Millennium Post

Constitutional Conundrum

The temporary status of the special provisions has been made to appear permanent to suit political convenience.

Constitutional Conundrum
With raking up the matter of Article 35A of the Indian Constitution, the debate pertaining to the special status of Jammu and Kashmir resumes. Notwithstanding any deterring assertions, any tinkering with this Constitutional provision is bound to result in a paradigm shift in the political narrative of the country, and particularly, in J&K. Article 35A accords special power to Jammu and Kashmir Assembly for framing laws to give privileges and rights to the residents of the state. It entitles the Assembly to define 'permanent residents' of the state.

Going back to how this mandate made its way into the Constitution, it was essentially the motive of regulating migrants entering and residing in the state. Dogra ruler of the princely state of Jammu and Kashmir, Maharaja Hari Singh, through notifications in 1927 and 1932, imposed a law that defined state subjects and their rights. After J&K acceded to India, the tallest leader of Kashmir, Sheikh Abdullah took over from the Dogra ruler. In 1949, he negotiated Jammu and Kashmir's political relationship with New Delhi. This led to the inclusion of Article 370 in the Constitution which specifically bestows special status to the state (restricting the Union's legislative powers over three areas: defence, foreign affairs, and communications). Article 35A was inserted later in 1954. After agreement between Sheikh Abdullah and Nehru, several provisions of the Constitution were extended to J&K via Presidential order.
There is a background to this complicated exercise. The state of Jammu and Kashmir (a Muslim majority state) was ruled by a Hindu king at the time of transfer of power. Like few other rulers of princely states, Hari Singh, too, was not keen to forfeit his sovereignty to a newly Independent India. He was hesitant about acceding to either India or Pakistan, as either would have provoked adverse reactions from his people in the kingdom. He signed a standstill agreement with Pakistan and proposed one with India as well, announcing that Kashmir intended to remain independent. However, his rule was opposed by Sheikh Abdullah who insisted on his abdication.
In the backdrop of the Partition, Pakistan, trying to force the issue of Kashmir's accession, deployed various tactics to compound matters, and succeeded. The one with lasting impact is the occupation by Pathan tribesmen from the North-West Frontier Province of Pakistan who crossed the border and entered Kashmir. The invaders made rapid progress towards Srinagar. The panic caused the Maharaja to write to India asking for military assistance. This necessitated the signing of an Instrument of Accession and setting up an interim government headed by Sheikh Abdullah in return. The Maharaja complied.
At this point, Nehru committed the first blunder which would go on to become a bone of contention. He proclaimed for a plebiscite regarding the Accession when there was no legal requirement to seek such confirmation. Thereafter, Indian troops secured Jammu, Srinagar, and the Valley. The plebiscite was never held. On January 26, 1950, the Constitution of India came into force in Kashmir, but with certain special provisions. India, however, did not secure administrative control over entire Kashmir. The northern and western parts of the region went under Pakistan's control in 1947 (and remains so as Pakistan-occupied Kashmir). The second Nehruvian blunder was to take the matter to the UN for mediation and unnecessarily internationalise it when this was a manageable bilateral discord.
Given the unstable political atmosphere in the region, conditions being 'unusual and abnormal', and part of the territory encroached, it was accepted in the Constituent Assembly that Jammu and Kashmir was not yet fit to be integrated, lest the conflict spill over to the sorted, consolidated India. Hence, with Article 370 began the 'special' story of the northern most Indian state. The situation remains undecided with varying degrees of deterioration. However, a series of Presidential Orders has substantially diminished the force of Article 370 by making most Union laws applicable to the state. Many major institutions of India include J&K within its scope and jurisdiction. But the uncompromising pact so far has been what is safeguarded in Article 35A of the Indian Constitution, the matter pertaining to permanent residents and their rights.
J&K is not the only special state with its special provisions. Most of Northeast has comparable provisions with respect to territory, functioning, even AFSPA. Nearly seven decades down the line, abrogation of Article 35A threatens to destabilise the situation in J&K. What irreversible changes can that possibly cause? An alteration in demography, as postulated? The demography of the state remains largely the same since the exodus of Kashmiri Pundits. Whether or not should immovable property be acquired in the state by a non-resident is an interesting debate for another time. But before that, the reaction of mainstream political lords of the state and how they seem to be fraught with insecurity, demands some explanation. With the influx of outsiders in J&K with scope to flourish due to abrogation of 35A, more than demography, it is the political landscape of the state that is most likely to change.
The carrot of preventing a possible uprising by keeping 35A intact is essentially a cover-up for the fearful anticipation of mainstream politicos losing their ground in the Valley. Perpetuating alienation of the state is a political tactic to keep their positions consolidated and present the status quo as a semblance of stability. However, if the matter of abrogating 35A is pursued and, as warned, some unrest erupts, then this foreseeable possibility should only be contained better. The temporary status of the special provisions has been made to appear permanent to suit political convenience. Although repeatedly declared as an integral part, J&K has been prevented from being integrated with the nation as a regular, equal state with its distinctness, just like all other states. Article 35A stands as a barricade between J&K and the rest of the Indian Union, and on this barricade is the platform of mainstream politics in the state that keeps in motion the cycle of Kashmir conundrum.
(The author is Editorial Consultant and Senior Copy Editor with MPost. Views expressed are strictly personal.)

Kavya Dubey

Kavya Dubey

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