Indian attempts to dilute Article 35A


Dr Muhammad Khan
AFTER its failure to attain a majority (44 plus seats) in IOK Legislative Assembly in 2014 election, BJP manipulated an alliance with People’s Democratic Party (PDP) to form the state government. Practically, it is BJP ruling the IOK with a rubber stamp Chief Minister from PDP. The agenda of BJP Government in New Delhi has been to do away with the Article 370 of Indian Constitution, which gives special status to IOK. However, owing to non-availability of requisite numbers of MLAs to support a constitutional amendment to repeal Article 370, BJP has resorted to dilute another constitutional provision with respect to IOK. This constitutional provision is 35A of the Indian constitution. This article supplements Article 370 of the Indian Constitution. Article 35A allows the Jammu and Kashmir legislature ‘to define the list of ‘permanent residents’ of the state, who are eligible to vote, work for the state government and own land.’
After having deliberations on this article, the BJP led Indian Government has adopted an indirect strategy through a New Delhi based NGO to approach Indian Supreme Court for the dilution of this article. Prior to its dilution, New Delhi has initiated a debate among the masses, academia, think-tanks and official circle for the dilution or otherwise of Article 35 A. On its part, Indian Supreme Court has constituted a three-judge Bench, to complete a hearing over the matter in six weeks. This Bench of Indian SC has been constituted on the request of Indian Attorney General, which clearly speaks of the motives of Indian Government. It is to be noted that, repealing Article 370 and doing away with the special status of IOK was an election manifesto of Modi’s BJP and is being implemented through a gradual process.
There has been a serious reaction from PDP and National Conference, the political parties of IOK over this Indian manipulation. Omar Abdullah, the former Chief Minister and leader of National Conference said, “If there is debate on (the legality) of the Article, you will have to debate the accession itself,” because the state’s accession to the Indian Union and its special status are “two sides of the same coin.” Indeed, “Like Article 370, Article 35A was negotiated between the princely state of J&K and the government of India and it is the bedrock of accession.” In fact, Article 370 provides the only linkage between India and IOK. If Article 370 is repealed, IOK will be constitutionally free of Indian yoke. On her part, the incumbent Chief Minister of IOK, Ms. Mehbooba Mufti, has criticized the efforts for diluting Article 35A and said, “Who is doing it? Why are they doing it? (challenging the Article 35A). Let me tell you that my party and other parties who carry the national flag there (in Jammu and Kashmir) despite all risks… I have no doubt in saying that there will be no one to hold it (if the article is diluted).”
New Delhi, particularly the ruling BJP and its militant wing, RSS feel that, special status of IOK is, “not a sacred cow that cannot be touched”. In their opinion, ‘Both Articles 35A and 370 (granting special status to Jammu and Kashmir) were meant to be temporary.’ This speaks of an Indian mindset, which can be linked and interpreted from the wording of first Indian Law Minister, Dr. Ambedkar, the founder of Indian constitution, who unequivocally opposed the incorporation of Article 370 in Indian Constitution. Article 370 was a secret deal between Sheikh Abdullah, and first Indian Premier, Nehru and 35A was incorporated later, again to satisfy the Kashmiris. In response to Article 370, Dr Ambedkar, said to Sheikh Abdullah in 1949, “You wish India should protect your borders, she should build roads in your area, she should supply you food grains, and Kashmir should get equal status as India. But Government of India should have only limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal, would be a treacherous thing against the interests of India and I, as the Law Minister of India, will never do it.” Dr Ambedkar boycotted the Indian Assembly session at the time of passage of Article 370.
There is a basic contradiction between what India proclaims and what Indian Constitution merits. Since mid-1950s, successive Indian leadership has been claiming IOK, as an integral part of Indian Union, despite it is being ruled through Article 370 of its Constitution. This (Article 370) is drafted in part XXI of the Indian Constitution and clearly relates to the “Temporary, Transitional and Special Provisions” concerning Kashmir. Indian integral states and provinces are not being ruled through this article, which clearly states that, Kashmir is not part of India and calling it as its integral part is part of ill motive of successive Indian governments. Though a fake document, even then, the so-called Instrument of Accession also specified only three subjects for accession: foreign affairs, defence and communications. Furthermore, it provides a number of safeguards to the state’s sovereignty. Clause 7 states, “Nothing in this instrument shall be deemed to commit me in any way to acceptance of any future constitution of India …” And “after the restoration of law and order in the State of Jammu and Kashmir and the expulsion of the raiders, its future will be decided in accordance with the wishes of the people of the State.”
Indian claim over the state of Jammu and Kashmir is completely illegitimate and unsubstantiated. India is negating its own constitution and commitment with Kashmiris, UN, Pakistan and world community. Indian leadership should realize this and adopt a realistic approach for the solution of this outstanding issue, rather endeavouring to dilute Article 35A and abrogate Article 370 of its constitution. Kashmiris want freedom from India, therefore, any move like dilution of Article 35A and doing away with the special status of IOK would give further impetus to the freedom movement of Kashmiris in IOK.
— The writer, Professor of Politics and International Relations, is based in Islamabad.
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