Scrapping Of Article 35A – Part Of An Agenda



Not much was known about Article 35A  of Indian constitution , till Civil Society of Kashmir smelt a rat in the intentions of  New-Delhi, ruled by  right wing ahistorical Hindutva forces, to scrap it and  initiated a debate on it some three years ago.  Since then much has been said about the article but very little done to save it.

I have been saying it repeatedly that Kashmir, blessed with rich history & beautiful Geography, has  always  been left in lurch by its politicians. Be it Abdullahs, Bakshis, Sadiqs or Muftis, all have acted as factotums of Delhi in demolishing the  identity of Kashmir and its people. The elixir of power has been too luring  for them  to forget their duties & responsibilities to their people & place.

The tumultuous period between 1953 to 1975 saw a demolition of sorts of the special status enjoyed by State. Change of nomenclature from Prime Minster & Sadri Riyasat to Chief Mister & Governor, Application of articles 356/357 & host of other laws applied through presidential orders became a routine affair. Even the judiciary  was  roped in to help the erosion of so-called special status. Two cases decided by  the apex Court prove the point. In the first case –Prem Nath Kaul vs State of J&K, decided in 1959, a Constitution Bench consisting of five judges unanimously held that  the powers of the Parliament and the President to apply laws to J&K are conditional on the final approval by the Constituent Assembly. In other words, the Court correctly put a full stop to the powers of Indian President & Parliament to apply any law, beyond the subjects of Defence, Foreign affairs & Communication as specified in instrument of accession, as Constituent assembly had already ceased to exist by then putting an end  to  the institutional mechanism  required to give concurrence to application of any fresh law.

But, in 1968, in Sampat Prakash vs the State of J&K, another Bench ruled to the contrary without even referring to the  above 1959 case. The court held that Article 370 can still be used to make orders there -under despite the fact that the State’s Constituent Assembly had ceased to exist. It substituted “ Concurrence of Constituent assembly” with” concurrence of  State Govt”. It is unbelievable but true that  Justice M. Hidayatullah sat on both Benches and ignored his own ruling in 1959 case. It was a display of “National interest” par excellence by the highest Court of the land.

Come 1975.  Abdullah now in power, by virtue of Indira-Sheikh accord, was expected to undo many wrongs committed by his predecessors. But instead he, launched unexplainable assaults on the identity & special status of the State. Starting with passing of  Land Grants bill, through which the Govt.  empowered itself to  gift  land on long term lease basis to most favored  non-resident  friends and few central Govt. corporations, chiefly NHPC which is using, processing our own resources (water) for manufacture of finished products (power) for sale in mainland India, making us 12% free power  beggars and keeping us as starved as we were sixty years ago. The ostensible purpose of the bill to accelerate the economic development of the State is for all of us to see. Today, product-wise, our state is 73% dependant on outside sources, a position far worse than it was in 1947.

The second assault was somewhat similar to axing one’s own feet. It may be of some interest to note that till 1975, we still had constitutional power to restore back the nomenclature of our  Governor  & Chief Minster as  ‘Sadri-Riyasat’ & “Waziri-Azam” but  Abdullah’s Govt. gave concurrence on 23rd July 1975 to  a presidential  order under Article 370(1)    which effectively  ended our this power.

Come to the next assault. As agreed in the accord, the State Govt. was empowered to review laws applied to State  between 1953 to 1975. In September 1977, Sheikh Abdullah  set up a cabinet sub-committee comprising deputy chief minister Mirza Mohd Afzal Beg, finance minister D D Thakur, ministers M K Tikko, G M Shah and G N Kochak and two senior civil servants to review central laws, including provisions of the Constitution extended/applied to J&K post-1953. It was almost three years before Thakur did so — (Beg had been removed from the cabinet and the panel reconstituted in 1978 with Thakur as chairman).In his 143-page report dated July 8, 1981, Thakur, said the 1975 Kashmir Accord could be the only basis for any review of Central legislation extended to J&K. He concluded that entries in the Union List of the Constitution that had been applied to the state “have become a permanent feature”. As for laws for entries in the Concurrent List, Thakur concluded, the state legislature could pass amendments to such laws but these would take force only after receiving the assent of the President.  In spite of dissent expressed by two Ministers M/s G.M.Shah & G.N Kochak,  this report was not out rightly rejected which implied that it was accepted by Sheikh Abdullah. The report was also not discussed in the state Cabinet with a view to keep the dust under the carpet so that it does not infect  the chair.

Presently, With an  invertebrate Govt. in power in State, New-Delhi has become so emboldened with fiddling the State’s special position that in a span of few months three laws namely National food security Act, Central statistics Act & Goods & service Tax Act have been applied to state inspite of vociferous opposition from public, civil society & and opposition parties alike. In case of the last mentioned act, even respected members from civil society & trading community were put behind the bars for fault of opposing erosion of special status.

Why I have felt compelled to dwell briefly on the background of  erosion of our heard earned special status is only to prove that our own so-called mainstream politicians have been  hand in glove with New-Delhi to launch frequent assaults on article 370? Without their overt & covert support, it would not have been possible for New-Delhi to go this far to think of even doing away with Article 35A.Now both Farooq & Mehbooba are crying hoarse over New-Delhi’s indifference  to defend Article 35A. Mehbooba has gone to the extent of saying that nobody will be there to pick Indian flag in Kashmir, in case article 35A is scrapped. Farooq is similarly dishing veiled threats to New-Delhi to stop further erosion or face dire consequences.

Whatever be their compulsions, ideological or otherwise, it is imperative for both of them & their cadres to close ranks and fight this issue jointly & unitedly with New-Delhi.  Farooq should publicly declare legislative support to Mehbooba who can take a leaf from  Bihar Chief Minster Nitesh Kumar’s book to be in a better bargaining position with New-Delhi. Their failure to do so, will not only burn Kashmir but also vanish their existence from the political scene of Kashmir.

(The author is a practicing chartered Accountant. E mail: [email protected])

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