Tuesday, July 16, 2019

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3, January 2018 10:36 PM

The article 35A of the constitution of India, unknown to the public domain till recent times, has raked up an intense debate in Kashmir and elsewhere in the country. It is necessary to first begin with what the article is all about
Article 35A of the constitution of India empowers the Jammu and Kashmir legislature to define the permanent residents of the state and their rights and privileges. It states no law existing at the time of incorporation of this provision in Indian constitution and no law enacted by the state legislature afterwards defining who shall be the permanent residents of the state or conferring on them special rights and privileges shall be void on the ground that it is inconsistent with or abridges or takes away any rights conferred on other Indian citizens by any part of Indian constitution.

Legal analysis 

Any discussion on the legality of article 35A would be impossible without a description of article 370 which provides special status to Jammu and Kashmir within the India federation. Article 35A along with other provisions of Indian constitution was incorporated in the constitution of India by way of a presidential order called Constitution (application to Jammu and Kashmir) order 1954 by the president of India in exercise of powers conferred on him by clause 1 of the article 370. Since article 35A was incorporated by a procedure established by article 370, it follows inexorably from it. It is pertinent to mention here that article 370 is expropriate vigor which means it is the only article in the constitution of India that applies to Jammu and Kashmir by its own force and all other laws or constitutional provisions can be applied to the state only by way of procedure established by it. It is a umbilical card that connects Kashmir with the Union of India. Constitutionally Kashmir became an integral part of India by virtue of 370. Whereas in relation to other states the addition, alteration, exception or repeal of a provision of constitution can be made by amendment procedure laid down by article 368, the article 370 provides the only mechanism to add, alter or repeal any provision of the constitution vis-a-vis Jammu and Kashmir. It follows that the only legislative route to abrogating Article 35A is by conforming to clause 1 of the article 370 that is by a presidential order after due concurrence from the state government. The crux of the argument advanced by RSS backed Think tank in its plea in the Supreme Court is that 35A be declared ultra vires to constitution since it was inserted by president and not by the parliament in accordance with the procedure laid down by article 368 of the Indian constitution. In the light of above analysis the argument is untenable and devoid of legal merit since president is well within his legislative powers conferred on him by article 370 to add, modify or repeal any provision of the constitution vis-a-vis Jammu and Kashmir. Since Article was added in the constitution application order, by questioning it the entire Constitutional order will come under question. if the court rules that the constitutional order issued by president is constitutionally invalid, such a judgment will be applicable to all presidential orders issued till date. All provisions of Indian constitution extended to the state such as replacement of Sadr-e-riyasat with Governor, prime minister with Chief Minister, Jurisdiction of Supreme Court election Commission and all other provisions extended through 41 presidential orders till date will become invalid. The constitutional link between the Union and J&K will be snapped and the relation between them will return to pre 1953 arrangement wherein center will have restricted powers on J&K only on matters specified in the instrument of accession. Another argument put forward the the NGO is that it violates the right to equality. It is pertinent to mention here that 35A is not a violation but one of the exceptions to right to equality. If one analyses the constitution of India, one could safely conclude that the constitution of India is more a book of exceptions than a book of rights. 

Implications of abrogation 

Ever since J&Ks conditional accession to India and promulgation of article 370, there have been many constitutional erosions reducing 370 to a mere shell. As many as 94 of 98 subjects in the union list and 364 of 398 articles of Indian constitution have been extended to Jammu and Kashmir in most cases treacherously by way of presidential orders through unpopular and puppet regimes installed by the Centre. Such political encroachments have been to a significant extend responsible for widening trust deficit between Srinagar and New Delhi. The armed resurgence in Kashmir is partly due to the non-fulfillment of the promises and commitments made to Kashmiris by Indian leadership at regional national and international levels and partly due to these political encroachments. Every encroachment reinforced the suspicion and fears of people of state, eroded the credibility of democratic institutions and widened the trust deficit. The traffic that flowed misconceived by Indian leadership as political integration in fact led to psychological and emotional alienation from India. That is why the word autonomy is not psychologically acceptable to the people of Kashmir. Sheikh Mohammad Abdullah’s sudden Volte-Face in 1953 from an accessionist to showing tendencies of a secessionist was an outcome of apprehension that the states autonomy might not be protected in future given the vehement opposition against it by right wing Hindu nationalists. Sheikh Mohammad Abdulla’s arrest in 1953 was the first political mistake of Himalayan magnitude made by India. India has lost credibility and trust of the people of Kashmir. The experience of being betrayed has made people extremely skeptical that is why every step taken by New Delhi is viewed with suspician and has the potential to explode into a violent political storm. The amaranth land transfer agitation is still fresh in memory. It goes without saying that any tinkering with 35A may produce an unprecedented political explosion which may be difficult to control. Even if the government is able to contain immediate fallout using brute force as has been invariable practice in past, it will have huge long term psychological and emotional repercussions. The leadership in New Delhi has to realize that inorder to reclaim lost Kashmir they will have to bring about psychological and emotional integration rather than political unification. The first step would be to acknowledge mistakes and try to write wrongs that have been historically done administratively, militarily and politically This will restore faith in the leadership and the institutions. The human rights abusers need to be brought to book, draconian laws to be repealed forthwith. The restoration of autonomy and authority to state institutions will give people a sense of honor and identity, bring emotional integration. I hope better sense prevails in national leadership earlier the better. 


Shahid Qureshi is a school Teacher  residing at Langate Handwara ,He can be contacted at cell number  91 9906486280

Views expressed in the article are authors ‘personal