The Muslim majority status of Jammu and Kashmir has never been acceptable to the right wing organizations that are hell bent to make every effort to deprive the state of its very unique political identity and the special status that it enjoys. In their lust for power, quest for homogeneity and to pave smooth way to make Uniform Civil Code applicable across India, the repeated attack on the special status of Jammu and Kashmir can be viewed as one such move. The separate Constitution of the state according to which it’s governed, its own state subject laws and the restricted powers of the Indian Parliament to make laws in respect of the state has always remained under attack since from its inception.
Sensing difficulties in following the legislative route, these groups found it better to take the judicial route to impress upon the court to declare Article 370 and Article 35-A null and void. In the year 2014, a Delhi based NGO “We ,the Citizens” filed a writ petition where it challenged the validity of both Article 370 and Article 35-A. The 51 page petition contends that Article 370 was a ‘temporary provision’ to help bring normality in Jammu and Kashmir and strength democracy in that state. On the other hand, the petition describes Art 35-A against the ‘basic structure of the Constitution’ and ‘Very Spirit of Oneness of India’ as it creates a “class within a class of Indian Citizens” Though the challenge to these special provisions is not a new thing, however, what has set the alarm bells ringing is the reluctance and delay on part of New Delhi to file a counter affidavit in the Supreme Court as has been a practice by earlier regimes that subsequently resulted in the dismissal of such politically motivated writ petitions.
Historical Background of State Subject Laws
When one turns over the pages of the history, it becomes quite clear what necessitated these constitutional safeguards to protect the identity and rights of the state subjects/citizens of the state as was also stated by then Prime Minister of Kashmir Sheikh Muhammad Abdullah in his statement given to Constituent Assembly of the state on 11th August 1952.
The present day “state subject laws” and other special rights that Article 35-A guarantees to the state subjects of the state finds its roots during the times of Maharaja when Jammu and Kashmir was a princely ruled state under British paramountcy. The political movement started during early 20th century led to the emergence of “heredity State Subject” as a political identity for the state’s people. On 20th April 1927, the then Maharaja passed the Heredity State Subject notification at the instance of Kashmiri pandits who feared an influx from Punjab. This order granted to state subjects the right to government offices and the right to land use and ownership which were not available to non state subjects.
Following the singing of Instrument of Accession (IOA) with the Indian Union on 26th October, 1947, the Maharaja ceded control of only three subjects to the Government of India viz Defense, External Affairs and Communication. This was even stated by Dr Karan Sing, the first Sadar-i-Riyasat and the son of Maharaja on the floor of Rajya Sabha while participating in discussion during 2016 by stating, “My father acceded for three subjects- Defense, Foreign Affairs and Communication. He signed the same IOA that all other princely states signed but all the states subsequently merged, Jammu and Kashmir did not merge. J&K’s relationship with rest of India is guided by Article 370 and the state Constitution that I signed into law. Thus from very beginning, Jammu and Kashmir has been give a special status.”
Following the conditional accession of the state, the Constituent Assembly of India incorporated Article 370 in part XXI of the Constitution that grants special status to the state. The future relationship between the state and the Indian Union was discussed in Delhi Agreement of July 1952 between the then PM of India J.L. Nehru and Sheikh Muhammad Abdullah. Following this agreement the Indian citizenship (Article 5 of the Indian constitution) was applied to the state but in return Article 35-A was incorporated into the Constitution of India on 14th May 1954 through the presidential order ,that is, The Constitution (Application to Jammu and Kashmir) order 1954 passed by then President on the aid and advise of J.L Nehru cabinet in accordance with the Article 370 (1) (d) of the Constitution of India and with the concurrence of the Government of Jammu and Kashmir. This assurance was in fact given by J.L Nehru to the Kashmiri delegation during the Delhi Agreement negotiations whose premise was to preserve the state subject laws and were apprehensive that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. This too was even stated by J. L Nehru to the Indian Parliament.
Text of Article 35-A
“Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State
(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
(b) Conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—
(i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.”
Thus, this article empowers the J&K state legislature to define “permanent residents” of the state and to provide special rights and privileges to these permanent residents (this is dealt under section 5 of state Constitution).
From the state High Court to the Supreme Court of India, the special status of the state has been upheld in several judgments. However as the judgments/orders delivered by the Supreme Court are open to judicial review (Art 137), the issue is being raked up again and again for political gains. The intentions of such writ petitions becomes quite evident as one finds that under the same part of the Constitution (Part XXI) twelve other states of the Indian Union also enjoy special status in certain matters and there is no hue and cry on this. These include Maharashtra & Gujarat (371), Nagaland (371 A), Assam (371 B), Manipur (371 C), Andhra Pradesh & Telangana (371 D and E), Sikkim (371 F), Mizoram (371 G), Arunachal Pradesh (371 H), Goa (371 I), Karnataka (371 J). The provisions in respect of Nagaland and Mizoram are quite specific.
Article 371A of the Constitution of India clearly says: “Notwithstanding anything in this Constitution, – (a) no Act of Parliament in respect of – (i) religion or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law, (iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the legislative Assembly of Nagaland by a resolution so decides.” This provision inserted in 1962 explicitly bars the Parliament of India from making any law in respect of “ownership and transfer of land” in Nagaland and also “its resources”. Similar is the case with Mizoram. As one of the eminent constitutional experts, A.G. Noorani rightly opines, “Kashmir would never have acceded to Indian, even in its hour of peril, if it knew that decades later communal minded persons would want to wipe out that Notification which Article 35A sanctifies”.
Though, it is for legal luminaries to argue and prove the validity of these provisions in the court of law that we are confident of, but as a society and responsible citizens we all must unite to thwart any such attempt that is aimed to destroy the identity of Jammu and Kashmir. There is a need to mobilize mass public opinion in all the three regions of the state and make general public aware that if at all Article 35-A is annulled or diluted it will have serious implications and may act as a tool to change the demography of the conflict torn state. The unity shown by different trade bodies and every responsible citizen of the state is a good gesture but, at the same time, we must remain cautious regarding any ill conceived and mischievous designs to divide the people on region, religion and language basis. We can never accept to become refugees in our own land on the pretext of so called development that can ostensibly happen if Article 35 A goes.
The writer is UG student @ SKUAST-K. He can be reached at firstname.lastname@example.org