Article 35A: beyond law & courts

…political motivations the prime factor

Dr. Javid Iqbal
Srinagar, Publish Date: Aug 10 2018 11:13PM | Updated Date: Aug 10 2018 11:13PM
Article 35A: beyond law & courtsFile Photo

As the legal challenge to article 35-A in Supreme Court continues on multiple counts, there is a deepening feeling in state of Jammu and Kashmir that it is in its essence a matter beyond law and courts. The feeling is sinking in far and wide that political motivation is the prime factor. And, the political motivation is from a particular stream of thought that is bent upon negating the special status of J&K state. The negative attitude dates back to 1947, as and when the Maharaja Hari Singh acceded to India on temporary and conditional basis. The Maharaja ceded control over some subjects, such as external affairs, defence and communications; retaining the rest with the state. Subsequently, in the new set-up in the state, Maharaja abdicated. The new set-up did not rhyme with a particular quarter, feeling loss of power after a century of hegemony. The tune and tenor of naysayers assumed communal overtones. It found resonance in Indian extreme right-wing political circles. The pressure group thus created had a ripple effect on the so called secular elements within the Indian establishment. 

The Indian establishment had a twin concern. One, the disputed political status of J&K state with an international dimension, given that commitments and agreements had to be catered to. Two, the pressure group with communal overtones had to be accommodated, so as to save face on the domestic turf. International commitments and agreements meant application of temporary constitutional measures to tide over the interim period, until the final disposition of ‘K’ dispute. Article 370 thus became the constitutional bridge between J&K state and Union of India in 1949. The person who helped frame it—Gopalaswamy Ayyenger explained its necessity on the floor on Indian constituent assembly in the face of international commitments. He was answering queries from Maulana Hasrat Mohani. 370—the constitutional bridge became the sore point with the right-wing lobby. The vested interested within the state started harping on Ek Vidhan, Ek Pradhan, Ek Nishan. The extreme right-wing compounded the slogan with dubious intent. The establishment relented, with the resultant pressure on state authorities to further integration. In spite of Delhi agreement of 1952 the state authorities were not taken to be collaborative enough for desired political re-structuring. Changes were engineered within the state leadership, resulting in the gory episode of 1953.

Measured changes were brought about by using article 370 as a tunnel to push in one constitutional application after another to further integrate the state. Clause (I) (d) of the said article came handy. It reads:

Article 370 (I)(d): such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

Paragraph (i) of sub-clause (b) reads: (b) the power of Parliament to make laws for the said state shall be limited to—

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State are declared by the President to correspond to the matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State   

It follows that except for the matters specified in the instrument of accession (wherein Dominion Legislature may make laws for that State) the constitutional applications shall be guided by Article 370 (I)(d) where President of India may by order specify exceptions and modifications in consultation with the Government of the State. Article 35-A was thus borne of Article 370 (I)(d) implying a Presidential Order that was issued on May, the 14th 1954 in consultation with the Government of the State, which based its consultation on the recommendation of constituent assembly. The assembly had approved on February, 15th 1954 the proposals of draft committee (included GL Dogra, DP Dhar, Mir Qasim, Gh. Rasool Renzu and Harbans Singh Azad) presented on February, 11th 1954. 

It follows thus that any legal interpretation of article 35-A which is not read with 370 (I)(d) is flawed. And if at all parliament of India has any role in handling the constitutional relationship with J&K state, it is as specified in paragraph (i) of sub-clause (b) of article 370, and it pertains to the matters specified in the instrument of accession. The plea of ‘We the Citizen’ that article 35-A is not vetted by parliament as specified in article 368 of the Indian constitution has no basis, as constitutional applications, exceptions and modifications vis-à-vis J&K state are strictly guided by 370 (I)(d). Any legal interpretation of article 35-A which is not read with article 370 (I)(d) may not stand constitutional scrutiny. And any weird reading of article 35 A would bring article 370 into play with obvious implications on the entire gambit of accession, as article 370 forms the constitutional bridge between J&K state and Union of India. However, the concern presently is the cacophony of voices being raised by different elements with their tailored interpretation of article 35-A.

The cacophony of voices multiplied after 2014 as power passed to quarters opposed to whatever remains of the special status of the state and its demographic profile. From ‘We the Citizens’ to West Pakistan refugees (WPR) of 1947 and to Safai Karamchari’s of 1957, there is a whole set of petitioners trying to present themselves as victims, while as they have hardly a case given the definition of permanent residents (as defined in part IIIrd of Jammu and Kashmir Constitution) and as per article 35 A of the Indian Constitution. The cacophony is meant to confuse and confound, by different legal interpretations of full stops, commas and semicolons of relevant constitutional clauses, and by trying to make relevant even the irrelevant clauses.   

 Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival]


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