Abrogation of Article 35A; a Question Mark on Jammu’s Accession to India
Diwali, a Hindu ritual, has just wrapped up and so is the hearing of the case pertinent to Article 35A of Jammu and Kashmir’s state legislature. The plea was likely to be heard on August 29, but the Centre and the Jammu and Kashmir Government sought for some more time to file their respective replies, as a result of which the hearing was postponed until after the Diwali holidays. The matter was scheduled to be heard on October 23 but it was not in the list of hearings that day. It is not known now when the hearing of the case will resume, sources associated with the case say. Thus far, much has been stated and counter-stated on the issue over the past few months. Now, when the court is about to resume the hearing, it’s time we assess the situation at hand.
Article 35A is part of the executive order issued by the president of India called Constitution Order, 1954 (Application to Jammu and Kashmir) under Article 370 of the constitution of India, to legitimize the Indian occupation of IOK. The said article prohibits a non-J&K resident from buying property in the State and ensures job reservation for J&K residents.
Off late, New Delhi is bidding to abrogate the Article 35A without undergoing the formality of obtaining concurrence from the Jammu and Kashmir legislature. In this connection, Jahangir Iqbal Ghanie, Jammu and Kashmir’s Advocate General, said that three petitions have challenged the article in the Indian Supreme Court, but in the two other petitions, no notice was issued to the state government.
The article 35 is basically an agreement reached between New Delhi and Srinagar in 1952, according to which no one except the permanent residents will be able to settle permanently in the state, acquire immovable property and avail government jobs, scholarships and aid etc. this agreement was later added to the Constitution to a presidential order in 1954. Interestingly, the state of Jammu and Kashmir has its own constitution, flag and own penal code, which defines a permanent resident as the one who is a Kashmiri by birth or settled in the state before May 14, 1954, or who has been a resident of the state for 10 years and has “lawfully acquired” immovable property in the state.
In 2014, a little-known NGO ‘We the Citizens’, apparently backed by the right-wing groups, challenged the Article 35A in the Supreme Court on the grounds that it was illegally added to the Constitution as it was never floated before Parliament.
Union Home Minister Rajnath Singh, who belongs to the sitting government of BJP, has many a time forthrightly said that abrogation of 35A is the “permanent solution” to the Kashmir issue. The party has been taking a stand that Article 370, on the whole, must be abrogated, arguing that these special provisions were temporary in nature. Likewise, spokespersons and other senior leaders of BJP have frequently maintained that Article 35A was “not a sacred cow that cannot be touched”.
The central government, through Attorney General KK Venugopal, has told the Supreme Court that it wanted a larger debate on the issue as it was very sensitive in nature. He also asked that the matter is referred to a larger bench given the constitutional issues involved.
While talking to The Indian Express, the former chief minister of Kashmir and leader of National Conference, Omar Abdullah however strongly objected to the Centre’s position in Supreme Court.Omar said that questioning the special status of J&K will, in fact, put a question mark on the accession itself. 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,’ he opined. How can the Attorney General welcome a debate on Article 35A? Are they ready for a debate on accession? The special status of J&K is enshrined in the Constitution and it cannot be tampered with or removed. It is an article of faith,” said Omar. Tampering with Article 35A will be a clear-cut indication. You (Centre) are in effect altering the demography of J&K state,” he said.
The issue has also triggered an unlikely camaraderie. Perhaps for the first time in decades, political parties cutting across the political spectrum in the Valley are on the same page: They all want to preserve Article 35A. Joint Resistance Leadership comprising of Syed Ali Geelani, Mirwaiz Umar Farooq and Yasin Malik asked the Kashmir bar associations, Kashmiri Diaspora all over the world to hold a peaceful protest demonstration against the conspiracies to scrap the state subject law as the issue is a matter of life and death for people of J&K. IOK Chief Minister Mehbooba Mufti’s party has also objected to any tinkering with the article.
Most people believe this is the Centre’s design to change the demographic character of the Muslim majority state. Some fear that the Centre might entice the Hindus to buy land and property in Jammu, Samba and other districts. That will change the demographic character of the Jammu region as well. Such a situation will result in another mass uprising and IOK will become Palestine, where life will become an everyday fight for survival.
Some feel that move to abrogate Article 35A will have huge ramifications on the ground as the article was included in the Constitution top reserve IOK peoples land rights.
Every leader of Kashmir is of the same opinion regarding one point. If this clause of the Indian constitution is scrapped then it will invalidate constituent assembly of Kashmir that passed a resolution and ratified instrument of accession that doesn’t exist anywhere on earth or found in the sky.
The unresolved status of Kashmir issue is a sombre reminder to the world that Kashmiri people are deprived of their fundamental rights at the hands of so-called biggest democracy of the world.India is deliberately using every tactic to prolong the subjugation of IOK people but she must realize that Kashmiri demand for rights of self-determination being just, cannot be suppressed forever.
BJP veteran leader Yashwant Sinha attacked the government on the Kashmir imbroglio, insisting “India has lost people of the valley emotionally”. “I am looking at the alienation of the masses of people in Jammu and Kashmir. That is something which bothers me the most… We have lost the people emotionally… You just have to visit the valley to realize that they have lost faith in us,” Sinha said in an interview with a TV channel.
New Delhi must understand that it has, militarily and politically, failed to control Kashmir. It has certainly not won any hearts and minds among Kashmiris. “Wanism” is the spirit of third Intifada in Indian Occupied Kashmir and his spirit lives on as a beacon of light for Kashmiri youth.
*Ishal Zahra is a student of Leadership and Management Studies. She is Islamabad based freelance journalist.