Article 370: Will Kashmiris Continue to Remain “Special”?

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Will Kashmiris Continue to Remain “Special” in India?

Article 370 provides autonomous status to Jammu and Kashmir, drafted in Constitution’s Part XXI.[/caption] The question whether Kashmiris will continue to remain “special” in India is revisited after a recent central ordinance that has extended reservations to both Scheduled Castes (SCs) and Scheduled Tribes (STs) in Jammu and Kashmir. This ordinance has put the spotlight on Article 35A and Article 370 (from which 35A has been derived). The recent central ordinance has shaken the regional political leadership and they have warned the Union Government against any attempt at diluting Article 35A. To discuss further on this issue it is important to check the constitutional articles – the parent provision Article 370 and its offshoot Article 35A. Let’s take a closer look.

Article 35A

This article empowers the Jammu and Kashmir legislature in defining the “permanent residents” of the state along with their special rights as well as privileges. Article 35A was introduced in 1954 through a Presidential Order. It was not present in the main body of the Constitution but in Appendix I. Consequently, though Indian citizenship is extended to all the residents of the state, it is only the “permanent residents” of the state who enjoy special rights in respect of acquisition of immovable property, government employment and scholarships.

Article 370

It provides autonomous status to Jammu and Kashmir, drafted in Constitution’s Part XXI. Article 370 stipulates that only two articles are applicable for J&K: Article 1 and Article 370. While Article 1 defines India as a Union of States, Article 370 says that other constitutional articles giving powers to the Central Government will be applicable for J&K only with the concurrence of Jammu and Kashmir’s constituent assembly. Article 370 was originally a “temporary provision” that was intended to last till J&K’s constitution is formulated and adopted. However, on January 25, 1957, the State's constituent assembly was dissolved without any recommendation on either amendment or abrogation of the Article 370, thereby making it a permanent feature of the Indian constitution. It has been confirmed by many Supreme Court and High Court rulings, the latest being in April 2018. However, some also say that the Article 370 can be deleted but with the concurrence of Jammu and Kashmir assembly.

Article 370 and the Issue of J&K Being an Integral Part of India

Article 3 of the Jammu and Kashmir Constitution declares J&K to be an integral part of India. It has been categorically acknowledged in the Preamble to the Constitution that the main objective of J&K Constitution is “to further define the existing relationship of the state with the Union of India as its integral part thereof. Moreover people of state are referred as ‘permanent residents’ not ‘citizens’.” Therefore, those people who argue about doing away with the Article 370 do so not for integrating J&K with India but for the sake of uniformity. Their argument of Article 370’s abrogation is more concerned with the issue of uniformity than integration.

What’s the Ruckus All About Regarding Article 35A and Article 370?

Lok Sabha Election 2019 has given Narendra Modi government a massive second mandate. Interestingly, Amit Shah has been given the Home Affairs portfolio. Shah is always known for his views of repealing the Articles 370 and 35A.

BJP’s Views

In their 2019 Lok Sabha election manifesto, BJP pinpointed Article 35A as an obstacle for the adequate development of Jammu and Kashmir.

BJP’s election manifesto of 2019 said:

“We reiterate our position since the time of the Jan Sangh to the abrogation of Article 370… We are committed to annulling Article 35A of the Constitution of India as the provision is discriminatory against non-permanent residents and women of Jammu and Kashmir. We believe that Article 35A is an obstacle in the development of the state. We will take all steps to ensure a safe and peaceful environment for all residents of the state. We will make all efforts to ensure the safe return of Kashmiri Pandits and we will provide financial assistance for the resettlement of refugees from West Pakistan, Pakistan-occupied Jammu and Kashmir (POJK) and Chhamb." They are of the opinion that Article 35A was inserted through Presidential Order and therefore can be struck down.

Views of the Valley

Leaders of the valley have largely opposed the idea of doing away with Article 370 and Article 35A. - Former IAS officer turned independent politician Shah Faesal (known for his moderate views) has counseled caution on the matter and called the political parties in the Valley to meet the PM in Delhi. - Farooq Abdullah (National Conference veteran) has said that Narendra Modi couldn’t remove the articles no matter how powerful he has become. - Both former Chief Ministers Omar Abdullah and Mehbooba Mufti have opined that tinkering with or abrogating Article 370 will render accession of Jammu & Kashmir with India invalid automatically. - Former separatist and BJP ally People's Conference chief Sajjad Lone publicly opposed all suggestions regarding review or a debate of the special provisions given to J&K by Articles 370 and 35A.

Will “Special” Status of Kashmiris be done away with?

Reports say BJP government at the Centre is currently exploring all possible options for bringing an end to the regional disparity and mobility to J&K, thereby promoting greater integration with the Union of India. They are checking the possibilities of setting up a Delimitation Commission (which Supreme Court has put a freeze on for the entire country till 2026) or take a view on Article 35A. Neither PM Narendra Modi nor newly appointed home minister Amit Shah has made any significant declaration on this issue. However, on May 26, newly appointed J&K BJP chief Ravinder Raina called on Delhi to fulfill the promises and wished for the early abrogation of both Article 370 and Article 35A. Analysts point out that abrogation of both the Articles is not that easy. If we check the last 5-years of Modi government, we’ll see that they have wavered on the issue. In fact, the Modi government in its first stint even failed to submit an affidavit to the Supreme Court stating their position on the contentious Article 35A. Even today, BJP at the centre remains indecisive on the issue. If we consider the proceedings in the past, it seems plausible that Modi 2.0 cabinet will hardly change its status quo on the “Special” status for the Kashmiris. Related Links: Should the Govt. Take a Step to Abolish the Article 370 or Not? Article 35A