By Arshad Khan
The Instrument of Accession between Jammu & Kashmir and the Indian state was signed in the year 1947. The Instrument of Accession Jammu & Kashmir transferred the subjects of communication, currency, defense and foreign affairs to the Indian state and the Indian state in turn guaranteed a special status till the final settlement in respect of Jammu and Kashmir is reached.
Accordingly, Article 35A was incorporated in the Indian constitution to fulfill India’s commitments towards implementation of the Instrument of Accession. This Article 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 by a 1954 presidential order issued under Article 370, the constitutional provision that mediates the relationship between the Union of India and J&K. Article 35A also empowers the State’s legislature to frame any law without attracting a challenge on grounds of violating the Right to Equality of people from other States or any other right under the Constitution.
Now, if the government of India or the judiciary decides to abrogate this Article or for that matter Article 370, it would raise questions on the validity of the Instrument of Accession itself. If one party unilaterally violates the provisions of the agreement, the other is relieved from the obligation of obeying the rest of the provisions. Likewise, if Article 35A is abrogated it implies that the State can claim the return of the subjects which were transferred to the Central Government.
Moreover, if the presidential order was not constitutional, how could the other Presidential orders issued from time to time in order to extent the jurisdiction of various central agencies to the state? These institutions include first of all the Supreme Court of India, the Reserve Bank, the Election Commission and others. The State of Jammu & Kashmir will cease to be their jurisdiction in case the Article, 35A is abrogated.
So, Article 35A and Article 370 have been introduced for a purpose; they are included to satisfy the aspirations of the people and respect the historical realities of the State. Historically, the state has lived an independent existence for centuries altogether. Hence, outrightly integrating this state with the Indian nation was impractical. Some safeguards were to be put in place and guarantees were to be given. And the safeguards and the guarantees were included in the Constitution of the country itself mainly in the form of Article 370 and 35A.
As the history of the people has remained the same and the aspirations are the same, the safeguards and guarantees cannot be taken out at any time till the final resolution of the Kashmir conflict. In case attempts are made to fiddle with the Article 370 and 35A , it could have disastrous consequences and the sings of that are clearly in sign in the State and
Looking at the overall picture of India , Article 35A, and 370, is not the only article which gives special status, there are other Article(s) and provisions which accord autonomy to many states and regions. The whole of Article, 371 is an example to point at. In the Article, many provision are similar to the Article in respect of Jammu and Kashmir and in some areas more powers have been delegated to the local authorities.
So, singling out Article 35A and the State of Jammu and Kashmir is a clearly an anti-State move. The whole issue is raised to gain political mileage and there is no better place than Kashmir to gain that electoral advantage. It is all done by keeping an eye on the 2019 Parliamentary elections. The nearer the elections come, the more the number of controversies there would be. Controversies pay in India.
The state should realize that abrogation of Article 35A is a sensitive issue which could set the entire state of Jammu and Kashmir on boil. The recent development in the state has proven that it is not the issue of Kashmir only, the rest of the regions of Jammu and Ladakh are equally worried and concerned. The people from all the regions have warned the Central Government to not abrogate Article 35A at any cost.
The Government of India should respect the mood and aspirations of the people and support all the moves in favor of the Article 35A in the Supreme Court. The Supreme Court on its part should realize the gravity of the issue and decide in light of the historical and realities and the provisions of law along with the democratic principle of the good of the people.
As far as the people of Kashmir are concerned , they should unite for a joint fight to safeguard this Article. They should give up all their difference and come to a common platform. Indeed, the indications from the state are encouraging for it appears that all the regional, religious and group differences have been forgotten and people are presenting a joint front towards safeguarding 35A. But, more needs to be done in the matter and even more is expected from them.
Hope all play their part and ensure the rights of the people of the state are protected. It really would be a great service towards the future of the State and towards the generation will come after us. Failure in the matter should not be an option; nay it must not be the option.
The author can be reached at: firstname.lastname@example.org