The state Jammu and Kashmir retains a special position in respect of other states in the dominion of India. After the conditional accession of Jammu and Kashmir to the union of India, the future of it remained undecided, the then legendary leaders of India promised at different places to leave the matter in the hands of people whether they would join India or Pakistan. But unfortunately this promise was never fulfilled. Let talk about Article 35A and 370 of Indian constitution. Why these Articles of Indian constitution are now and again challenged in the Apex court of India. In fact many petitions were rejected by the Supreme Court, challenging the validity of Article 35A and 370.
Article 35A
The 1952 ‘Delhi Agreement’ between Pandit Nehru and sheikh Abdullah contained 10 points in which one was the state legislature is having power to frame laws for confirming special rights and privileges of the permanent residents of state subjects . Article 35A was extended to j&k through the constitutional order (Application to Jammu and Kashmir) issued by the president of India on may 14 1954, specially devised to grant protection to state subjects already defined by notification in 1927 and 1932 by then Government of Jammu and Kashmir need to understand the background of the notification issued by the maharaja Hari sing, yes it has a background, a agitation was launched in 1920 following a demand by kashmiri pundits who then feared the demographic change and loss of power to the people of undivided Punjab , pushed to promulgation of 1927 defining the state Domicile laws and incorporating state subject Act for J&K. Thus continuance of these rights through Article 35A is protection to the permanent residents of the state.
Any tinkering with Article 35A will have far political consequences. The Article is a bridge between Jammu and Kashmir and New Delhi. Questioning the legality of the said Article will open the doors of questions on the instrument of Accession. So the center Government has to think before making any attempt to scrape the Article. The state Government also needs to be vigilant in order to avoid any further mass uprising in Valley.
Gist of Article 370
The provision of Article 1 of the Indian constitution shall apply to the Jammu and Kashmir, according to this said article Jammu and Kashmir is part of union of India. The power of the Indian Parliament to make laws for the JK is limited in union List and concurrent list. Any law applied to said state is needed concurrence of Government of the state.
Article 1 of the Indian constitution is applied through Article 370. So abrogating article of 370 is first needed concurrence of Government of Jammu and Kashmir. Hence abrogation of Articles 370 means cessation of application of Articles 1 on Jammu and Kashmir which means JK would be no more an part of India.
By the way Article 370 can’t be abrogated like this because it needs concurrence of constituent Assembly of Jammu and Kashmir which was dissolved in 1957. So it is bereft to think about scraping of this said Article. The Indian Home minister G. L Nanda in 1964 is quoted as saying, “370 would be used to serve as a tunnel in the wall to increase India’s grip on Kashmir
Now the ball is in the court of India whether they want Kashmir or not. Recently some Delhi based NGO filed a petition in Apex court to challenge the Article 35A,the hearing was put off for three months following the reports of imminent agitation. These petitions were dismissed in the past as in puranlal Lakhanpal vs president of India 1962 and sampat prakash vs state of Jammu and Kashmir” in fact Article 35A and 370 serve a relationship of jk with Union of India.
The nature of dispute of the state can’t be denied, Delhi has to take initiatives so as to solve the long vexed issue, it is has to shun to touch the sensitive issues which ignite fire in the valley. The center Government needs to deal carefully with Jammu and Kashmir, it has to defend the special status of it. Any tinkering with special status will provide another opportunity to new mass uprising as warning was given by Resistance Leadership last time when Apex court was pronounce judgment against Article 35A. So, it needs to be dealt with open minded.
(Author a law student at Kashmir Law College writes on issues concerning politics, society and governance exclusively for “Kashmir Horizon”. Views of the author are his own)
