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Sunday, July 25, 2021
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Article 370 and 35A : A History and it’s Revocation

Opinion piece. Written by Vanya Doval – a grade 8 student (going to 9).

Article 370 and 35A’s sudden scraping left everybody confused and in a tizzy as to what this article is and how it affects Kashmir’s socio-political landscape.

By I Kid You Not , in Facts to Know Opinion , at March 27, 2020 Tags: , , , , , ,

Opinion piece. Written by Vanya Doval – a grade 8 student (going to 9)

Article 370 and 35A’s sudden scraping left everybody confused and in a tizzy as to what this article is and how it affects Kashmir’s socio-political landscape. These article’s history dates back to the time of India’s independence in 1947.

After 200 years of colonial rule under the British, India was finally given freedom , however, it was conditional. The subcontinent was divided into two countries – India and Pakistan. At that time all of Hindustan was divided into several princely states. Princely states were semi -sovereign principalities ruled by the local or regional ruler . They were however, in a subsidiary alliance with the British that allowed the British Raj to interfere in the internal affairs of the states or issues that concerned the entire sub-continent when it deemed it necessary. At the time of British withdrawal, 565 princely states were officially recognized. One of these was Kashmir , ruled by Ranbir Singh’s grandson Hari Singh at the conclusion of the British rule and the subsequent partition of the British Indian Empire.

At Independence, each princely state was given the choice to either- join the Union of India or join the Republic of Pakistan. This choice was not a democratic process and was to be made by the Maharaja only. The Maharaja of Kashmir however refused to choose a country and wanted to stay independent.The people on the other hand were divided into Kashmiri Pandits- who wanted to join India and the majority and the Muslim population- who wanted to join Pakistan. A certain group of Muslims were extremely adamant to join Pakistan and hence began an uprising against their Hindu king in the western districts of Kashmir. Hari Singh lost control of the Poonch region and Pakistan’s Pashtun tribal militias crossed the border of the state. These local tribal militias moved to take Srinagar, but on reaching Baramulla they took to plunder and stalled. Maharaja Hari Singh , overwhelmed by all the violence, made a plea to India for assistance. Help was offered but it was subject to him signing the Instrument of Accession to India. Following the accession to India, troops were airlifted to Srinagar and the Indo-Pakistani war of 1947-1948 culminated. Indian troops, who regained control of Kashmir valley, Jammu and Ladakh soon after, began to move west.  As soon as Indian soldiers made gains towards the Poonch-West Punjab border, Pakistan openly mobilized its troops to assist the tribal militias that called themselves the “Azad Kashmir Army”. On 31st December 1948, the UN announced a formal ceasefire and the front that the Pakistani soldiers managed to solidify came to be known as the Line of Control (Loc). This line now serves as a de-facto border because the international border is still an unresolved dispute.The Kashmir that is now in Pakistan is only a sliver of the original kingdom. It is referred to as Pakistan occupied Kashmir (Pok) in India since according to the legally binding Instrument of Accession, “Azad Kashmir” is still a part of India that has temporarily been “occupied” by Pakistanis.

Now back to the Instrument of Accession. The Instrument of Accession that Maharaja Hari Singh signed was different from what the rulers of the other princely states signed. In Clause 5, he declared that the terms of the instrument were invariable and cannot be changed by amending any law/act etc. without the acceptance of the J&K legislature. In Clause 6 , he declared that the Union of India didn’t have any power to make laws in the state in terms of land acquisition and also specifically mentioned that the Union or citizens of the Union could not purchase land in Jammu and Kashmir, unless the law demanded so. In clause 7 he enumerated that the Maharaja did not have to accept the future Indian Constitution and the government of India could not force the Maharaja to do so. Clause 8 clearly stated that “nothing in this instrument affects the sovereignty”of the Maharaja. Meanwhile Clause 9 made it explicitly clear that he was signing the document on behalf of the state of Jammu and Kashmir. Therefore, it is clear that the government of India had acknowledged the Maharaja as a legal representative of the people of Jammu and Kashmir.

Hence through this instrument, Kashmir could make its own laws and have its own constitution, have its own flag and only its defence, external affairs and communications could be controlled by the government of India. After the signing of this legal document, it was accordingly incorporated into the newly independent India’s constitution. This article stipulated that the other articles that gave power to the Central Government in matters of other states, would be given to the constituent assembly in the case of Jammu and Kashmir. This article was supposed to be a “temporary” provision till J&K adopted the State’s constitution. However J&K’s state constituent assembly dissolved itself in 1957 without either repealing or amending Article 370. Thus, this article became a permanent feature of the Indian constitution. Article 370 in totality recognized the special status of the state of Jammu and Kashmir in terms of autonomy and its ability to formulate laws and the state’s permanent residents.

After Article 370 recognized J&K as a formal part of the Union of India , talks ensued to further the relationship of the state and union government. This culminated in the 1952 Delhi agreement , whereby the government of Jammu and Kashmir and the central government agreed that Indian citizenship would be empowered to legislate over the rights and privileges of the state subjects, who were referred to as “permanent residents”. Following the adoption of these provisions of the Delhi agreement, Article 35A was inserted into the Indian constitution, within article 370, enabling the State legislature to define the privileges of these permanent residents. A permanenet resident was anyone who was a state subject in 1954 or had been a resident of Jammu and Kashmir for over 10 years. These citizens were given special rights and privileges in public sector jobs, acquisition of property in the State , scholarships and other public aid and welfare. It also said that if a woman (who is a permanent resident) marries someone who is NOT a permanent resident then she and her children are considered “unfit” for inheritance and are not given any property. It also enumerated that a person who is not a permanent resident cannot buy land in J&K , work for the J&K government or attend a college run by J&K government funds. This article’s legality was questioned in Supreme Court after multiple petitions were filed against it.

On 5th August 2019, the Government of India revoked the special status of Jammu and Kashmir by scraping Article 370 in an attempt to enable the state to access government programmes such as reservation, right to education and right to information. The President of India, Ram Nath Kovind issued a Presidential Order , whereby all the provisions of the Indian Constitution are to apply to the State without any special provisions. This implies that the State’s separate constitution now stands inoperative , including the privileges sanctioned by Article 35A. This Presidential Order superseded the 1954 one that gave birth to Article 35A.  On 31st October, 2019, as planned by the NDA government the division of the state took place. Under the Jammu and Kashmir Reorganization Act,2019, which was passed by both houses of the Parliament of India, J&K was split into two union territories:

  1.  Jammu(Hindu majority) and Kashmir(Muslim majority)
  2. Ladakh ( Buddhist majority )

The government had several reasons to scrap Article 370. Prime Minister Narendra Modi and his party opposed Article 370 and revoking it was in the party’s 2019 agenda. They argue that it was necessary to integrate Kashmir and put it on the same footing as the rest of Kashmir. They believe that allowing non-Kashmiris to buy land will allow development to take place and boost the economy. They also oppose it as they feel it was only permanent because of the termination of the constituent assembly and hence it was illegal and unconstitutional before they repealed it. Article 35A has also garnered severe criticism over the years. Many feel it violates Article 14- equality before the law since non-Kashmiris don’t have the same rights as the permanent residents of J&K. They also argue that to add or amend any law you have to pass it through parliament and so the President, who bypassed the Parliament to incorporate Article 35A, violated correct procedure.

 Several people have supported this move and recognized it as one that unites , not divides India. Some anonymous person said,” The removal of Article 370 was necessary because any nation which believes in integration always grows more than the one that believes in disintegration. There will be things that have never ever been in the valley.” Let’s all hope this is true and the revocation has a positive effect of J&K’s future by providing opportunities and cultivating existing talent that has witnessed too much horror.

As Graham Greene once observed , “In Italy, for 30 years, under the Borgias , they had warfare, terror , murder and bloodshed- but they produced Michelangelo, Leonardo da Vinci and the Renaissance. In Switzerland, they have brotherly love, 500 years of democracy and peace,and what did they produce? The cuckoo clock.”

Written by Vanya Doval.
Vanya is an extremely well-read and politically aware student of grade 9. She loves to write on socio-political issues.

Please note: the views expressed in all opinion pieces belong to the writer. They do not reflect the opinions of the platform. I Kid You Not believes in giving a voice to today’s children, not matter what side of the debate they are on.

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