Kashmir’s Article 35A conundrum: New Delhi must tread carefully
Kashmiris are apprehensive that any move to undo Article 35A of the Indian Constitution would open the sluice gates for a demographic transformation of the Valley—an objective propounded by Sangh groups as the ideal solution to the Kashmir problem.columns Updated: Aug 03, 2017 10:31 IST
In a pointed warning to her coalition partner, the BJP, Jammu & Kashmir Chief Minister Mehbooba Mufti has noted that attempts to undo Article 35A of the Indian Constitution would strike a fatal blow to the nationalists in the state. Mufti was referring to an ongoing case in the Supreme Court challenging the validity of the Article, which prevents non-J&K state subjects from settling and buying property in the state. Although the writ petition was filed by an obscure NGO, it reflects the longstanding desire of the Sangh Parivar to abrogate the special status of J&K.
Kashmiris are apprehensive that such a move would open the sluice gates for a demographic transformation of the Valley—an objective propounded by Sangh groups as the ideal solution to the Kashmir problem. The J&K government is particularly concerned at the reluctance of the Union government to file a counter affidavit in the Supreme Court. Against the backdrop of the escalating protests in Kashmir, this issue could potentially be explosive.
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. In July 1949, Sheikh Abdullah and three colleagues joined the Indian Constituent Assembly and negotiated over the next five months the future relationship of Kashmir with India.
This led to the adoption of Article 370, which restricted the Union’s legislative power over Kashmir to the three subjects in the Instrument of Accession. To extend other provisions of the Indian Constitution, the Union government would have to issue a Presidential Order to which state government’s prior concurrence was necessary. Further, this concurrence would have to be upheld by the constituent assembly of Kashmir, so that the provisions would be reflected in the state’s constitution. This implied that once Kashmir’s constituent assembly framed the state’s constitution and dissolved, there could be no further extension of the Union’s legislative power. This was the core of J&K’s autonomy.
Following another set of negotiations in 1952 between New Delhi and Srinagar—known as the Delhi Agreement—several other provisions of the Indian constitution were extended to J&K via a Presidential Order in 1954. Among other things, this order empowered the state legislature to regulate the rights of permanent residents. These were subsequently defined in the J&K constitution of 1956. Article 35A of the Indian constitution merely clarifies the different status of J&K in this regard. Questioning the validity of this Article has no bearing on the rights of state subjects. Nor can the Presidential Order of 1954 be questioned without questioning the validity of other provisions of the Indian constitution it extended to J&K. What’s more, such orders have periodically been used to amend the state’s constitution.
Indeed, this has been done despite the fact the constituent assembly—the ultimate ratifying body—dissolved after the adoption of the J&K constitution in November 1956. This flagrant misuse of the provisions of Article 370 to erode the autonomy of J&K was started by Jawaharlal Nehru and was continued by succeeding governments. It has been a major cause for disaffection. Not surprisingly, Kashmiris have come to regard the rights of permanent settlement as the only remaining piece of any meaningful autonomy.
It is worth recalling that these rights were the product of a long struggle. This goes back to 1889 when the state government changed the court language from Persian to Urdu—a move that undercut the dominance of the Kashmiri Pandits in the state bureaucracy and led to an influx of Punjabi Hindus. The ensuing campaign against ‘outsiders’ led to the search for criteria of permanent residence, including acquisition of immovable property and length of residence. In 1927 the Maharaja enacted the definition of ‘Hereditary State Subject’. This piece of legislation was used by Kashmiri Muslims to demand greater representation and opportunities. Later still it formed the basis of the relevant provisions in the J&K constitution. Against the backdrop of Kashmir’s accession to India, these provisions understandably assumed huge importance as a bulwark of the state’s special status.
Any attempt to tamper with them is bound to result in a massive backlash. At a time when J&K stands close to the boil, New Delhi can ill-afford to ignore this situation.
Srinath Raghavan is senior fellow, Centre for Policy Research, New Delhi
The views expressed are personal