Till recently, Article 370 of the Indian Constitution was the bone of contention and its repeal was one of the three major agendas of the BJP, along with building a Ram temple in Ayodhya and bringing in a common civil code. All of a sudden, however, Article 35A has sprung up on the table and has quickly become even more controversial than Article 370. The demand to repeal it has touched off a storm in the Kashmir Valley and has united fierce rivals like the People’s Democratic Party and the National Conference.
Surprisingly, Article 35A is not even found anywhere in the body of the Constitution, because it is an extra-constitutional article, brought in through a Presidential Order, as The Constitution (Application to Jammu and Kashmir) Order, 1954. So, it is debatable how a Presidential Order has come to acquire the status of an Article of the Constitution.
Union Home Minister Rajnath Singh has tried to calm the tense atmosphere in the Valley by assuring Kashmiris publicly that the Centre would not do anything that hurts the sentiments of Jammu and Kashmir. However, the question pertaining to Article 35A is pending before the apex court, which has to adjudicate its constitutionality. So, it is not for the Union government to take a call on this.
Besides, the opposition to any proposal to repeal this article comes from the Kashmir Valley only, whereas people outside the Valley feel that the special status of the state must be done away with for its complete integration with India. Article 35A empowers the legislature of Jammu and Kashmir to define “Permanent Residents” (PR) of the state and provides special rights and privileges to them.
However, its application was subject to a proviso that “no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by the order of the President under clause (1) of Article 370”. So, the amendment will apply to the state only after the President issues an order under Article 370(1), but does not circumscribe or bypass Article 368, which provides for amendment.
Article 370(3) provides that the President may, by public notification, declare that this Article shall cease to be operative or may be operative only with such exceptions and modifications and from such date as he may specify. But that can be done only on the recommendation of the Constituent Assembly of Jammu and Kashmir. But Article 370(3) became obsolete after January 26, 1957 when a new constitution was enforced in the state and the Constituent Assembly ceased to exist.
Article 35A provides that no existing law in force in Jammu and Kashmir, and no law hereafter enacted by the legislature of the state defining the classes of persons who are, or shall be, permanent residents of the state, or conferring on such PRs any special rights and privileges or imposing upon other persons any restrictions with respect to employment under the state government, acquisition of immovable property in the state, settlement in the state, or right to scholarship and such other forms of aid as the state government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part.
It is discriminatory as Section 6 of the J&K Constitution curtails the freedom of women to marry men of their choice by not giving the heirs any right to property if the woman marries a man not holding the PR certificate. Her children are denied a PR certificate, rendering them non-residents even though she is a permanent resident of the state. Ironically, the woman also forfeits her property rights. However, it does not apply to a man marrying a woman from outside J&K.
The problem is that the integration of the state with the country is still not complete, even though Article 370 was incorporated into the Constitution as a temporary provision. Like all other princely states, Maharaja Hari Singh of Jammu and Kashmir also signed the Instrument of Accession, and that is the basis of the state becoming part of India. But National Conference leader Sheikh Abdullah was able to extract certain concessions. Jammu and Ladakh wanted full integration, so much so that when Karan Singh, after assuming the office of Sadar-i-Riyasat, went to Jammu, he was shown black flags everywhere by Dogras who felt outraged at his acceptance of the office.
As Singh has recorded in his autobiography, “In sharp and poignant contrast to the earlier occasions after my return from America and my marriage, when the people of Jammu gave me an enthusiastic and affectionate welcome, this time there were derisive and hostile slogans, and the city, from the airport right up to the palace gates, was a sea of black flags…It reflected the widespread agitation launched by the Praja Parishad on 14 November (1952) against Sheikh Abdullah. Their slogan of complete integration of the state with India was expressed in the rallying cry ‘Ek vidhan, ek nishan, ek pradhan’ (one constitution, one flag and one president)”.
Sheikh Abdullah initiated a debate within the National Conference Working Committee regarding the contours of the relationship with India. But even his own party was not united on what it wanted, with one group, led by MA Beg, strongly asserting that the relationship should be strictly confined to three subjects contained in the Instrument of Accession, while the other, led by Bakshi Ghulam Mohammad, G L Dogra and D P Dhar favoured a more comprehensive relationship, comprising other vital areas like the judiciary, financial arrangements and so on.
According to Karan Singh, “While the Sheikh ostensibly tried to keep himself above the controversy for some time, he increasingly began throwing his weight in favour of the hardliners. It was this development, even more than the Jammu agitation, that began to disturb Jawaharlal.”