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Constitutional Rights in Kashmir are Worth Defending

How many people in Kashmir know how Article 35 A, about which they are raising such a hue and cry, 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 to 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 defense, 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 J & K within the Indian Union. Article 370 stipulates that New Delhi can legislate on the subjects of defense, foreign affairs, and communications only in just and equitable consultation with the government of the state of J & K, and can intervene on other subjects only with the consent of the J & K Assembly.

The purportedly autonomous status of Jammu and Kashmir 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 organizations 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 centralized and authoritarian state. The unequivocal aim of the supporters of the integration of  J & K 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, J & K 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 J & K 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 J & K courts. The delegation was also careful to prevent the financial and fiscal integration of the state with the Indian Union.

The representatives of the J & K 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 in the center. 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 J & K.

The State Subject, later Permanent Resident Law, was promulgated in J & K on 20 April 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 14 May 1957. On 25 March 1969, the state government issued an injunction requiring deputy commissioners to issue certificates of permanent residence to women of J & K (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 J & K’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 J & K with India.

Article 35-A evolved with agreement between the Government of J & K 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 J & K 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 centralization).

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-Musharaf 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 J & K 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.

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Nyla Ali Khan 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 an 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.

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