Kashmiris constitutional rights are worth defending
How
many people in Kashmir know about Article 35-A, over which a lot of hue and cry
has been raised, came into being? Do they know what a difficult task it was to
get it incorporated into the Constitution of India and then implemented?
Several of my readers in mainland India and Pakistan as well don’t know enough
about Article 35-A and why the people of Kashmir have taken to the streets to
protest any attempt from the Federal Indian government to alter or abrogate
this Article.
In
October 1949, the Constituent Assembly of India reinforced the stipulation that
New Delhi’s jurisdiction in the state would remain limited to the categories of
defence, foreign affairs, and communications, as underlined in the Instrument
of Accession. This stipulation was provisional and its final status would be
decided upon the resolution of the Kashmir issue. Subsequent to India
acquiring the status of a Republic in 1950, this constitutional provision
enabled the incorporation of Article 370 into the Indian Constitution, which
ratified the autonomous status of Jammu and Kashmir (JK) within the Indian
Union. Article 370 stipulates that New Delhi can legislate on the subjects of
defence, foreign affairs, and communications only in just and equitable
consultation with the government of the state of JK, and can intervene on other
subjects only with the consent of the JK Assembly.
The representatives of the JK government ruled
out any modifications to their land reforms program, which had dispossessed the
feudal class without any right to claim compensation. It was also agreed that
as opposed to the other units in the Union, the residual powers of legislation
would be vested in the state assembly instead of the centre
The
purportedly autonomous status of JK provoked the ire of ultra-right-wing
nationalist parties, which sought the unequivocal integration of the state into
the Indian union. The unitary concept of nationalism that such organisations
subscribed to challenged the basic principle that the nation was founded on:
democracy. In this nationalist project, one of the forms that the nullification
of past and present histories takes is the subjection of religious minorities
to a centralised and authoritarian state. The unequivocal aim of the supporters
of the integration of JK into the Indian union was to expunge the political
autonomy endowed on the State by India’s constitutional provisions. According
to the unitary discourse of sovereignty disseminated by ultra-right-wing
nationalists, JK wasn’t entitled to the signifiers of statehood.
As
I observe in my book, Islam, Women, and Violence in Kashmir (New
York: Palgrave Macmillan, 2010):
The
negotiations in June and July 1952 between a delegation of the J&K
government led by Sheikh Mohammad Abdullah and Mirza Afzal Beg, and a
delegation of the Indian government led by Nehru resulted in the Delhi
Agreement, which maintained the position on the autonomous status of J&K.
In his public speech made on 11 August, Sheikh Abdullah declared that his aim
had been to preserve “maximum autonomy for the local organs of state power,
while discharging obligations as a unit of the [Indian] Union.”
At
the talks held between the representatives of the state government and the
Indian government, the Kashmiri delegation relented on just one issue: it
conceded the extension of the Indian Supreme Court’s arbitrating jurisdiction
to the state in case of disputes between the federal government and the state
government or between JK and another state of the Indian Union. But the
Kashmiri delegation shrewdly disallowed an extension of the Indian Supreme
Court’s purview to the state as the ultimate arbitrator in all civil and
criminal cases before JK courts. The delegation was also careful to prevent the
financial and fiscal integration of the state with the Indian Union.
The
representatives of the JK government ruled out any modifications to their land
reform program, which had dispossessed the feudal class without any right to
claim compensation. It was also agreed that as opposed to the other units in
the Union, the residual powers of legislation would be vested in the state
assembly instead of the centre. The political logic of autonomy was
necessitated by the need to bring about socioeconomic transformations, and so
needs to be retained in its original form.
The
autonomy of the state within the Indian Union had been proclaimed in 1950 by a
constitutional order formally issued in the name of the President of India.
The
Delhi Agreement of 1952 enabled the incorporation of Article 35-A into the
Constitution of India, which gives the legislature of the State the power to
protect the rights and privileges of Permanent Residents of JK.
The
State Subject, later Permanent Resident Law, was promulgated in JK on April 20,
1927 by Maharaja Hari Singh. This injunction was meant to protect the interests
of the local landed class and the peasantry against wealthy people from outside
the state who had the wherewithal to buy the locals out of hearth and home. In
1957, the new constitution of the state changed “state subject” to “permanent
resident,” and permanent resident status was accorded to individuals who had
been living in the state for at least a decade before May 14, 1957. On March
25, 1969, the state government issued an injunction requiring deputy
commissioners to issue certificates of permanent residence to JK’s women
(Kashmiri, Dogra, Ladakhi and Gujjar), with the stipulation that the status was
valid only till marriage. After that, women who married permanent resident men
would need to get their certificates re-issued.
Any
suggestions of arbitrarily altering Article 35-A, which is the basis of JK’s
relationship with India, would only further constitute a terrible breach of the
spirit and letter of the Constitution of India. And it, in all likelihood, will
invite serious consequences for the association of JK with India.
Article
35-A evolved with agreement between the Government of JK and the Government of
India. It remains as valid today as it was when the Constitution of India was
framed, and unsubstantiated reasons provided to have this altered are
completely devoid of substance.
In
making this arrangement with the Delhi Agreement of 1952, the main
consideration before the Government of JK was to ensure a position for the
State which would be consistent with the requirements of maximum autonomy for
the local bodies of State Power, which should remain the ultimate source of
authority in the State, while discharging obligations as a unit of the
Federation (without centralisation).
As
I’ve pointed out on other forums, a dozen or more summit conferences have been
held between the government heads of India and Pakistan toward the resolution
of the Kashmir problem, from Nehru-Liaquat to Vajpayee-Musharraf meetings,
laced in between with Soviet-American interventions, and a series of meetings
between foreign ministers Swaran Singh and Zulfikar Ali Bhutto, but nothing
worth reporting was ever achieved, primarily because the people of JK were
never made a part of these parleys. The only silver lining to this huge cloud
of failures was the signing of the 1952 Delhi Agreement, signed between two
elected prime ministers, Nehru and Abdullah. As a viable beginning to a lasting
resolution, it is high time that 1952 Delhi Agreement is returned to in letter
and spirit.
The
writer is the author of Fiction of Nationality in an Era of Transnationalism,
Islam, Women, and Violence in Kashmir, The Life of a Kashmiri Woman, and the
editor of The Parchment of Kashmir. Nyla Ali Khan has also served as guest
editor working on articles from the Jammu and Kashmir region for Oxford
University Press (New York), helping to identify, commission, and review
articles. She can be reached at nylakhan@aol.com
Published
in Daily Times, August 7th 2018.
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