Home South Asia India Article 35-A: Court’s move could be problematic for Indo-Pak relations

Article 35-A: Court’s move could be problematic for Indo-Pak relations

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News Analysis |

A three-judge bench of the Indian Supreme Court (SC) comprising Chief Justice of India Dipak Misra, and Justices AM Khanwilkar and DY Chandrachud, is currently hearing a batch of petitions challenging the constitutional validity of Article 35A. This Article in the Constitution empowers the Jammu & Kashmir (J&K) legislative assembly to define who is classified as a permanent resident of J&K, and confer rights and privileges upon them while excluding any person from all other states from such benefits.

At the time of the making of the Article, it was agreed that the constitutional status of J&K as a unit of the Indian federation would involve granting special concessions to it; one such special concession that was agreed upon was certain immunity to the permanent residents of J&K. These meant that these permanent residents of J&K would be considered as citizens of India, and have special rights at the same time, which would be determined by the state legislature by means of law.

The relations between the two countries have been in a downward spiral since massive protests for independence in IOK that have been met with brutal Indian repression.

It has been contended by the petitioners that the said order was not made a law by the Parliament and amounts to the amendment to the Constitution by the President which he has no power to do so. The petitions have unleashed a storm in political circles throughout India, Indian Occupied Kashmir and Pakistan.

Kashmiri Independence leaders on Friday deferred the two-day strike to protest against any tinkering with Article 35A of the Constitution to August 30 as the case has been listed for hearing on 31 August in the Supreme Court. Joint Resistance Leadership (JRL), consisting of Syed Ali Shah Geelani, Mirwaiz Umar Farooq, and Mohammad Yasin Malik, had on August 17 called for a two-day strike from August 26, but the strike has now been deferred to the end of the month.

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Many see the sinister design of the Hindutva leadership behind the move. Analysts see this as the first step towards the total abrogation of the Article 370 of which 35A is a part. In case this happens Indian Occupied Kashmir will lose its special status under Indian constitution and can be annexed into main Indian Territory.

Indian legal expert and senior lawyer Prashant Bhushan have said Article 35A cannot be challenged on the ground that it violates fundamental rights or the basic structure of the Constitution. “Article 35A says that no law in J&K regarding restrictions imposed on employment under the State government, or acquisition of immovable property, or settlement in the State, or scholarships and aid given by the State government shall be void on the ground that it is inconsistent with any fundamental rights in the Constitution,” Bhusan says.

Imran Khan himself waded into the controversy by tweeting in the favor of Sidhu. Now it seems that the legal fracas over the position of IOK will unleash a new storm in the already fraught Indo-Pak relationship.

Though the Article came in through a 1954 Presidential Order, he says, it was in furtherance of the Instrument of Accession which the J&K government had signed with the Indian government. While the above move has become divisive within India, it will also unleash a host of problems for the new government in Pakistan. The relations between the two countries have been in a downward spiral since massive protests for independence in IOK that have been met with brutal Indian repression. The new Prime Minister Imran Khan had announced in his victory speech that Pakistan is ready to improve its ties with India.

“If they take one step towards us, we will take two, but at least (we) need a start,” 65-year-old Khan had stressed in his first public address after leading his party to victory in the general elections held on 25th July. He, however, had also reiterated that India and Pakistan should resolve their dispute over the divided Kashmir region through talks. According to sources, Imran’s offer was appreciated by government circles inside India who asked for a delay in talks till the Indian elections to be held in 2019.

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However, any attempt by Islamabad to mend fences with New Delhi will be faced with peril if India tries to abrogate the special status of IOK. Already the new government has been embroiled in a tussle with India over the treatment of former cricketer Navjot Singh Sidhu. Sidhu had recently visited Pakistan to attend Prime Minister Imran Khan’s oath-taking ceremony, was criticized across the border for hugging General Bajwa during the oath-taking ceremony.

Indian Punjab’s current Chief Minister disapproved of Sidhu’s hugging the Pakistani military chief but he himself was blasted by Shoba De for his close “relations” to a Pakistani journalist Aroosa Alam. Indian hardliners and members of the ruling Bharatiya Janata Party (BJP) staged a protest against Sidhu’s arrival in Pakistan. A sedition case was entered into Indian courts against Sidhu. Sidhu had rebuffed Indian hardliners’ criticism over his tour by commenting on how much love and respect he received from Pakistanis.

Read more: CPEC and Pakistan’s road to development: Can India sabotage the plan?

Meanwhile, Imran Khan himself waded into the controversy by tweeting in the favor of Sidhu. Now it seems that the legal fracas over the position of IOK will unleash a new storm in the already fraught Indo-Pak relationship.


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