Dismiss the petition

Article 35-A is a matter of life and death

Dr Geer Mohammad Ishaq
Srinagar, Publish Date: Aug 6 2018 11:23PM | Updated Date: Aug 6 2018 11:23PM
Dismiss the petition

Though the date has been rescheduled, but the threat is still looming  large upon Article 35A and other state subject laws including Article 370. This is due to the covert machinations and conspiracies of right wing political forces to thwart and abrogate them and thereby alter the demography of Jammu and Kashmir state so that the historical and age-old Kashmir issue is relegated to the back-burner and the peoples’ voice gets suppressed. Their main aim is to convert the existing majority into a minority and camouflage the dominant voice in the state. Instead of fulfilling its promises of according the right of self-determination to the people of Jammu and Kashmir as pledged by its stalwarts like Pandit Jawahar Lal Nehru in the United Nations Organization, Government of India is not only backtracking upon its promises and pledges made to the people of J&K right since 1947 but is also resorting to dubious tactics to subvert the popular sentiment and distort the historical facts about the vexed issue. 

Desperate attempts to repeal Article 35A and Article 370 of the Indian constitution are not to be mistaken as an abrupt aberration or sudden insurrection. Petition pending in the Supreme Court of India is an outcome of years of brainstorming and “chintan at Nagpur” upon how to fully merge and integrate the state of Jammu and Kashmir into the Union of India without taking any cognizance of the legitimate wishes and aspiration of the people of Jammu and Kashmir. Apart from Uniform Civil Code and Ram temple construction, Article 370 has been the main plank upon which BJP was founded so the petition challenging Article 35A is just a well conceived strategy to fulfil this agenda and tarnish the cultural identity as well as unique demography of the state of Jammu and Kashmir. 

Kashmir University Teachers Association (KUTA) has in a press release called for the protection of Article-35A and Article 370 of the Indian Constitution as well as Section 6 of the Jammu and Kashmir Constitution under all circumstances. It has expressed serious concern over all overt and covert attempts aimed at abrogating Article 35A and divesting the state subjects of the Jammu and Kashmir from their inherent rights and privileges enshrined under the Constitution. It has emphasized that the Govt. of India has always pledged and promised adequate constitutional protection of the hereditary state subject laws of the J&K state right since 1947 and now it cannot backtrack upon its promises. KUTA has made it absolutely clear that any such moves aimed at divesting the people of Jammu and Kashmir from their constitutional rights and privileges, making changes in its demography and tarnishing the cultural identity of Kashmiri people will be resisted tooth and nail and not accepted under any circumstances since the people of J&K have been enjoying these rights even before India became independent. 

Terming the stand of BJP led government at the Centre as highly condemnable in which it has decided not to contest the petition pending at the Supreme Court of India either by filing any counter-affidavit or by advising the Advocate General of India to rebut the contentions raised in the original and subsequent petitions, KUTA has stated that this way the central government is failing to do justice with the people of Jammu and Kashmir.  KUTA has urged upon the state and central governments to take due cognizance of both political and constitutional dimensions and ramifications of Article 35A before initiating any steps to fiddle with it since this Article was invoked in the wake of Delhi Agreement of 1952 that has several commitments attached to it and therefore cannot be revoked in isolation. If Article 35A is sought to be repealed on the grounds that it was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet and not by getting passed in the Parliament of India, then there are other such presidential orders that have been passed and implemented in the J&K state since 1947 that automatically become equally liable to revocation and rejection on the similar analogy and grounds. 

While Supreme Court of India is expected to decide the petition challenging Article 35-A strictly on legal basis, it cannot be completely blind to its political dimensions. Legality of this Article is subservient to its political reality. Repealing this Article would directly mean betraying the leaders and representatives of Jammu and Kashmir with whom Government of India has entered into several agreements from time to time be it the Delhi Agreement of 1952 or the Indira-Sheikh Accord of 1975 till which time as per the scholar Sumantra Bose 23 constitutional orders had already been passed to integrate the state into the Indian Union and 262 union laws had also been already applied to the state of J&K. Instead of resolving the Kashmir conundrum if the Govt. of India decides to do away with even the present status of the state it will be giving a clear indication that it does not care anymore thus pushing the people of J&K to the wall and further alienating them to a point of no return.  

Therefore abrogating Article 35A and Article 370 would mean putting all such constitutional orders and union laws that have not been approved by the Indian Parliament into question and calling for their complete revision or revocation. This will ultimately lead back to the basic Instrument of Accession signed by then ruler of the princely state of Jammu and Kashmir and then Governor-General of India, Lord Mountbatten who in turn had accepted the accession with a remark that, “it is my Government's wish that as soon as law and order have been restored in Jammu and Kashmir and her soil cleared of the invader the question of the State's accession should be settled by a reference to the people.” Here ‘reference to the people’ implies to conduct a plebiscite or referendum to determine the future status of Kashmir and if demography of the state is altered by repealing Article 35A and 370, it will be the biggest fraud ever committed in the history of mankind. 

Though on August 6, the date of hearing, the case has been rescheduled but that won't solve the problem. Supreme Court of India should either dismiss the petition on politico-legal grounds or adjourn the case till the final resolution of the vexed Kashmir issue in accordance with the legitimate wishes and aspirations of the people of Jammu and Kashmir. All regional political parties of J&K who have all-along been hand in glove with the Centre in eroding the autonomy and special status of the J&K state, should join hands at this critical juncture, come out in open and vehemently oppose all attempts aimed at abrogating Article 35A and other state subject laws. Cutting across party lines as well as ideological divides all sections of the society need to stand up and speak out to protect and safeguard the state subject laws governing J&K in order to preserve its demography, cultural identity and any semblance of leftover autonomy. Regional political parties who have been suffering from intellectual and moral bankruptcy in resolving the Kashmir issue and have been auctioning all interests of the state and its people in lieu of power need to put their foot down on this very issue and in one voice resist the impending onslaught on the sovereignty of the state. 


(The author is General Secretary, Kashmir University Teachers Association)


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