Once again, a wide range of constituencies in Kashmir have registered their protest against the proposal to repeal Article 35A of the Constitution. The Kashmir Valley saw strikes and shutdowns on Sunday, called by separatist leaders of the Hurriyat. Earlier, pro-India parties such as the People’s Democratic Party and the National Conference, as well as traders’ bodies, had demonstrated against the threat to the law, up for consideration in the Supreme Court on August 6.
Article 35A was introduced through a presidential order called The Constitution (Application to Jammu and Kashmir) Order, 1954, and absorbed into the state constitution of Jammu and Kashmir, adopted in 1956. It defines the “permanent residents” of Jammu and Kashmir – those who were already state subjects by 1954 or had lived there for at least 10 years. It conferred upon these subjects special rights and privileges, aimed at preserving the character, culture and demography of Jammu and Kashmir.
The order was issued under Article 370, the Constitutional provision that ensured special status to the state after it became part of the Indian Union. It gave a large degree of autonomy to Jammu and Kashmir, including the power to frame its own constitution. The state surrendered three key subjects to Parliament: defence, communication, external affairs and ancillary areas. The president of India could extend the legislative powers of Parliament and other Constitutional provisions, provided it had the approval of the state government and its constituent assembly, dissolved in 1956.
So the debate around Article 35A goes to the heart of the question of special status for Jammu and Kashmir. It threatens to formally unravel the very terms of the state’s accession to India. Over the years, Article 370 has been whittled down to a shell of the original provision that recognised the distinct history of Jammu and Kashmir. With the state under Central rule since June, the rights and autonomies once guaranteed to it seem to recede further into the past. As the matter comes up in court, there is much at stake in Kashmir.
The Presidential paradox
A clutch of petitions now challenge Article 35A in court. The first of these petitions, filed in 2014 by a little known non-governmental organisation called We the Citizens, which claimed it worked to “promote the interests of citizens of this country”, argued against special status for Jammu and Kashmir. The state became an “integral part of India” once it acceded to the Union, the petitioners contended, so there was no question of special status or treatment.
But most of the petitioners’ energies are focused on the presidential order of 1954. According to them, it went against Article 368(i), which said that amendments could be made by Parliament alone. The 1954 order, they argued, was beyond the jurisdiction of the president. Using a temporary provision of Article 370, they continued, the president had introduced “a new Article of permanent nature”. Referring to past judgments of the Supreme Court, they claimed the president could only tweak existing constitutional provisions but not introduce new ones.
Ironically, presidential orders would also be used over the decades to extend the writ of the Centre over the state. Through 41 subsequent presidential orders, the Centre extended 94 out of 97 entries in the Union list to Jammu and Kashmir and made 260 out of the 395 articles of the Indian Constitution applicable to it.
The Centre also used these orders to undermine the Jammu and Kashmir constitution: the ‘sadr-e-riyasat’ or president of the state was replaced by a governor picked by Delhi, the prime minister of the state became the chief minister, the jurisdictions of the Election Commission and the Supreme Court were extended to the state.
This erosion of special status, seen as a betrayal of the pact between the Centre and state at the time of accession, has been one of Kashmir’s long-running grievances against Delhi. With autonomy slowly choked out of the state, many in the Valley saw its position within the Indian Union as untenable.
A fragile pact
The court hearing on Article 35A comes at a crucial juncture in the Valley’s politics. On June 19, the Bharatiya Janata Party walked out of the coalition with the People’s Democratic Party, causing the state government to fall and bringing on governor’s rule. But so great was the drift away from electoral politics that not many in Kashmir mourned the demise of the government.
In the Valley, the coalition was seen as betrayal by the People’s Democratic Party, which had vowed to keep saffron forces out of Kashmir. The bitterness against the coalition fuelled anti-government sentiments which came to a head in the protests of 2016, following the death of Hizbul Mujahideen commander Burhan Wani.
For decades, the Valley has gone through cycles of anger and tenuous reconciliation, breaking out in pro-freedom protests but then returning to vote in assembly elections. While election turnouts may not have been a vote of confidence in the government, they suggested that voters still had a few quotidian expectations from elected representatives.
But the anger which surged in the streets in 2016 seems to have hardened into a more lasting antipathy. Parliamentary bye-elections in April 2017 were marked by violence and record low turnouts. Now there are fears that fresh elections to form a state government would only mean more death and unrest.
The last couple of years have seen hope in democratic processes peter out, the complete retreat of electoral politics and growing suspicion of Delhi’s intentions in the state. Under Central rule, even the fiction of a state government has been dispensed with. If Article 35A is removed, it could mean the snapping of a fragile pact between the Centre and the state, and the end of the road for representative politics in Kashmir.
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