Article 35-A: Not a Ripe Time to Breach an Article of Faith and Trust

Article 35 A

The “Carte Blanche” of Jammu and Kashmir legislative Assembly-Article 35-A was incorporated in the Constitution of India by presidents order in 1954. The president’s order provision is under the Article 370 (1)(d) of Indian constitution. This article allows the president of India to make certain “exceptions and modification” to the constitution for the welfare of residents of Jammu and Kashmir. Article 35-A  gives ‘Carte Blanche’ to Jammu and Kashmir legislative assembly to decide first, who can be the residents of Jammu and Kashmir state. Secondly, to grant special rights to residents of the state which includes privileges in government jobs, scholarships, and purchase of property in J&K et al. Above all, laws made under this article by state legislature cannot be questioned for breaching the constitution of India or any law of India. In this way, article 35-A gives a special autonomy to the state of Jammu and Kashmir state. But this provision for the state of J&K is questioned and contested for violating the several fundamental rights and ‘a very spirit of oneness of India’.

To quote Dr. B R Ambedkar, ‘‘India is the indestructible union of destructible states.’ Giving special provision to any state on specific grounds would not dilute the nature of Indian union. Rather, it is an effort to further integrate the diverse, multi-cultured and multi-religion nation. India is a state in the process of integration. Providing special status to J&K state is not something new or unique to J&K state under Indian constitution. As in India constitution under article 370-371(J) besides J&K state, twelve other states enjoys special provision too. Those states include Maharashtra and Gujrat, Sikkim, Mizoram, Goa, Karnataka et al. Therefore, special provision to states is need of circumstances and time. It should not be seen as against the unity of India. But should be seen as suitable steps towards fulfilling the ideal of national integration. And special status to some states on special grounds should be seen as a unique feature of Indian federation i.e ‘unity in diversity.’

The Jammu and Kashmir state is one of the most turbulent states in the union of India. There has been AFSPA since the 1990s for about three decades. As a result, the state people have been the victim of several atrocities and human rights violations. The insurgency has turned Kashmir into the bloodbath. As a result, almost all the sectors of Kashmir society socio-economic, educational, political et al. has been worst affected. All this halted the developmental process in the state. AFSPA along with underdevelopment has ruined the image of the Indian union in Kashmir. Any move by the centre to alter the status of Jammu and Kashmir is seen as an attack on the identity religion and culture of Kashmir. Therefore, in this situation of fits and stars, chaos and confusion, mistrust and suspicion there is no scope for any reform in the status of Jammu and Kashmir status. For that, a suitable environment has to be created and will of the people has to be taken into consideration. Else, it will reinforce the already prevalent unrest in the state.

Kashmir situation and the special status is more politically motivated. Most of the electronic media is depicting the gloomy state of Kashmir situation. Which is totally biased. The media is projecting and presenting the state of J&K in the guise of armed rebellious elements and stone pelter’s. The daily debates on media channels are by those who have an iota knowledge about reality in and about the state of J&K. In such a situation public opinion in created to ruin the image of the J&K state. That drastically affects the J&K’s economy and the attitude of people of other states towards people of Kashmir gets diluted. The centre should make laws to take action against those elements who try to disintegrate India by creating false-consciousness instead of trying to do hurry in abrogating the special status enjoyed by some states including J&K. These disintegrating tendencies created by evil elements in India further alienate and create among the people of state of J&K suspicion and trust deficit.

In the history of Jammu and Kashmir state, this is one of the rarest of rare occasions/cases where the people irrespective all difference from almost all sections/streams of society united and have one voice against the abrogation or the breach of article 35-A. Not only the Joint Resistance Leadership but also Political Parties and the Intellectuals and many other important personalities are against the abrogation of Article 35-A. Indian Administration Services Toper of 2010 Shah Faisal reaction to any breach in Article 35-A was as, ‘ replicating article 35-A will end J&K’s relationship with rest of India.’ Former Chief Minister of J&K during her coalition with BJP warned centre that, ‘any attempt to tinker with article 35-A would have repercussions and India would not get a shoulder to carry its national flag in J&K. Another PDP minster Naeem Akhter said that ‘Abrogation of 35 (A) will convert constitutional relationship into occupation.’ If such is an opposition from the state of J&K, centre must realize the consequences of the abrogation of the fundamental pillar or base of accession with Jammu and Kashmir. These statements clearly depict the ground reality of Kashmir and the unsuitability of the time to have any say in article 35-A. Moreover, in Kashmir article 370 along with Article 35-A is seen as a pillar of the accession of Jammu and Kashmir with India. Therefore, tinkering with the article can prove cataclysmic and awful.

Given the present circumstances in the state in the form of increasing insurgency, alienation and governors rule to have any say on the article 35-A is not according to the principles of justice. The Article 35-A granting special rights to the J&K state subjects has to be brought by a fair political process based on the constitutional procedure operative between the centre and J&K state. Although, the constitutional procedure under Article 370 of Indian constitution is a matter of disdain and contested but keeping in mind the present circumstances, any effort to change such a format would have serious repercussions. The evidence of which we already have seen not only through the mass opinion but also from the leaders of major political parties and various other pressure groups and important personalities. The Kashmir is not getting rid of the vicious cycle of conflict, turmoil, unrest and violence centre is trying to push it to the further levels. Any possible peaceful change in the status and autonomy of Jammu and Kashmir is only through the consent and willingness of people of Jammu and Kashmir. That is not possible until and unless peace will not prevail in Kashmir. Peace is possible only when the centre will take appropriate measures to bring the people of Kashmir with confidence and win their trust. As any possible step by centre over Kashmir is more or less motivated by political interest than the public interest.

Therefore, need of the hour is to gain the confidence of the people of Kashmir. One possible way for that can be proper analysis, synthesis and implementation of the recommendations of various committees appointed by the centre for Kashmir which includes Padgaukar Committee, Daneshwar Committee Moreover, need is to appoint a committee which consists of experts from Kashmir along with experts from the Centre. As local experts would understand the pros and cons of the situation more easily than those of the non residents of Kashmir. The union needs to build peace in Kashmir by pieces. Any attempt to dilute the prevailing autonomous status of state in prevalent circumstances is not less than playing with fire. Results of such an attempt can be abysmal.

Tariq Ahmad Lone,M.Phil. Scholar at MMAJ Academy of International Studies, Jamia Millia Islamia

E-mail: [email protected]


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