Of Kashmir, Article 35-A and the collective existential threat

Article 370
Picture Courtesy: Internet
The battle over the issues of political significance such as Article 370 and Article 35A has once again become a cause of contention between Srinagar and New-Delhi but such battles have to be fought with facts rooted in historical accuracy, argue Javid A. Ahanger and M. Ashraf Khwaja. 

The nature of constitutional development between Kashmir and New-Delhi needs to be debated in the context of historical and political dimensions. The political narrative about the state of J&K has undergone a paradigm shift since the former princely state entered into a temporary constitutional arrangement [read temporary accession by Maharaja Hari Singh] with India and continues till date. Most jurists are of the view that laws are located in time and space. The state subject laws and property rights of the citizens of J&K need to be deliberated in the context of time and space vis-à-vis historical and political developments. But, in the absence of any reasoned debate over the state’s historical issues including the dispute itself, facts are either distorted or simply ignored by New Delhi. In the meanwhile, the conscious ignorance/arrogance of most of the political commentators and political stalwarts regarding the historical background of the state laws on citizenship and autonomy in the nationalist media increases confusion over the issue of temporary relation between India and Kashmir. Majoritarian

The battle over the issues of political significance such as Article 370 and Article 35A has once again become a cause of contention between Srinagar and New-Delhi. In fact, in the political corridors of Kashmir and New Delhi the tussle over the issue of greater autonomy under Article 370 is going on since the state’s accession with Indian dominion. The emergence of communal parties in India gave birth to right-wing politics. These political parties see the devolution of powers as a threat to the national integrity and identity of their existence. Nevertheless, since the right-wing political party BJP took the reins of power in 2014 under Narender Modi, the issue of apprehensions and trepidations once again surfaced on the ground. Though, the New-Delhi government by and large remained silent over such issues due to the coalition with PDP in the state, but NGOs and many other individuals believed to be very close to the BJP had once again covetously opened the debate over the issue of Article 370 and 35A by filing writ petitions in the Supreme Court in 2014 and 2017.

A large number of people in India especially the intelligentsia, defense analysts and hardcore policymakers and even some liberal think tanks also believe that the instability and separatism in Jammu and Kashmir are due to India’s inability to merge and assimilate the state with Union of India. Such type of people always sees Article 370 and 35A as a threat to the Indian unity and her national interests. Despite knowing this fact that Kashmir is a political problem since the day of partition and have historical roots, such people prefer to ignore the ground realities. Though the Centre from time to time had said that the matter is subject to the Honorable Supreme Court and its decision is final. However, New Delhi forgets that it was not the Supreme Court of India that defined the constitutional relation of Kashmir with India but the Constitution itself.

What needs to be done viz-i-viz article 35A?

First of all, New-Delhi must revisit its old policy of assimilation of Kashmir with the Union of India and it must bring change in her approach towards Kashmir and Kashmiris. The rulers in Delhi should not deceive the Indian masses for their selfish electoral gains. Instead, they must try to make public aware about the political problem of Kashmir. Second, instead of talking about controversial issues like article 35A and 370, there must be larger debate over the real issue, that is Kashmir problem and its possible solutions by building consensus with all stakeholders without any pre-conditions and sense of arrogance.

Third, New-Delhi must understand this fact that by scrapping or amending article 35A the state will burst again in politics of protests and the public sentiment and anger will be such powerful that it would be difficult to control for the state security agencies. Fourth, Article 35A has not only the legal and constitutional ramifications but it is related to the sentiments and larger issues of socio-economic and political subjects of the people of the state. Instead of doing politics over issues, New-Delhi must deal with such matters with absolute political maturity. Fifth, instead of scraping the article through Supreme Court orders or through other means New-Delhi must restore people’s faith in democracy and should reinstate much-eroded autonomy till the final resolution of Kashmir issue with her neighbor Pakistan. 

There are issues and problems in the provision like concerning the state subject of the women marrying outside the state. Their concern is genuine and the state legislature [read whoever will be in government] needs to take right decisions by incorporating changes in the State Subject Laws to redress the issues without making any hue and cry of abrogating or removal of Article 35A by fraudulent and deceptive means. Only the Jammu-Kashmir assembly can change the definition of Permanent Resident through a law ratified by a two-thirds majority. Let the State Assembly debate this issue in a politically suitable atmosphere. 

Tailpiece: We are not concerned about the mainstream parties who deliberate the dogma of “Accession or Merger and State Subject Laws”. Neither are we rebuffing anybody’s estimation as students of social science in general and Kashmir Politics in particular? But our only endeavor is to hunt the veracity of facts in their historical context for the people of the ill-fated land to contemplate upon the decisions by the autocrats like Hari Singh and the collaborators like Sheikh Abdullah. ♦

Disclaimer: The views and opinions expressed in this article are those of the author and do not reflect the views of Wande Magazine.



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