Resetting the status of Kashmir
Mohsin Raza Malik
October 09, 2018
The Supreme Court of India is currently hearing a number of Public Interest Litigation (PIL) petitions seeking the scrapping of Article 370 and Article 35A of the Indian Constitution. These two important constitutional provisions relate to the unique, extraordinary and special status of the state of Jammu and Kashmir within the Union of India. One of these petitions has been filed by an RSS-linked NGO, We the Citizens, challenging the validity of Article 35A and Article 370. The petition says that Article 35A is against the” very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. It also argues that Article 370 was only a ‘temporary provision’ to help bring normalcy and strengthen democracy in Jammu and Kashmir. This crucial hearing in the apex court has sparked mass protests across the disputed Himalayan state of J&K. Kashmiris are strongly protesting against this cunning move aiming at putting an end to the special constitutional status of IHK. All the pro-independence political parties in IHK also look very concerned about this issue which essentially involves the political future of the troubled valley.
Article 35A and Article 370 are two Kashmir-specific provisions in the Indian Constitution. Article 370 confers special autonomous status to the state of Jammu and Kashmir. This Article was essentially designed in accordance with the clause 7 of Instrument of the Accession (IOA) signed by Maharaja Hari Singh in October 1947, which declared that the state of J&K could not be compelled to accept any future Constitution of India. The State was to draft its own Constitution, and to decide what additional powers to extend to Central Government. Article 370 is an exhaustive constitutional provision which explains the relationship between the state of J&K and the Union of India. It allows the State to have its own Constitution after exempting it from the complete applicability of the Indian Constitution. It eclipses the power of the Central Legislature over the State by limiting it to only three subjects- defence, foreign affairs and communications. It also substantially limits the constitutional powers of the Central Government to the State. And lastly, it also provides that Article 370 can’t be abrogated and amended except upon the recommendations of the State’s Constituent Assembly.
Article 35A of the Indian Constitution is another important constitutional provision which empowers the legislature of the state of Jammu and Kashmir to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. So, this Article of Indian Constitution prohibits non-permanent residents from permanent settlement in the State, and from acquiring immovable property, government jobs, aid and scholarship in the state of J&K. This constitutional provision was introduced in the Indian Constitution through a Presidential Order in 1954 upon the request of Jawaharlal Nehru government.
Bharatiya Janata Party (BJP), the India’s largest parliamentary party, officially favours the integration of the state of J&K into the Union of India after reversing its special status through scraping Article 35A and Article 370 of the Indian Constitution. Therefore, as part of party’s manifesto for the 2014 general elections, it pledged to constitutionally absorb IHK. However, owing to some legal complexities in consequence of Indian Supreme Court’s historic ruling on this matter, the Modi-led NDA government has not yet succeeded in implementing the BJP’s important agenda to abrogate the special status of the state of J&K. The last Chief Minister of Jammu and Kashmir Mehbooba Mufti has also been very critical of this BJP’s agenda. At times, she has also publicly opposed the idea of the integration of the state of J&K into the Union of India. Among other things, this ‘fundamental policy difference’ also led to the BJP-PDP split paving the way for imposition of the Governor’s Rule in IHK in June this year.
It is very pertinent to mention that the Supreme Court of India delivered an important judgment on the issue of special status of IHK in April this year. It said that Article 370 of the Constitution, conferring special status on Jammu and Kashmir and limiting the Central government’s powers to make laws for the state, had acquired permanent status through years of existence, making its abrogation impossible. It has already held in the famous 2017 SARFAESI case that Article 370 was “not a temporary provision”. Similarly, in 2015, the High Court in IHK has also ruled that Article 370 of the Indian Constitution, which grants the state a special status, is “permanent” and “beyond amendment, repeal or abrogation”. It further maintained that while acceding to the Dominion of India, Jammu and Kashmir did not merge with it but retained limited sovereignty. Indeed, these landmark decisions made by the superior courts in India will help the disputed territory retain its special constitutional status.
Since Article 35A and Article 370 have somehow become a stumbling block to Indian designs to completely absorb IHK, successive Indian regimes have been endeavouring to scrap these important constitutional provisions. Article 370 is a special provision which distinguishes the state of J&K from all other Indian states. Therefore, if India succeeds in repealing this provision from its Constitution, the state of J&K will constitutionally become the ‘integral part’ of the Union of India. Similarly, Article 35A is primarily aimed at preserving the ethnic homogeneity of the state of J&K by resisting any undesirable change in the demographic composition in the volatile valley. India intends to scrap this constitutional provision to introduce its desired demographic model in the only Muslim majority state in India. Therefore, Kashmiri Muslims are quite apprehensive that India would transform them into a minority community from a majority one after scraping this provision. In that scenario, they won’t be able to get independence from Indian occupation even if there would be held a promised referendum in the future.
Inspired by the Israeli state policy of constructing ‘Jewish settlements’ in the Palestinian territories, the BJP-led NDA government has been trying to set up a number of townships to ‘resettle’ the ‘displaced’ Kashmiri Hindu Pandit families in the disputed valley. Indian PM Narendra Modi’s Bharatiya Janata Party (BJP) has long been vowing to return thousands of Hindu families who fled Kashmir after an armed revolt against New Delhi’s rule erupted in 1989. So, diligently recognising their ‘right of return’, the NDA government initially earmarked 500 crore to relocate and rehabilitate these Hindu pandits in various parts of IHK in April 2014. Theses heavily guarded Israeli-style settlements was also to have schools, hospitals, shopping mall, playgrounds etc. Kashmiris have strongly reacted this nefarious Indian design in the disguise of resettling Hindu Pandits to significantly change the current demographic composition of the state Muslim-majority state of J&K. Pakistan has also formally objected to this cunning Indian plan. In May 2017, Adviser to the Prime Minister on Foreign Affairs Sartaj Aziz wrote a letter to the UN Secretary General highlighting New Delhi’s attempt to bring demographic changes to IHK. This letter specifically pointed out the issuance of permanent residence certificates to non-residents, allotment of land to retired Indian army personnel, issuance of land to non-Kashmiris, the establishment of separate townships for Kashmiri pundits and settlement of West Pakistan refugees in IHK.
Despite extensively employing the military coercive apparatus supported by a set of harsh public laws allowing Indian security forces to use power with impunity, namely Public Safety Act and Armed Forces Special Powers Act (AFSPA); India has utterly failed in suppressing the ongoing freedom movement in the troubled valley. Similarly, India has also yet not succeeded in constitutionally absorbing the state of J&K despite exercising a de facto control over it for over 70 years after fraudulently securing a controversial instrument of Accession (IOA). The aforementioned provisions of India’s own Constitution essentially contradict its exclusive claim over this disputed territory. In fact, India’s entire domestic military, legal and political instruments to consolidate its illegal rule over Kashmir have badly failed in the face of Kashmiris’ strong aspiration for freedom and self-determination. Therefore, an impartial and independent plebiscite or referendum is the only pragmatic solution for the underlying woes of the Kashmiri people. Kashmiris should be allowed to set their political and constitutional status in accordance with the universal principle of ‘Consent of the Governed’.
The writer is a lawyer and columnist based in Lahore.