Abrogation of 35A: An Attempt at Disruption

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Aajaz Dar

Article 35A of the Indian Constitution empowers the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. It was added to the Constitution through a Presidential Order, that is, The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India on 14 May 1954, exercising the powers conferred by the clause (1) of the Article 370 of the Indian Constitution, and with the concurrence of the Government of the State of Jammu and Kashmir.

The fresh debate with respect to the constitutionality of Article 35A started after an NGO ‘We The Citizens’ filed a petition in the Supreme Court in 2014, saying the provision was only supposed to be a temporary one. It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and the State of Jammu and Kashmir was never accorded any special status in the Constitution. Article 370 was only a ‘temporary provision’ to help bring normality in Jammu and Kashmir and strengthen democracy in that State, it contends. The Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.

People in Kashmir believe that this Article is permanent and in case it is abrogated the whole Instrument of Accession will be null and void. According to the people any attempts to tinker with Article 35-A of the Constitution would have “serious ramifications” and would inevitably “reopen the debate on Jammu and Kashmir’s accession with the Union of India”.

Jammu and Kashmir had acceded with the Union of India on certain conditions unlike the other princely states in 1947.”If legality of the Article 35-A comes under scanner, then the relationship between the state and India will also come under scrutiny.

The state’s two main political parties, PDP and NC, contend that there would be no relation between J&K and the Indian State if this provision is tampered with, and have vowed to fight the battle together.

Former Chief Minister Mehbooba Mufti has warned that if Article 35A is removed, there won’t be anyone left to carry the Indian flag in Kashmir; Omar Abdullah has called it the death knell for pro-India politics in the Valley.

The Government of India is duty bound to defend Article 370 & Article 35A in the Supreme Court as a sovereign commitment made to people of J&K. Otherwise they will violate oath of office of upholding the Constitution. Last year , Narendra Modi had assured status quo on State’s special status to the then Chief Minister Mehbooba Mufti. It is unfortunate that the Government of India is still not defending the Article in the Apex Court.

Now that the Valley seems on the verge of yet another unrest, it is time the GoI speaks. But, as of now, there’s little clarity on what is going to happen.

It is time to stand united and defend Article 35-A . I request all common people and all political parties to put all differences aside and stand with Kashmir. It’s not time to sleep but it is a time of awakening and the whole J&K against this attempt to change the demography of the state. Let’s all unite.

The author has done his masters in Political Science from the University of Kashmir. He can be reached at: aajazdar@rediffmail.com