Article 35A: Who created it, why and how they have turned against it?

State Subject law in Jammu & Kashmir as guaranteed by Art. 35-A of Indian Constitution was created by Dogra Raj in 1927 to protect the economic interests of Kashmiri Pundits, but now Modi’s Hindutva politics has destroyed this constitutional guarantee in its attempts to change the Muslim identity of Kashmir. Gandhi had fought against British imperialists; now Hindutva India is running a colony of its own.

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Article 35A of the constitution of India (abrogated on August 5, 2019, by Hindutva Govt) was the culmination of the long-standing rights movement of the people of Jammu & Kashmir that began when cash strapped East Indian Company sold Kashmir to Maharaja Gulab Singh on March 16, 1846, for merely Rs.7.5 million.

Dogra dynasty was ruthlessly despotic but was forced to acknowledge and reserve some rights specific to natives of the state. It was not a charity, but a surrender before the people’s will on account of severe resistance against the cruel rule.

Read more: Timeline: Where is Kashmir after August 5, 2019?

Most important of these “rights” were the rights of the natives over the land which they lived, ploughed, got buried into and the local jobs and state scholarships. The state law was promulgated in 1927 and was updated in 1932. It became part of the Indian Constitution as a result of prolonged and protracted negotiations between the Indian and Kashmiri leadership represented by Pundit Nehru and Sheikh Abdullah respectively in the period 1947-1950.

The chronology of events leading to the incorporation of Article 35A into Indian constitution is deeply entrenched in the politico-legal history of the state of Jammu & Kashmir, given its special geographical, political, demographic position, its internationally disputed status and its unusual and unique relationship with the Indian Union that evolved since 1947.

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In 1947, unlike territories of British India (11 provinces directly governed by Viceroy), the princely states had legally defined relationship with the British crown. The state of Jammu & Kashmir was one such state defined as a Muslim majority state, “ transferred forever in independent possession of Gulab Singh and the heirs male of his body….”, the Hindu Raja of Jammu, by the British Government under the treaty of Amritsar, dated March 16, 1846.

He thus became the sole owner, proprietor and ruler of the state comprising 77%, Muslims, mostly illiterate and subdued by centuries of slavery under different oppressive rulers.

State Subject Law: A Need of Kashmiri Pundits

Maharaja Gulab Singh had earlier remained the most trusted lieutenant of Lahore Sikh Durbar as well (before Sikh defeat by British) and later allowed Punjabis in particular and other superior competing interests to get jobs, and establish a business enterprise in the state of Jammu & Kashmir over the head of natives.

This situation was especially troubling for the valley’s Kashmiri pundits who were a small minority (only 2-3% of the population) but by virtue of being the educational elite had a disproportionate share of jobs and privileged positions.

It is not without a reason that as a political deal it lived through “Instrument of Accession”, “Delhi Agreement 1952”, “Art. 2 of Indian constitution” and above all, Art. 370 on which the whole edifice of Indian claim of accession is based

Pundits also influenced the Dogra rulers on account of religious proximity. Feeling insecure about losing lucrative and influential jobs, perks and privileges – due to influx of educated professionals from outside especially from Punjab in the first part of 20th century- they brought pressure on the Dogra ruler, Maharaja Hari Singh, to protect the jobs, grant of lands and scholarships in the state for natives only.

Muslim masses were used as street power to bring the ruler to force the hand of Dogra rulers. Kashmiris Pundits succeeded in getting the word “Hereditary state subject” coined and notified on January 31 1927, defining it, “to mean and include all persons born and residing within the state before the commencement of Maharaja Gulab Singh’s reign in 1846.” A foundation was laid for the law, to be called “State Subject Law.

Law’s scope was broadened and defined further by creating categories through an amendment in the notification on April 20 1927. It was classified into three categories: class 1, 2 and 3. Class (i) was the one defined above, i.e. subjects born and residing within the state from the beginning of Ghulam Singh reign. Class (ii), permanent residents who possessed immovable property in the state at the time of commencement of Maharaja Pratab Singh’s rule in 1885. And Class (iii), permanent residents of the state on account of having received grants by way of immovable property from Maharaja under a “Rayatnama.

Read more: New Indian Attack on the People of Kashmir

The descendent of each class inherited the status of its predecessor and preference over or subordinate level below the other class accordingly. Foreign companies beneficial for economic development incorporated in the state under permission were also given the status of state subjects.

Through an amendment in 1932, emigrants from the state residing in the foreign countries retained the position of state subject for two generations but could not claim the internal rights in the state. The Hindu elites of the state – Pundits in case of Kashmir – who were well educated, rooted deep in the statecraft and trusted in the Durbars of dictatorial regimes in the state for centuries, further monopolized the state jobs and grants under the protection of state subject law.

On the eve of the partition of India, Dogra ruler Hari Singh – in what can only be described as a tragedy for 77% Muslims of the state – acceded to India on October 26 1947. However, even in those unusual circumstances of accession, he consciously delegated only defence, foreign affairs and communication to Indian dominion retaining for himself entire internal sovereignty under clause 8 of the instrument of accession, that included state subject law.

Azad Kashmir retained the “State Subject Law”

The parts of the princely state of J&K liberated by the people of state constituting Azad Jammu and Kashmir government were not part of the accession instrument as they had ceased to be parts of Maharaja’s state on October 24, 1947, when a free government of the people of the state was established in Muzaffarabad.

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However, the state subject law is protected in Azad Jammu & Kashmir interim constitution 1974 and has always remained a part of the Azad Kashmir statutes. It is strictly watched and followed. So much so that the nomenclature of the head of the state and chief executive, in the AJK, are equally protected as, “Sadar-i-Riasat and prime minister.” In Gilgit-Baltistan, however, it is not followed; though not specifically abrogated as well.

Similarly, the State Government, under the control of India, adopted the constitution Act 1939 of the former ruler with modifications compatible with the new environment, which included state subject law also.

Indian Constitution adopts “State Subject Law” as 35-A

The Constituent Assembly of India – that included representatives of Kashmir under the Instrument of Accession – was seized with drafting a new constitution to replace Government of India Act 1935. The new constitution of India, mostly a modified version of the Government of India Act 1935, came into force on January 26 1950. The relations between the state of Jammu & Kashmir and Indian Union were regulated through Art. 370 on “existing basis,” i.e. “Instrument of accession”.

The negotiations continued between the Kashmiri and Indian leadership for future relations between Indian Union and state, which culminated into an agreement called “Delhi Agreement” of 1952. It contained a host of agreed clauses, which included the state subject law in particular.

Read more: Kashmir: A moment of Truth for the Idealists and Naysayers

Clause 2, Delhi Agreement 1952, stipulated that in accordance with Art. 5 of the Indian constitution, the state subjects shall be regarded as citizens of India, but the state legislature was given the power to make laws for conferring special rights and privileges on state subjects given state subject laws and also empowered to make laws for state subjects who had gone to Pakistan on account of communal disturbances of 1947, in the event of their return to the state.

In pursuance of this agreement, “The constitution (Application To Jammu & Kashmir) Order 1954 was promulgated in supersession of an order of 1950.

Besides applying the bulk of provisions of Indian constitution, most of which were against the provisions of the instrument of accession, a special provision as Art. 35A was introduced in the constitution of India with “ overriding effect on all other provisions of the constitution including fundamental rights of other citizens under the constitution, protecting existing (state subject laws) and laws to be made in future by state Assembly defying the classes of state subjects, conferring on them rights and privileges and imposing restrictions on others as respects to employment, acquisition of land, settlement, scholarship and aid in the state”.

The word “state subject “was substituted by “permanent resident “and a “permanent resident” was deemed as a citizen of India simultaneously after Constitution Application to state order 1954

It is thus not difficult to see that Art. 35-A and the rights preserved through it were an essential part of the politico-legal history of Kashmir. As a political balancing act, it sustained itself from its inception in force 1927 till August 2019.

It is not without a reason that as a political deal it lived through “Instrument of Accession”, “Delhi Agreement 1952”, “Art. 2 of Indian constitution” and above all, Art. 370 on which the whole edifice of Indian claim of accession is based. It’s important to mention that despite 35-A and Art. 370 in place, erosion of J&K autonomy had continued.

State Subject: Symbolized the identity of Jammu & Kashmir

The issue of “state subject” is not of rights alone; it is very close to identity of a state and nationhood, which existed right from the time when the Kashmir was discovered from beneath the deep waters of “Satisar”.

A full-fledged chapter followed provisions of Art-35A as part (iii) comprising sections 6 to 10 of 1957 constitution of the state of  J&K that was finally enforced on the recommendations of constituent Assembly in 1957, after Delhi Agreement and after due deliberation with Delhi leadership.

Jammu & Kashmir Constituent Assembly was created in 1951 to frame its constitution, and it dissolved itself in January 1957; later, no fundamental change in the structure of the relationship between J&K state and Delhi was possible in the absence of Constituent Assembly.

Read more: India’s ‘Final solution’ for Kashmir: President AJ&K

The word “state subject “was substituted by “permanent resident “and a “permanent resident” was deemed as a citizen of India simultaneously after Constitution Application to state order 1954. Besides class (i) & class (ii) state subjects, every person residing in the state for not less than ten years and having acquired immovable property before May 14 1954, was also deemed a resident of the state. A state subject who had migrated to Pakistan during 1947, was also considered as a resident of state on his lawful return to the state.

Though initial inhabitants of the pre-historic state were all Hindus, they converted to Buddhism at some point which gave way to Islam from 10th century onwards. From 13th century onwards Kashmir has been predominantly a Muslim state, and from 1947 onwards it symbolized a Muslim identity in Hindu India.

Kashmir valley since the 13th century has been a Muslim majority area, but the overall state of J&K has been Muslim majority too. Despite biased figures throughout the Dogra rule, available census reports of India reveal overwhelming Muslim majorities in the whole of J&K: 74.16% (1901); 75.94% (1911); 75.97% (1941) 1961 (68.31%); 64% (1981) and 68.3% (2011). It is amusing that Indian Hindu leadership blames Muslims of marrying more wives and increasing population, but when it comes to counting, the figures are shown in descending order. How can it be?

How Pundits lost interest in State Subject law?

Pandit population in Valley of Kashmir, according to Indian census reports from 1846 (Ghulab Singh era) to 1947 is shown as 4% to 5%. However, on the ground, it never went beyond 2 to 3%. This anomaly is explained by the fact that they have always been maintaining second homes in the rest of India. Unlike Kashmiri Muslims, they felt safe and comfortable with their Hindu coreligionists, got attractive jobs and later drew attention by spinning false tales of horror and harassment.

In reality, something else was happening. After termination of 101 years of autocratic Dogra Hindu rule, in 1947, the majority Muslim community, under Sheikh Abdullah’s National Conference got its due share and came to rule through the principle of adult franchise.

All promises and aspirations of “Socialist, Secular, Democratic Constitution” of India given to minorities have been unilaterally scrapped. Kashmir – perhaps the whole of India – now stands in a legal vacuum

The educated pundits (only 2-3% of the actual population) started to lose their disproportionate hold in Kashmir, which was mostly a function of their privileged position and political control. Majority community (97-98% of Muslims) competed and started getting an increasing share in jobs which only reflected their population proportions. But its important to understand how it happened.

Sheikh Muhammad Abdullah, after coming into power as prime minister of the state, initiated reforms. The most significant blow was the abolition of big landed estates in 1950. The land was given to tillers free of cost. Being a privileged class throughout known history, pundits share in amassing the “jageers” (landed estates) was greater than Muslim jageerdars, (landlords) so they had to surrender more.

Hindus – especially the landed elite – started leaving the state in disappointment – particularly pundits from Kashmir. A major migration of pundits took place in the 1950s when reforms began to kick in according to the Naya Kashmir manifesto.

The early 1990s saw the movement for AZADI by Kashmiri Muslims. Pundits felt insecure and BJP nominee governor Jagmohan, facilitated their migration Kashmir valley to safer places in Jammu and the rest of India. This was the second-largest migration of pundits. Now there are hardly one and a half percent pundits left in the valley of Kashmir.

Read more: India’s Kashmir law-fare: Pakistan needs to change its Narrative!

Faced with history’s strange irony, many Pundits from 1990s onwards joined those who were against Kashmir’s special status as enshrined in Art. 370. Having tremendous influence in power corridors of India, the pundits started a campaign to scrap the special status of State under Art. 370 to merge the state in the Indian mainland and to abolish State Subject Law enshrined under Art. 35A of Indian Constitution, which they had initially crafted for themselves in 1927 – and gradually benefited majority Muslim community after the end of Dogra rule in 1950. Their efforts bore fruits on August 5 2019.

Modi regime brazen action of August 5: Implications?

Modi’s RSS led BJP government in Delhi had unilaterally and unconstitutionally withdrawn all politico – constitutional arrangements between the state of J&K and the Indian Union developed since October 26, 1947 -including the State Subject rights guaranteed since 1927.

Ironically this illegality was done through a presidential order issued under Article 370(1) – that had hitherto guaranteed ceremonial sovereignty and identity of the state. Though “Kashmir’s autonomy and sovereignty” eroded over a 70-year process was hollow, but it had provided a psychological solace of a separate identity to the wounded sentiments of Kashmiri nation ravaged by repeated betrayals, broken promises and false guarantees.

Article 35A

State of Jammu & Kashmir is the only state, aligned with Indian Union, whose future is to be regulated by an UN-sponsored Plebiscite. This is not the situation of any other state in India and Pakistan, and Jammu & Kashmir alone had a separate constitution. In its special character, it is unlike other Indian states and territories pending its future dispensation.

Yet nine other Indian states are given a status almost equal or similar to the state of Jammu & Kashmir under the constitution of India regulated by Art. 371 (from 371A to H). All of these special arrangements are acceptable because of their demography and religious identity suit Hindutva mentality as against Kashmir’s Muslim identity.

Read more: Kashmir Tragedy – An Identity of Eternal Pain?

Since the brazenly unconstitutional act of August 5 2019, around 106 local laws symbolizing local autonomy have been abrogated, and about eighty union laws subjugating the state of Jammu & Kashmir have been are enforced.

Hindutva actions have shaken the core of constitutionalist state once founded by the likes of Dr. Ambedkar. Every guarantee given to the Kashmiri nation by top Indian leaders from the likes of Mahatma Gandhi, Pundit Nehru and Maulana Azad to the lesser mortals that followed them now stands violated. All promises and aspirations of “Socialist, Secular, Democratic Constitution” of India given to minorities have been unilaterally scrapped. Kashmir – perhaps the whole of India – now stands in a legal vacuum.

Hindutva fanatics in power in India ignore that what they have undone in a state of madness, was achieved by the noble sacrifices of several generations of Kashmiris from 1846 onwards. It was not mythical Mahabharata tale but a real story of sweat and blood like Indian and African freedom movement.

Read more: India’s Constitutional Deception turns Kashmir into a Volcano

It won’t vanish, it won’t perish. It would regrow with much more vigour and strength. Achievements gained by blood are perennial, not transitory like the fits in which mischief of undoing Art. 35A is committed. Kashmiris will fight back as usual with much more vigour than Indian might and achieve much more than lost.

وہ اپنی خو نہ چھوڑیں گے ہم اپنی وضع کیوں بدلیں

سبک سر بن کے کیا پوچھیں کہ ہم سے سر گراں کیوں ہو

Author Justice (r) Syed Manzoor Hussain Gillani retired as the senior-most judge of the Supreme Court of AJK. He was educated in Srinagar, occupied Kashmir, and migrated to AJK in 1976; can be reached at manzoorgillani@hotmail.com.

The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.

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