Srinagar: Political parties in Kashmir have not only warned of agitation over the abrogation of Article 35A that bars people from outside to own properties in Kashmir but maintain that New Delhi will lose the legal validity to call Jammu and Kashmir as an integral part of India if it is revoked.
While some legal experts in Srinagar have opined that scrapping Article 35A will not only make the Presidential Order of 1954 – through which it was made part of the Indian Constitution – irrelevant, it would also affect other previous orders. The National Conference (NC) and Peoples Democratic Party (PDP) have also stiffened their stand over the issue.
Former chief minister and NC working president Omar Abdullah has said that the abrogation of Article 35A will raise a debate on the validity of accession with the Indian Union. Chief Minister Mehbooba Mufti has gone a step forward by declaring that there will no one left to hoist the Indian flag in Kashmir if the powers of the state to limit the state subjects' rights are abolished.
The issue has clearly drifted the mainstream political parties towards an extreme position, with former Union Minister and Congress leader Safiduin Soz saying that Hurriyat and mainstream parties were on the same page over the issue. Similarly, Independent MLA Er Rashid supported the call given by the separatists on 12 August against the moves to scrap Article 35A.
Former MLA and senior PDP leader Nizamuddin Bhat also said that the legal validity of the instrument of accession could be challenged in case Article 35A was revoked. "The relationship of Jammu and Kashmir with the Union of India is based on the instrument of accession. By virtue of the instrument of accession, Article 370 was brought as a temporary provision. Article 370 gave the instrument of accession Constitutional validity. The same was ratified by the Constituent Assembly of Jammu and Kashmir. So there is a sequence. Because of Article 370, Article 35A became a necessity. Once that scheme is disturbed, the state Assembly is overridden... If Article 35A and Article 370 are scrapped, the instrument of accession doesn’t enjoy any Constitutional backing," Bhat said.
He added that the instrument of accession will "legally become null and void and remain only a political agreement... The political agreement can be done away with by anybody."
Till the time Maharaja Hari Singh had remained indecisive about the accession of the state with the Indian Union, Jammu and Kashmir was an independent country.
Mufti, who met former chief minister and NC president Farooq Abdullah on Tuesday, has vowed a united fight with the Opposition to resist any moves to abrogate Article 35A. Mufti’s assertion that the Indian flag in Kashmir won't be hoisted is seen to be referring to the agreement that was signed by Farooq's father Sheikh Abdullah and Prime Minister Jawaharlal Nehru in 1952, called the Delhi Agreement.
It is believed to have been signed by Sheikh under pressure from the central government. Under the Delhi Agreement, the Jammu and Kashmir Constituent Assembly held that sovereignty in all matters other than those specified in the instrument of accession continues to reside in the state and the state legislature was given the power to make laws for conferring special rights and privileges on the state subjects. Under this
Under this agreement, the Union government agreed that the state should have its own flag in addition to the Union flag, but it was agreed by the state government that the state flag would not be a rival of the Union flag. "It was also recognised that the Union flag should have the same status and position in Jammu and Kashmir as in the rest of India, but for historical reasons connected with the freedom struggle in the state, the need for continuance of the state flag was recognised," read the Delhi Agreement.
Political commentator Noor Mohammad Baba said that the Delhi Agreement was signed under compulsion by Sheikh. "From the very beginning, there was a pressure on the state government to concede on more things like citizenship, fundamental rights as well as extending the jurisdiction of the President of India. Before 1952, only the state flag was hoisted. The compromise was what is known as the Delhi Agreement," he said.
Subsequent to the Delhi Agreement, under the Constitutional application order, 1954, issued by the President, the right of the state legislative assembly to make state subject laws by the vote of not less than two-third majority of the legislative assembly was recognised. However, legal expert Sheikh Showkat said that in case Article 35A was scrapped, the constitutional applicability of other Presidential Orders, which have been extended to the state of Jammu and Kashmir, could also be challenged.
"The argument has been raised challenging the validity of the constitutional order 1954 that it should have been passed by the Parliament. But that error is with all the orders. All the Presidential Orders which have been extended to the state have not been passed by the Parliament, but they were issued by the President with the concurrence of the state government."
"As the constitutional application orders are challenged, the Supreme Court jurisdiction will not be extended to the state and a passport will be required for people to travel to Jammu and Kashmir," Showkat said.
While the 1954 Presidential Order gave the legal sanctity to Article 35A, the 1950 Order specified the subjects and articles of the Indian Constitution that corresponded to the Instrument of Accession as required by Article 370. The 1950 order restricted the role of the Parliament to make laws with respect to the matters that were enshrined in the instrument of accession and were specified in Schedule I and II of the Constitutional Order.
As per the instrument of accession, which was signed by the Maharaja Singh and the Indian Union, the Parliament had the powers to make the laws in respect of defence, communication and external affairs only. "Nothing in this Instrument shall be deemed to commit in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into agreement with the Government of India under any such future constitution. Nothing in this Instrument affects the continuance of my Sovereignty in and over this State, or, save as provided by or under this Instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State,’’ reads the instrument of accession signed by Maharaja Singh.
Former minister and National Conference provincial president Nasir Aslam Wani said, there "is a section of opinion that if Article 35A goes, all previous orders will get nullified. There is a difference of agreement over this. If Article 370 is removed then the questions will be raised on the accession of the state."
Legal experts see Article 370 as the ratification of the instrument of accession as it enumerates that the power of the Parliament to make laws for the state of Jammu and Kashmir shall be restricted to those matters in the union list and the concurrent list which, in consultation with the government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the state to the Dominion of India.
Published Date: Aug 10, 2017 06:30 am | Updated Date: Aug 10, 2017 06:31 am