Kashmir and 35 A

Views from Srinagar

Saadut Hussain

I say with all respect to our Constitution that it just does not matter what your Constitution says; if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion…” (Selected works of Jawaharlal Nehru, Vol. 18, p. 418).
The clause 7 of the ‘Instrument of Accession’ read “nothing in the instrument shall be deemed to commit me in any way to the acceptance of any future constitution of India or fetter my discretion to enter into arrangement with the government under any such future constitution.” Article 370 (originally put as Article 306 A) was agreed upon by between teams led by Jawaharlal Nehru and Sheikh Abdullah after five months of discussions.
“The provisions of Article 1 (of Indian Constitution) and of this article shall apply in relation to that State” (1-c)
“The power of (Indian) Parliament to make laws for the said State shall be limited to those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India……” and “such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation…” (1 – b, i & ii).
Article 1 of the Indian constitution is applied on Jammu and Kashmir via Article 370 (1-c), J&K being mentioned along with other states of Union in the 1st Schedule as Article 1 (2). Hence abrogation of 370 would also mean cessation of application of Article 1 on Jammu & Kashmir, which in turn would open the doors of its secession from the Indian Union.
Inter-alia thus Article 370 cannot be ‘abrogated’ like this, because it would require the “concurrence” of State Constituent Assembly, which ceased to exist since 1957. Also Article 370 cannot be abrogated or amended by amending provisions of Article 368 of the Indian Constitution, since this article has a clear provision regarding J&K wherein ‘(no constitutional amendment) “shall have effect in relation to the State of Jammu and Kashmir” (unless applied via Article 370 by a Presidential Order)’.
Despite the talk of ‘special rights’, political freedom and democratic rights were eroded in Kashmir for decades. Balraj Puri claims that in 1953 he advised Jawaharlal Nehru to extend political freedom in Kashmir. Nehru replied “we have gambled at the international stage on Kashmir, we cannot afford to lose it. At the moment, we are there at the point of the bayonet. Till things improve, democracy and morality can wait.” (Kashmir Towards Insurgency, page 46).
Ex Governor of J&K B.K Nehru in ‘Nice Guys Finish Second’ (1997 pp. 614-5) writes somewhat on similar lines.
Even though Article 370 had been put in place as the only bridge linking India and Kashmir, ways and means were already being executed to erode this relationship. On 4th December 1964, Indian Home Minister G. L. Nanda is quoted to have said, “(370) would be used to serve as a tunnel in the wall to increase India’s grip on Kashmir”.
The 1952 ‘Delhi Agreement’ between New Delhi and J&K (Pandit Nehru and Sheikh Abdullah) contained 10 points, one of which was that the state legislature would have powers to regulate the rights and privileges of ‘Permanent Residents’ or ‘State Subjects’.
Article 35 A was extended to J&K through the ‘Constitutional Order (Application to Jammu and Kashmir)’ issued by President of India on May 14, 1954, specifically devised to grant protection to state subject laws, already defined and notified in 1927 and 1932 by the Government (Maharaja) of Jammu & Kashmir.
Article 35A, does not by itself confer any right on J&K state subjects but merely clarified the ‘special status of J&K’ and among other things, enabled the state legislature to regulate and extend the rights of permanent residents as already existed in the state of J&K pre-Independence.
The ‘J&K State Domicile Order’ has, in fact, a historical background in agitations of 1920’s, following a demand by Kashmir Pandits (who ruled the aristocracy then and feared a demographic change and loss of power to the influx of people from the then undivided Punjab), pushed for promulgation of a notification of 1927, defining the ‘State Domicile Laws’ and incorporating ‘State Subjects Act’ for J&K. Thus the extension of these ‘State Domicile Laws’ via 35 A, post ‘accession’ was aimed to continue such guarantees of ethnic and demographic security, for the local population.
Any tinkering with Article 35A, will thus not only have far-reaching political consequences in Kashmir but also raise many legal and constitutional questions upon the ‘Article 370 Bridge’ between New Delhi and J&K. For decades mainstream parties in Kashmir have survived on assurances of ‘strengthening of existing constitutional provisions of J&K’, most even promising to restore some form of ‘autonomy’ or ‘self-rule’. While achieving any of such devolution of powers to state may seem farfetched in the current situation, the debate in New Delhi seems to have shifted to erasing even the residual remains of 370 and 35 A. And for the mainstream parties in J&K (especially the Valley and the ‘Greater Kashmir’ areas) any change in this order, or erosion of the constitutional provision of J&K will further erase the already limited space they have been pushed to.
On ground in Kashmir such moves will strengthen the fears of ‘forced demographic change’, for diluting the ethnic composition of the state and will be seen as a direct and calculated attack on the Muslim identity of the Valley.
Technically tampering with 35 A would also open a Pandora’s Box for New Delhi, since if 35 A is erased, the fate of Presidential orders from 1954 to 1975 on J&K’s special status will become questionable. Since Article 35A (like Article 370) forms the bedrock of ‘accession of J&K’, questioning the legality of 35A will open the debate on the legality of the accession itself. This legality is apart from breaking the trust (whatever of it is left) between ‘J&K and New Delhi.
Even as somewhat similar rights, aimed at ‘protecting ethnic identities and land ownership’, exist in many other places in India (Himachal Pradesh and states of the North East), the tirade against 35 A (and 370) is viewed in Kashmir as part of a bigger plan. And this very reason has the potential to ignite fresh unrest here. While the armed insurgency in Kashmir can be contained by sheer military force, albeit with huge human costs, it’s the disconnect and anger on ground, that no military can win against. And till New Delhi is seen as snatching rights from the state, rather than restoring them, this disconnect will only keep growing to seemingly unbridgeable distances.

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