership in Kashmir has joined hands in opposing the abrogation of the law. Recently, Chief Minister Mehbooba Mufti warned against tinkering with Article 35A, saying if this happens, there would be no one in Kashmir to carry the Indian flag. “Why are they doing it? Let me tell you that my party and other parties who carry the Indian flag (in J&K) despite all risks ... I have no doubt in saying that there will be no one to hold it [Indian flag] [if Article 35A is scrapped],” she was quoted as saying by the PTI. Farooq Abdullah, the patron of the National Conference, the principal opposition party in the state, and a former chief minister, has echoed Mehbooba’s sentiment. Omar Abdullah, former chief minister, went a step further and told the press: “They just need to have Article 35A struck down and that is what they are doing. It is a move to change the demography of the state and it will happen when people from outside will buy land in the state and then it will have an impact on the larger question of the Kashmir issue.” The apprehension that the government in Delhi has given its consent to revoking the law is not without a basis. There is a historical context to it.

Erosion of Article 370

Although Article 370 originally granted several advantages and a degree of autonomy to Kashmir, subsequent Indian governments gradually eroded those entitlements. From 1950 onwards, 94 out of the 97 entries in the Union List as well as 260 articles of the Indian Constitution were extended to J&K. This includes the jurisdiction of Supreme Court over the state. Most of the Union laws were subsequently made applicable to the state as a result of The Delhi Agreement, 1952. Interestingly, New Delhi had to issue a Presidential Order each time it extended provisions of the Indian Constitution to Kashmir. A Presidential Order was used to override provisions of the State Constitution for changing the titles of Sadr-e-Riyasat (President of the State) to governor, prime minister (of the state) to chief minister and extend the powers of the Election Commission of India to J&K.

Legal observers note that if the Supreme Court were to write the law down now, then all such Presidential Orders (which extended central laws to J&K from 1954 to 1975) would come under question. Therefore, the argument that Article 35A forms the core of Kashmir’s relationship with India cannot be dismissed outright. Historians such as Srinath Raghavan further explain the legal position in a recent comment piece in Hindustan Times. “The legality of Article 35A is being challenged on the grounds that it was not added to the constitution by a constitutional amendment under Article 368. This is a specious argument. For the article does not by itself confer any right on J&K state subjects. The Instrument of Accession signed by the Maharaja of Kashmir in October 1947 specified only three subjects for accession: Foreign affairs, defence and communications.”

Many see the latest move as a brash attempt by the government led by Indian Prime Minister Narendra Modi to settle the vexed Kashmir dispute by altering the state’s demography. Inherently opposed to any special status to Kashmir, which the BJP sees as a roadblock to its vision of Akhand Bharat (Greater India), the government realised that it may not be in a position to amend the constitution arbitrarily. Approaching the Supreme Court, through an RSS-affiliated NGO, appears to be a calculated step to change the law through the judicial process. It is no surprise then that the Modi government has taken an ambiguous position, calling for a “larger debate” on this “very sensitive” issue.

If Article 35A goes, the protection available under the Constitution of India to permanent residents of J&K will go. This may have a wide-ranging effect because the state laws related to permanent residency may no longer exist. There is a worry that such a step will open the floodgates that will badly impact the present status of J&K. There is no telling what the political fallout of such a step is going to be, but mass agitation and civil unrest cannot be ruled out. New Delhi must be careful not to mistake the lull before the storm in Kashmir. A misstep at this juncture may lead to unrest in the months ahead.

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