BJP president Amit Shah's aggressive speech in Jammu on Saturday brought the focus back on special powers for the state of Jammu and Kashmir. The most important of these is Article 35-A of the Indian Constitution.
Article 35-A basically reiterates the gist of Maharaja Hari Singh's 1927 proclamation, through which jobs and education could only be provided by the government of the state to 'state subjects' — those who could prove that their forebears lived in the state when Maharaja Gulab Singh, the founder of the Dogra dynasty, ruled.
A challenge to the validity of the presidential order through which it was inserted into the Constitution, without reference to Parliament, is before the Supreme Court. The matter is expected to be taken up next on 16 August.
Article 35-A was inserted in 1954 under the provision of Article 370 (1)(d) of the Constitution, which allows the president to make “exceptions and modifications” to the Constitution for the benefit of 'state subjects' of Jammu and Kashmir.
Questions have been raised over whether 35-A is a 'modification' or a new provision, whether it should have been discussed by Parliament before the president issued the order, and whether Article 370 should remain at all.
Article 370 mandated that laws passed by Parliament, and portions of the Indian Constitution, would only apply to the state after the state's constituent assembly had approved them. Article 370 was specifically meant to be 'temporary', but remains on the statute sixty years after the constituent assembly's term ended in 1957, and the state constitution took effect on 26 January, 1958.
The result is that many central laws are applied to the state in modified form. For instance, the state Assembly has a six-year term, the RTI law has been weaker than elsewhere, and a version of the infamous MISA law of the Emergency remains in force in the state as the Public Safety Act.
Article 370 and 35-A have been a shibboleth for state-based parties, which insist that it must remain on the statute. National Conference leader Omar Abdullah has even stated that the state’s accession to India hinges on it.
On the other hand, its removal was a part of the BJP's 2014 manifesto, although this objective was put aside under the terms of the agenda of alliance when the PDP-BJP coalition was formed.
Article 35-A is more crucial in terms of Kashmiris' sense of separate identity. The rhetoric of both sides has until recently remained focused on the enabling provision, Article 370, largely because that was the main theme of Syama Prasad Mookerjee. Article 35-A was only inserted the year after Mookerjee died.
Mookerjee was the founder of the Bharatiya Jana Sangh (BJS), which was backed by the RSS. The party was formed in 1951, primarily to oppose the special provisions for Jammu and Kashmir. He had resigned from Nehru's first cabinet in 1950, to launch a Hindutva-based political party backed by the RSS.
The entire issue has come into public focus on Saturday since Amit Shah chose to launch his party's agenda for the next elections on Mookerjee's death anniversary.
Mookerjee’s death had generated a wave of horror across the country. To press his nascent party’s agenda, he had marched across the state border in defiance of the permit that was then required by the state government. Mookerjee maintained that the permit was a form of visa, and that it underlined that the state was not a full and permanent part of India. He was ready to defy the law and go to jail to press his point.
A few days after he was jailed, Mookerjee fell ill and died in jail. That has always been an issue in the minds of Hindutva activists, who hold — as Shah publicly stated on Saturday — that he was poisoned.
Updated Date: Jun 24, 2018 10:46 AM