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IS ARTICLE 35A WORTH A CONSIDERATION?

 

Today the environment in Kashmir is not the same what it used to be every day. It is much more than that and the various local political leaders are trying to relate induction of 25000 additional troops in the valley with that of likely tinkering with Art 35A and 370. The former chief minister of J&K, Omar Abdullah has presented an altogether different scenario by concluding that the Army and the Air Force have been alerted in the valley for something more serious than Art 35A. Though the movement of Air Force aircrafts have been termed routine but people are hell-bent on linking these activities with Art 35A.

Though there is a very strong feeling that Art 35A may be abrogated but Dr. Karan Singh, son of the last ruler of J&K  Maharaja Hari Singh, has cautioned the  Government of India to tread at it very cautiously.

He has admitted that “the accession of J&K to Indian dominion is final and irrevocable. Nowhere its existence is questioned. The accession has been confirmed and validated by the J&K Constituent Assembly which lies dissolved, so there can be no questions asked about its veracity. Legally, morally and constitutionally, the state is part of the Indian sovereign.”  However, the issue of, the articles in question, is not that simple, as there are legal, political, constitutional and emotional factors involved in it.

As per him, “Maharaja Hari Singh signed Instrument of Accession on merely three issues which they surrendered to India, which was defence, external affairs, and communications with an assurance that the people of Jammu and Kashmir through their own constituent Assembly would draft their own constitution. As a result, the J&K Constitution made by the State Constituent Assembly became law on January 26, 1957”. It was that time that Art 35A and 370 came into being and they cannot be changed without approval of the J&K Constituent Assembly which has since been dissolved.

What was more relevant was that Maharaja Hari Singh had two very specific clauses which read, “The terms of this my Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947, unless such amendment is accepted by me by an Instrument supplementary to this Instrument.”

Dr. Karan Singh has also felt that these are not mere Articles but he feels that there are certain critical dimensions to this problem. India was responsible for defence of the state but it has lost almost 45 percent of the original state’s area and 30 percent of its population to Pakistan and China.  We may live in denial and talk of Pakistan administered Kashmir, but there is also Gilgit, Baltistan, and the Northern Territories, the largely inhabited Aksai Chin and Shaksgam and Yarkand River Valleys which run adjacent to the Trans Karakoram Tract which has been lopped off.

The most important point of the instrument of accession was that its ruler and formal head Hari Singh decided and declared that the state of Jammu and Kashmir accede to the ‘Dominion of India’ with a clear result that from here on “governor-general of India, the dominion legislature, the federal court and any other dominion authority established for the purposes of the dominion” would be legally authorised to carry out any function in respect to the state of Jammu and Kashmir, as vested in them by or under the Government of India Act, 1935.

As per Sardar Patel, Instrument of Accession was the final basis of India-Kashmir relationship. However, as per Delhi Agreement, as it came up before the Council of State on August 5, 1952, Gopalaswami Ayyangar stated that Article 370 was not a permanent feature of the Indian Constitution and ‘when the time was ripe’, this provision could be removed from the Constitution. Also, Article 35A was inserted through Presidential Decree and hence can be changed by a fresh one (it was inserted through the Constitution (Application to Jammu and Kashmir) Order, 1954, which was issued by President Rajendra Prasad under Article 370, on the advice of the Nehru-led Union Government).

But before that change takes, another important dimension that needs to be seen in the correct perspective is the regional aspirations of various stakeholders.  Jammu, Kashmir Valley and Ladakh all three with distinct linguistic and geographical divisions need to be considered carefully. Unfortunately, even after the passage of 72 years, there is certain lack of cohesion between the people of these regions and that is being exploited very effectively by the neighbours and various other inimical agencies the world over.     

From the foothills of Jammu right up to the heights of Gilgit, Ladakh, Kargil, the inhospitable terrain of Siachen and Saltoro Ridge right down to the wasteland of Aksai China, used to be the part of Dogra Empire, a dynasty which ruled for 100 years. It was a remarkable state and was kept unified by the Sikhs and Dogras. However, after the accession things have changed drastically with people getting influenced by different ideologies and other requirements.

Viewpoint

There is no doubt in the mind of India about the status of Jammu & Kashmir as the instrument of accession is irrevocable. But over the period Jammu & Kashmir has not been the same as it was at the time of accession. Besides losing out on huge parts and the population it has also lost out on the belief and the thoughts of many generations. India may blame anyone for that but till that is addressed, any change to the Articles with whatever dividend it may pay is not advisable. Mere abrogation of Art 35A may not be sufficient to clean the images of the bloodbath in Kashmir, countless tombstones of youths, killings of Kashmiri Pandits, their unhygienic camps and the people living along the border under constant fear of being bombed and killed.  

02 Aug 19/Friday                                                   Written by Azadazraq

 

 

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