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Articles 370 & 35A

By Muhammad Farooq Rehmani
Like every politically conscious and sensitive nation, Kashmir has been brought up in the lap of nationalism and India’s independence leaders and constitutional experts in order to appease them, called it their sub nationalism. During days of Pakistan movement zealous religious campaign in the sub continent and proclamation of Pakistan and India as two independent and sovereign states, the majority of Jammu and Kashmir showed tendency towards Pakistan or an independent state. But, Indian leadership’s successful political and military crackdown and maneuvering, aerial invasion coupled with Lord Mount Baton’s total support, won the jewel of Kashmir for Delhi. Sheikh Abdullah and his National Conference played decisive role and then Hindu Ruler of the State Hari Singh despite his other leanings is believed to have written a provisional instrument of accession to the Governor General of India. However, India took the armed intervention of Western tribes men against Pakistan to the UN Security Council, which adopted numerous resolutions of peace and plebiscite to ascertain wishes of the State people on their future affiliation with Pakistan or India. Since ceasefire of 1948 between Pakistan and India, the people of this State have been offering great sacrifices of life,honour ,property and birth place from jammu to Kargil. Sheikh Abdullah and his comrades who had supported and endorsed accession to India in 1947, later disillusioned with it and led a vigorous campaign for plebiscite in Jk in and outside of jails from 1953 to 1975, when in 1975, he and his colleagues again embraced power under Beig-Parthasarthy agreement in Delhi. They were reassured of continuity of Article 370 , which otherwise comes under heading of temporary articles of the Indian constitution.

The powerful freedom movement of Jammu and Kashmir never in history showed any love for this special provision of the Indian constitution, rather freedom fighters passed ridiculous remarks on it and everytime raised quit India slogans. Today it has become hallmark of struggle against India in the State. Rather 370 has become synonymous with freedom and independence for all and sundry in length and breadth of the State. After all what’s is the significance of Article 370 and 35A? How and why it suddenly ascended to such popularity and speciality among the people of JK from Jammu to Kargil, when it doesn’t grant the right to freedom and independence. But, at least these abolished articles of the Indian Constitution ensured hundreds of years old religious and cultural demographic character of JK , which otherwise can be destroyed by Hindutva aggressive campaign of the Indian BJP. Given lynching methods of the RSS under the Modi regime, many ethnic groups in India such as Dalits, Sikhs, Christians and others support and share concern and demands of the people of JK, who endure and resist the worst ever lockdown and curfew of the history of jammu and Kashmir. I have tried to study and analyse in depth Indian and Kashmiri writers on the subject. I studied views of a Kashmiri writer MK Teng on political and constitutional crisis and Article 370 and summarized their writings on the subject.
Basic analytical study of 370 and 35 A, signifies that when Maharaja Hari Sing acceded to India on 26 October 1947, he ceded to the Indian Government , powers with regard to the subjects, the other states had delegated to India. The subjects were listed in the schedule attached to the so called Instrument of Accession and included:
1) Defense 2) External affairs 3)Communications 4) Election to the Indian legislature
The State was reserved powers in regard to all the residuary subjects & the terms of the Instrument of Accession were not to be altered by any subsequent amendment of the Indian Independence Act, unless such an amendment was accepted by the Ruler of the State by a supplementary Instrument.
Hari Singh didn’t commit himself to accept any future constitution of India.However he reserved the right to enter into agreements with the GOI under any future constitution of India.”
The NC leaders while supporting the Accession with India presumed that with the lapse of the British Paramountcy the prescriptions which had been imposed by the British Crown on the sovereignty of the State had terminated. To that extent the Conference leaders reiterated the stipulations of the Cabinet Mission Plan , which underlined restoration of sovereignty to the states after the paramountcy was withdrawn. An important issue stressed by the NC leaders was that they refused to accept the secular integration of the State in India. They claimed that the J&KState was a Muslim majority State and as such could be placed in the Indian political organisation on the basis of communal balance, as a separate and autonomous political entity…”. M.K.Teng
In this state of affairs and after the ceasefire between India and Pakistan, Sheikh Mohammed Abdullah the PM, in an interview with an English newspaper paper, Scottsman” pleaded for independence of the State from both India and Pakistan to live in peace and friendship with both of them.
In May 1949, Delhi Conference was held between the Indian and NC leaders. Here the Kashmiri leaders refused to accept the inclusion of the State in the territorial jurisdiction and constitutional organisation of India. Furthermore the NC leaders expressed strong reservations about the transfer of the State army to the Union and demanded the restoration of the State army to the interm Government of Sheikh Abdullah.
Thus the leadership & the interm Government of the NC underlined the following bases for the constitutional organisation of the State & its constitutional relations with India:
1) A separate constituent Assembly for the State,
2)Abolition of Dogra Dynasty rule,
3) Transferring of powers to the Interm Government ,
4) Constitutional relations be stipulated by the Instrument of Accession, subject to modifications by the Interim Government;
5) The residuary powers would be vested with the State Government;
6) the provisions of the Constitution of India except the stipulations of the Instrument of Accession would not apply to JK;
7) the control over the State army would be restored to the State Government;
8) the existing financial relations between the State and the GOI would continue.
The Indian Government didn’t approve of the position taken by the NC leaders but Nehru the PM of India pleaded for the formulation of a uniform Bill of rights for all the people in India, including the people of the J&K.
The Indian Government didn’t accept the contention of the NC leaders in regard to the State army and an agreement was finally reached between them which among other things envisaged that the President of India would be vested with the powers to modify or terminate the operation of the specific provisions of the Constitution of India in regard to the Jammu and Kashmir State, on the recommendations of the Constituent Assembly of the State.
But a day after the Delhi Conference Sheikh Mohammed Abdullah raised issues & sought fresh clarification from the Indian leaders which included among other things the control of the State Forces & rights of the citizens for service in the State army. Indian authorities claim ” the NC leaders including Sheikh Mohammad Abdullah, Mirza Afzal Beg &Maulana Masoodi who had negotiated the agreement with the central leaders in May at Delhi, tacitly agreed with the views that the State should not be brought within the territorial jurisdiction of the proposed Union of India or its constitutional organisation & the Muslim majority character of the State should form the basis of the relations between the State and India. ” They evolved fresh proposals and decided to repudiate the May agreement with Delhi. But didn’t apprise the central leaders of their views till the draft provisions of the Constitution of India were drawn up & sent to the Conference leaders for their approval. The draft provisions were enshrined in draft Article 306 A of the Constitution of India. The Article stipulated among other things that the President of India would be empowered to modify, restrict or suspend the operation of the provisions of Article 306-A,on the recommendations made by the the Constituent Assembly of Jammu and Kashmir State(vi).” The working Committee of the NC in several sessions examined the draft, refused to approve, and disapproved of the preamble to Article 306-A, which stipulated that the provisions of the Article would be of a transitional nature & would be subject to modification by the Constituent Assembly of the State. On October 12,1949,Sheikh Abdullah communicated to Gopalaswami Ayanger the decisions of the Working Committee. This time Nehru was away in the USA to deal with the problem at the Security Council,when Ayangar redrafted the provisions of the Article 306A, restricting the application of the Constitution of India to the State to Article 1,which defined the territories of the Union, and Indian citizenship.But the revised draft of Article 306 A was also rejected by Sheikh Abdullah and his colleagues. He sent an alternative draft to Ayangar. Again a fresh draft in consultation with Afzal Beg was drafted by Ayangar .The revised draft of Article 306-A was circulated in the Constituent Assembly on 16 October, 1949. Many members of the Constituent Assembly objected to the explanation defining the Government of the State. Ayangar modified the explanation & informed the Conference leaders about the modifications in the explanation on the morning of 17 October 1949. The Conference leaders refused to approve of the modification Ayangar had made. Unable to bring round the Conference leaders, Ayangar presented the draft Article 306-A to the Constituent Assembly for its consideration. The Conference leaders sulked away, joined the debate only after Ayangar’s half of the speech with grim silence. The NC leaders didn’t rise to speak & didn’t move any amendment to the draft. They had been provided opportunity for it by the House.The draft was adopted by the Assembly without any dissent. The NC leaders were bitter at the turn the events had taken and Ayangar was sore at the treatment he got from the Conference leaders. They exchanged letters of complaints and grievances from each other. However, at the revision stage, Article 306-A was renumbered Article 370 of the Constitution of India . On 25 November, 1949,the Regent of the State, Karan Singh, by a proclamation ordered that the relations between the State and the Union of India be governed by the Constitution of India. It superseded & abrogated all other constitutional provisions inconsistent with it which were in force in the State. On 26 January 1950, the Constitution of India came into force.
In accordance with the special provisions embodied in Article 370 of the Constitution of India, the J&K State was exempted from the application of the provisions of the Constitution of India dealing with the States in Part B of its First Schedule. No other provisions of the Constitution of India except Article 1was made applicable to J&K. An interesting aspect of the Article 370was that it envisaged a perpetual Constituent Assembly in the State, at least so long as the transitional provisions remained on the Statute Book. Article 370 is the basis of the Article 35 A. Both have been repealed and abolished on 5 August, 2019, by the Parliament under the Modi regime with malicious intent to change the Muslim majority character of the occupied State. Kashmir history’s dark lockdown and curfew has been clamped on the inhabitants of the occupied region which seems unending and brutal. Let us examine the abolished Article 35 A :-

“Article 35A of the Indian Constitution was an article that empowered the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India on 14 May 1954, under Article 370. The state of Jammu and Kashmir defined these privileges to include the ability to purchase land and unmovable property, ability to vote and contest elections, seeking government employment and availing other state benefits such as higher education and health care. Non-permanent residents of the state, even if Indian citizens, were not entitled to these ‘privileges’.

On 5 August 2019, the President of India issued a Presidential Order, whereby all the provisions of the Indian Constitution are to apply to the State without any special provisions. This would imply that the State’s separate Constitution stands abrogated, including the privileges allowed by the Article 35A. By abolishing the special provisions, India has not only violated it’s own Constitution but the President’s order is a gross and flagrant violation of the international resolutions and pledges of plebiscite with the Kashmiris during the past 70 years. The Modi regime has committed a heinous crime by resorting to worst type of lockdown and curfew against 8 million people. It deserves international punishment for crimes and crisis in Jammu, Kashmir, Kargil and Ladakh for war against humanity. The world should act before it is too late.

Note:I hope you all friends to study it and give your opinion on the subject.

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