Scraping Article 35/A – Turbulence in Identification marks of Kashmir

Dr. Waleed Rasool.

The autonomous status of the occupied state of Jammu and Kashmir is 4th time at the legal radar of Indian Supreme Court, though, the jurisdiction of the supreme court of India is not applicable to the state because it is restricted to three provisions only i.e. communication, defense and external affairs as per Article 370. This constitutional arrangement grants special status to J&K which was agreed upon by Sheikh Abdullah and Jawahir Lal Nehru in 1947 and endorsed in 1954 and was inducted in Indian constitution by President of India Rajendra Prasad through the presidential orders under schedule xxi in which 94 among 97 Union list powers were extended to state. The crux of article 370 was to ensure the distinct character and maintain an identity of the state subjects.

Kashmir’s are facing multi-barrel assault by BJP regime and legal war is one of its dimensions. The only three provisions of India are directly applicable to state, however, Indian Union under clause (1) of article 370 made a series of 50 orders in which 3 orders were implemented in 1950, 1952 and 1954 and 47 orders had been issued between 11 Feb 1954 to 19 Feb 1994 without the concurrence of state government of Jammu and Kashmir however, concurrence of constituent assembly was mandatory. The elected authorities even the signatory of article 370 Sheikh Abdullah who showed reluctance to erode article 370 was showed the door and put behind bars till he reached to an agreement while signing Indra Abdullah accord of 1974 in which nomenclature of Prime minister was changed to Chief Minister and Sadre-riyasat to Governor. The jurisdiction of election commission was also extended to state and financial emergency has been also imposed in 2017.

Article 35/A is a derivative of article 370 which is nowadays at hit list. This provision safeguards the permanent resident ship, legal rights, the right to employment, and the right to sell or purchase of the land. This law defines the state subject rights of Kashmir which were already present since 1927 in Jammu and Kashmir. This law defines the acquisition of land rights, movable and immovable property. It empowers the state legislature to define the permanent resident of the state. It guarantees the scholarship, employment and restricts the settlement by non state subjects.

It is obvious that Present BJP government led by Prime Minister Narendra Modi had mentioned in his election manifestoes in 2014 to abrogate the article 370, however, when they framed coalition government with PDP led by Mufti Mohammad Syed it was agreed in 15 point agenda that constitutional provisions including the special status of Jammu and Kashmir would be maintained. India wants to bargain on 35/A, but whom to sell is difficult to assertion when BJP is relying on forces instead of the state subjects.

A Supreme court lawyer Churu Wali Khan who married the non-state subject and lost the state succession rights as per article 35/A. She challenged the article 35/A on August 29th, 2017 though it was Hindu community who incorporated the special article in the J&K constitution to safeguard their state rights under the rule of Maharaja Hari Sigh in 1927. The appeal was accepted and Indian Supreme Court indicted to put up the case before the 5 member bench an d the reserved the judgment to be announced on 6th August 2018.

Series of attempts were launched to scrap the article 35/A since 1947. It is all by design as the present Hindutva regime is adamant to hit and dilute the markers, of Identification of J&K and change the demography. The Dilution of Kashmiri Muslim identity on the shoulders of Kashmiri Pundit is a negation of Crestline identity; it is the blatant use of the inhuman methodology of Indian authorities to keep the Kashmir boiling.

It is pretend to mention while quoting Indian legal expert on article 370 AG Noorani that article 1 of the Indian constitution is only applicable through the article 370, if this article goes the article one of Indian constitution will also go, Secondly, as applied to J&K Art.245 has this revealing proviso: “no decision affecting the disposition of the state of Jammu & Kashmir shall be made by the Government of India except with the consent of the Government of that State”. It was inserted by the Order of 1954; therefore, present state Governor NN Vohra has no option except to wait for coming elected government of Jammu and Kashmir. The same position has taken by Umer Abdullah, who maintained that, if the article 370 goes there is no accession of Jammu and Kashmir with India so we are free.

Targeting the identification marks safeguarded by 35/A had triggered the spark in mainstream political parties of the Jammu and Kashmir, National Conference, PDP, CPIM and other mainstream groups deemed too concerned that the special status needed to be safeguarded, however; they are the first time on the same page with resistance leaders who challenge the accession and demand right to self-determination.

The symmetric erosion of legal position remained the priority of any and every governments of India to deteriorate the special status of Kashmir. Various Union Governments of India had kept the pace of extending the union list to the state of Jammu and Kashmir but to scrap the entire legal code of Kashmir is almost the major assault of the BJP. The document of the state Autonomy is on record that out of the 395 articles of the Indian constitution 260 were applied to Kashmir,93 entries of Union list 94 were extended and sparing only three. Among the concurrent list of 47 entries, 47 were applied depicts how hallow article 370 is when the extension of Union list is continuing and article 370 is entirely hallowed.   

To dilute the 35/A will not bring any change in an international disputed status of the Kashmir because it is maintained in United Nations resolutions 122(1957) adopted by the United Nations in its 765th meeting on 27 Jan 1957 reaffirmed its resolution of 91 (1951) any action by  legislative assembly elections are not substituted to right to , therefore, when had no validity hence the concurrence of this assembly is also invalid but it will open the floodgate to India to change the demography, when the basic fundamental right of citizenship is diluted Kashmiri land would be available to any and every non state subject.

India is playing with sentiments of Kashmir’s when ingenious resistance is at an all-time high. India intends to divert attention from right to self-determination to peripheral one i.e. towards the internal legal arrangement instead of right to self-determination. It is a litmus test by Indian to know to which and what extent the quantum of reaction from mainstream parties would be, who had been enjoying the privileges and power. It will enable Indian to know about the reaction of Dogras of Jammu, Pundit’s of Kashmir and Bodh of Ladakh. It carries the loud message to Kashmir’s and supporter of Kashmir because nationally and internationally that BJP can go to any extent. It has a relationship with the election manifesto of BJP to play the Hindutva card for the coming elections.

India is using radical approach to break the will of Kashmir’s by hook or crook. Indian had put all pressure points on play simultaneously and raised the quantum of pressure up to maximum level multi-dimensionally. The resistance leadership had been haunted and grilled by NIA. They have been shifted to Tihar Jail in hot summer is indeed an indiscrimination and inhuman. The daughters of Kashmir Asiya Andrabi, Fehmeeda Sofi and Naheed are also shifted to Tihar which is seriously a concern. BJP is desperate to have any breakthrough before coming elections by putting the Kashmir’s in pressure cooker to cook some arrangement under the Indian constitution is no were on the scene because resistance has been transferred to 4th generation hence none in the captivity and under the bonnet of Indian authorities is in a position to offer any deal to BJP.

It validates the notion that BJP is following the policy of assimilation as exercised in the Babri Masjid case. This proved a successful module to target the identification marks of Indian Muslims instead to give them any space by the court of law. This multi-polar modus-operandi worked instead of the policy of integration or giving a room for co-existence.

The blueprint of same policy is applied by BJP in Kashmir through the court of law. The patron applied by BJP in Gujarat, UP and Assam gave results through a policy of repression. The doctrine of necessity was applied in Afzal Guru Case to satisfy the Indian majority instead of offering justice.

The above observation based on primary date establishes that Article 370 is no more than a skeleton because it has been systematically eroded and now the nature of state subject is also in jeopardy, however, scraping of article 35/A would be mega jolt to any future negotiated settlement because it will increase the degree of trust deficit and will trigger the new cycle of resistance. It will serve Indian establishment but will bring another actor in the shape of Indian elite class at eyeball to eyeball with Kashmir’s directly, while as, it will not be easy for civil servants of Kashmir to offer the citizenship to Indian national. The capitalists of India are interested to purchase the land in Kashmir but to erode the article 35/A is more lethal to the Dogras of Jammu also who hold vast property and they need to surrender the extra land when land settlement bill of India is implemented directly. 

Political Pundits predict that bringing 35/A under discussion is pressure tactics hence the Supreme Court can adjourn motion or there would be a minor amendment. The higher court will never commit upon that it is politically motivated and will give room to Indian Union to keep the sword hanging. The higher court will serve the Indian Union; therefore, they will not give any relief to Kashmiri’s who are challenging the Indian rule. To bring 35/A under discussion cemented the notion of the masses under occupation that India is not a reliable actor hence, Pakistan shall be on board besides United Nations to balance the equilibrium otherwise any future settlement, not guaranteed by equal powers would be unilaterally at mercy of Indian establishment hence bilateral talks either between India and Kashmir or between India and Pakistan had failed, therefore, tripartite talks can be lone framework to settle the Kashmir dispute.

The writer hails from Srinagar.

MSc, Mphil(MC), PhD (IR) Scholar

Accredited Journalist/Freelance Columnist, and can be reached at waleedrasool@gmail.com

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