Maharaja By accepting the Accession, the Dominion of India acquired jurisdiction over the State only with respect to the subjects of Defence, External Affairs and Communications. Further, Clause 7 of the Instrument of Accession specifically protected the state’s right to ratify the application of any future constitution of India in its territory. Clause 7 reads:
“Nothing in this Instrument shall be deemed to be a commitment in any way as to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangement with Governments of India under any such future Constitution.”
It is pertinent to refer to Clause 8 of an Instrument of Accession which says that State retains sovereignty in all matters other than those specified in Instrument of Accession. Clause 8 reads as:
“Nothing in this Instrument affects the continuance of my sovereignty in and over this State or save as provided by or under this Instrument the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.”
The Article 35-A protects the laws conferring on permanent residents of the State of Jammu and Kashmir special rights as regards employment, acquisition of property and settlement in the State. This Article 35-A (saving clause) is subject to a constitutional challenge in the present petition before the Hon’ble Supreme Court. Interestingly, Courts during two petitions in 60’s and 70’s had already made clear that Jammu and Kashmir enjoys a special status under Article 370 and no fiddling can be made with regard to 35A.But Since the imposition of Governor rule, Jammu and Kashmir has witnessing a wave of “anti Kashmir” under aegis of BJP’s local as well as Central leadership. Deep state maneuver in shape of Scrapping Article 35A through Judiciary” has stirred every Kashmiri irrespective of his/her political affiliation to denounce and stand against it. Kashmir people have become well aware and well unitedthat such attempts are aimed at challenging the demographic character of the state. To prevent widespread protests on 35A, state forces have also stepped up to arrest numberof youth to deter innocent Kashmiri masses from protesting against scrapping 35 A. Frequent suspension of mobile and internet services has become a usual norm as well.
Persons affiliated with legal fraternity in India, have also raised questions about attempt of BJP sponsored move to scrap 35A. It is strongly felt by them that Article 370 accorded to Jammu & Kashmir is a set of special privileges including an exemption from constitutional provisions governing States. Moreover, it restricts Parliaments powers to legislate over the State to three core subjects also grants Indian President the power to make orders recommendation of the State’s Constituent Assembly.It is argued that Article 368 will not mechanically apply to Jammu and Kashmir. For such amendments to apply to the State, specific orders must be made under Article 370, after securing the Jammu and Kashmir Government’s prior assent. What’s more, such amendments will also need to be ratified by the State’s Constituent Assembly. Separatist leaders, trade unions, religious organisations etc threatened that any attempt to change the demography of the state by “tinkering” with Article 35A will be “intolerable” and warned that Kashmiris would “spill their blood” to safeguard the identity and character of the state and “no court, whether in India or in Pakistan, has any jurisdiction to take decisions that can in any way affect the disputed status of Jammu and Kashmir”.
Furthermore The former Chief Minister , Mehbooba Mufti said, Any attempt to fiddle with it will amount to violating its basic structure and M.P , Farooq Abdullah said Any attempt to fiddle with Article 370 (35A) will not be tolerated by the Kashmiris people. Tinkering with the Article is used as a political strategy by the Centre to change the demography of the state .Be it the rigging of 1987 elections or atrocities inflicted by PSA and AFSPA, New Delhi’s policies towards Kashmir haven’t changed much. Centre has never really given Kashmir the promised ‘Right”’. What Congress did behind the curtains BJP is doing it openly.
(The author is a human rights activist and an eye watcher of socio-political contexts of Jammu and Kashmir. Views are his own)