After Sheikh Mohammad Abdullah signed the paper of accession with India and took over reins from the Dogra ruler, it created a trust deficit between him and the Kashmiri population. Prior to this act, Sheikh Mohammad Abdullah was widely regarded as the leader of masses and because of this decision he turned into a villain overnight. In order to make up for the loss of support and reputation, he tried to tie up with the Union government of India in formulation of some exclusive laws for the state which would differentiate the state from rest of the country and which would simultaneously come to his rescue for recovering his stature among the masses. As a result, the inclusion of Article 370 was formulated and enunciated in the Constitution of India which would confer special status and reservation for the state of Jammu and Kashmir and its residents. The major highlight of Article 370 was to restrict the jurisdiction of union government to only three areas: defence, foreign affairs and communications. At that time, it must be admitted, Article 370 served as a tranquilizer for the agitated citizens of Jammu and Kashmir. Somehow it made an impression that the state still stood out from the rest of country in spite of Sheikh Abdullah’s deal with India.
Later on, in the 1952 Delhi Agreement between Abdullah and Pandit Jawaharlal Nehru, several provisions of the Constitution were extended to J&K via presidential order under the form of Article 35A. So, it can be said that Article 35A was a bylaw of Article 350 which would specifically deal with the ‘permanent residents’ of the state. Hence, the subject matter of Article 35 A is the definition of who is the permanent resident of state and it subsequently empowers the state legislature of Jammu and Kashmir to confer some special rights and privileges to its permanent residents and simultaneously reserve nonresidents from claiming the rights which would be otherwise be constitutionally valid, like employment opportunities under the state government, acquisition of immovable property in the state, settlement in the state and right to scholarships and such other forms of aid from the state government.
By virtue of the reservations laid in Article 35 A of the Indian constitution for the nonresidents of the state of Jammu and Kashmir, Indian constitution has itself made the state different from the rest of the country. In other words it can be said that Article 370 and Article 35 A have constitutionally acknowledged the political dispute of Jammu and Kashmir. The constitution of India is in itself a slap on the faces of those people who claim that Jammu and Kashmir is an integral part of India and those who deny the validity of anti-Indian dissent of Kashmiri people.
Hence it has been a thorn in the path for those Indian state establishment(s) who want to realize their aim of ‘Akhand Bharat’. If there is any political party which is the biggest advocate of annihilation of Kashmir’s political dispute, it is the right wing BJP which is currently in power. The BJP has been critical of the makers of constitution for framing, what they call, arbitrary laws like Article 370 and Article 35 A. It has always been on the top of their agenda to abrogate these laws, as is evident from the fact that in the elections of 2014, one of the basic mottos in the BJP’s manifesto was to scrap these laws. They had also promised to arrange land at cheap rates in Kashmir for the establishment of Sainik colonies for ex-servicemen. Now that BJP has come into power, they are taking steps to materialize their manifesto. So they have lodged a petition against the validity of Article 35 A under the disguise of a RSS run NGO called ‘We The Citizens’ in the Supreme Court of India.
In Jammu and Kashmir , the mainstream parties are showing a strong resentment against the petition. The government has even filed a counter petition against the NGO’s petition. Before People’s Democratic Party, which is running the state government with the help of BJP, tries to gain the sympathy of people by acting as victims, they must be reminded that in the assembly elections they had compromised their party manifesto by making an alliance with BJP. The scrapping of these laws was always the foremost agenda of BJP and in spite of this fact PDP had opened the doors into the valley for BJP. Legally and morally, the Chief Minister has not any right to curse and threaten BJP against the proposed abrogation of these laws. It can be said that in case these laws are scrapped, the BJP and PDP will equally share the credit for it.
The proposed abrogation of Article 35 A is as much an act of war against the citizens of Jammu and Kashmir as any military action. If Indian forces are containing the dissent at the behest of gun, the stooges of BJP and RSS are doing so at the behest of constitutional intrusion. The Union government of India wants to justify this invasion by giving arbitrary legal reasons. For instance , they are claiming that this law affects the Fundamental Rights of other Indian citizens. It is completely irrational to imagine that any privilege enjoyed by a state citizen from regional government can curb the right of a citizen living in another state. Another legal excuse that is given to scrap Article 35 A is that this Article was not originally part of the Constitution as it was adopted only through a Presidential Order in 1954 and has not gone under the scrutiny of the Indian parliament. By giving this reason, the government is questioning the setup of credibility of its own constitution. Article 35 A is not the only law passed through a presidential order; there are other 41 orders as well and by this logic all those subsequent Presidential Orders will also become vulnerable to legal questions.
In case article 35 A is scrapped, it won’t take long when nonresidents will replace the state residents in every aspect. The land will be bought at sky-high rates, an offer which would be very hard for an ordinary Kashmiri man to turn down. And eventually we will have to crave for space in our own homeland. Article 35 A also reserves state government’s job opportunities exclusively for state residents. In case the Article is scrapped, the job opportunities will be there for the taking for whole India. There is already a scarcity of government job opportunities, and if whole country lays a claim on the jobs it would be catastrophic for the educated class of Kashmiris. It won’t take long until Kashmiris would have to revert back to the era of forced labour.
The anti-Indian cause attracts its support from the Muslim population of Kashmir. The union government knows that as long as Muslims are in majority in the state, the anti-Indian cause is very much alive. Hence, they are planning to dilute the Muslim majority population with nonresidents’ settlements. It is the tactic exercised by Israel in Palestine, the government knows that once the settlements are established, it won’t take much time to eradicate the political aspiration of Kashmiris. Hence if Article 35 A is scrapped, it will prove fatal to the political dispute of Jammu and Kashmiri.
In case the Supreme Court of India does ignore the legal reasons and rationale logics and gives any decision against Article 35 A, it will further wither away the already tattering trust of the citizens of Jammu and Kashmir in the Indian judiciary. It will be considered as a party to the constitutional war which aims at overhauling the demography of state. The citizens of Jammu and Kashmir, especially Kashmiris, must act and resist against this attack at both individual and collective capacities. Article 35 A is a shield to protect identity for every state resident and every effort must be taken to oppose its abrogation. It is the time to shun individual differences and identities and collectively work to protect our identity, land, culture and political aspirations.
—The author is a law student at Kashmir University. He can be reached at: email@example.com