The Kashmir valley has lately been aswirl with rumours of an impending move by the central government to scrap Article 35A of the Constitution. The article, which prevents anyone who is not a state subject of Jammu & Kashmir from purchasing property and settling in the state, is seen as a vital safeguard for the autonomy of J&K.
Its removal, Kashmiris fear, would pave the way for a demographic transformation of the Valley. While the article has been on peoples’ mind owing to petitions in the Supreme Court challenging its validity, the latest bout of speculation has been triggered by concerns about increased paramilitary deployment in J&K, allegedly to contain the public fall-out from the scrapping of the article.
Senior BJP leader and former chief minister of Madhya Pradesh, Shivraj Singh Chauhan, clarified in a press conference in Srinagar that Article 35A was sub-judice and the BJP had “not discussed any proposal to see it scrapped as of now”. But this has not stanched the flow of rumours.
The rumours also reflect apprehensions in the Valley following Home Minister Amit Shah’s pointed statement in Parliament that Article 370, which deals with the special status of J&K, was “temporary in nature” and “not permanent”. Shah’s statement, in fact, continued with the BJP’s long and consistent stand on the abrogation of Article 370, going back to 1951 when its parent, the Bharatiya Jana Sangh, was founded.
To fully grasp the political sensitivity around Article 35A, we need to understand its historical significance for Kashmiris.
The different status of J&K
The Instrument of Accession signed by then-Maharaja Hari Singh of Kashmir in October 1947 specified only three subjects on which the state would transfer its powers to the Government of India: foreign affairs, defence and communications. In March 1948, the Maharaja appointed an interim government in the state, with Sheikh Abdullah as the prime minister. The interim government was also tasked with convening a constituent assembly for framing a constitution for the state. In the meantime, the Constituent Assembly of India was conducting its deliberations. In July 1949, Sheikh Abdullah and three colleagues joined the Indian Constituent Assembly and negotiated the special status of J&K, leading to the adoption of Article 370.
This article limited the Union’s legislative power over Kashmir to the three subjects in the Instrument of Accession. If the Union government wanted to extend other provisions of the Indian Constitution, it would have to issue a Presidential Order under Article 370. The state government would have to give prior concurrence to this order. Moreover, the constituent assembly of J&K would have to accept these provisions and incorporate them in the state’s constitution. Once Kashmir’s constitution was framed, there could be no further extension of the Union’s legislative power to the state. This secured J&K’s autonomy.
Incidentally, this was the reason for listing the provisions of Article 370 as “temporary” in the Indian Constitution: the final contours of the state’s constitutional relationship with the Union were to be determined by the constituent assembly of J&K.
The constituent assembly of Kashmir convened in November 1951. Just as it got to work, Abdullah wanted to depose the Maharaja and end dynastic rule. Because the Maharaja was recognised by the President of India, this move raised larger questions about working out more precise details of J&K’s constitutional relationship with the Union. It eventually led to the Delhi Agreement of 1952. Although Nehru and Abdullah fell out soon after, several provisions of the Indian Constitution were extended to J&K via a Presidential Order in 1954.
This order also empowered the state legislature to regulate the rights of permanent residents – a demand of Abdullah and other Kashmiri leaders. These were later defined in the J&K constitution of 1956. Article 35A of the Indian Constitution only clarifies the different status of J&K in this respect.
The Kashmiris insisted on these rights because they resulted from a protracted struggle. This movement had begun back in 1889 when the J&K government had changed the language of the court from Persian to Urdu. This had eroded the prominence of the Kashmiri Pandits in the state bureaucracy and led to the induction of Hindus from Punjab. Following a long campaign against ‘outsiders’, the Maharaja enacted in 1927 a law that defined a ‘hereditary state subject’. Kashmiri Muslims also used this legislation to demand greater opportunities within the state structure commensurate with their demographic profile.
Misusing provisions of Article 370
The legality of Article 35A is being challenged in the courts on the grounds that it was not added to the Constitution by a constitutional amendment under Article 368. The argument does not stand scrutiny. For one thing, the article does not confer any rights on J&K state subjects – it only reflects them. More importantly, the Presidential Order of 1954 cannot be impugned without questioning the validity of other provisions of the Indian Constitution extended to J&K at the same time. Such orders have also periodically been used to amend the state’s constitution. Indeed, this has been done despite the fact that the constituent assembly — the ultimate ratifying body — was dissolved after the adoption of the J&K constitution in November 1956.
Starting with Jawaharlal Nehru, successive central governments continued to extend their powers over Kashmir by merely seeking the approval of pliant state legislatures. New Delhi argued that since the constituent assembly of Kashmir had wound up in November 1956, the powers granted to that body should be vested in the state legislature. The intention of the framers of the Constitution was just the opposite. Worse, this reading was upheld by the Supreme Court, thereby making a mockery of Article 370. This gross misuse of the provisions of Article 370 has already hollowed out the special status of J&K. Indeed, Kashmiris regard the provisions listed in Article 35A as the last vestige of any real autonomy.
Opening the Pandora’s box
The BJP is in an unprecedentedly strong political position to give effect to its longstanding demands on Kashmir. But the velocity with which rumours are currently circulating suggests that there may be a major backlash against a move to scrap Article 35A.
In this context, it is also worth pointing out that while Article 370 is designated as “temporary”, the BJP should consider carefully the temptation to abrogate it in order to “integrate” J&K with India. Article 370(1)(c) explicitly mentions that Article 1 of the Indian Constitution applies to Kashmir through Article 370. Article 1 lists the states of the Union. This means that it is Article 370 that binds the state of J&K to the Indian Union. Removing Article 370, which can be done by a Presidential Order, would render the state independent of India.
The article was framed in this fashion for good reason. In 1949, when these discussions took place, it was likely that a plebiscite would be held in the state. The framers of the Indian Constitution had to allow for the possibility that the Indian union may have to let go of J&K. Far from effecting a closer “integration” of J&K with India, removing Article 370 might open the proverbial Pandora’s box.
The author is Professor of International Relations and History at Ashoka University and a Senior Fellow at Carnegie India. Views are personal.