Introduction: Jammu and Kashmir is a beautiful state located in the Himalyan Mountains of India. The State is divided into three regions Jammu, Kashmir and Ladakh. Srinagar is the summer capital whereas Jammu is the winter capital of the State. The State has very rich culture and mostly known for Amarnath Yatra and Vaishno Devi Temple. Indeed, the state is not as much known for its beauty but for territorial dispute, terrorism, politics etc. There is a history behind the dispute of J&K’s current situation. However Jammu and Kashmir is an Indian State but the Constitution of India is not applicable here. Nevertheless, the State has their own Penal Code known as Ranbir Penal Code, 1989 and their own laws which are applicable on the territory of the State. Article 35A and 370 of Indian Constitution makes Jammu and Kashmir a different State of India. This Article will provide you brief information about how Jammu and Kashmir is a “Controversial State”.
Historical Background: In 1947, Britishers left India into more than 500 provinces and princely States. With Independence came partition. Every princely State have choice either they want merge with Pakistan or stay in Hindustan. At that time, Punjab was divided into two East Punjab and West Punjab on the other side Bombay and Sindh were divided. During the independence the princely State of Jammu and Kashmir was headed by Maharaja Hari Singh, which has majority of Muslim Population. Unlike other States who align with one nation or another Maharaja wanted independence of his State. To avert pressure from Pakistan, Maharaja signed a “Stand Still Agreement” with Pakistan which allowed trade and travel between Kashmir and new country. But no such agreement was signed by Kashmir with India.
Later, rebels funded by Pakistan, took over western territory of Kashmir which leads violence between two nations. At that time Maharaja asked India to intervene and help, in respond to that India on the advice of Lord Mountbatten asked Maharaja to align with “Dominion of India” and sign “Instrument of Accession”. Maharaja signed the instrument, to gain military assistance and first war between India and Pakistan was fought for Jammu and Kashmir in 1947-48.
The dispute was referred to United Nation on 1 January 1948. In resolution, UN asked Pakistan to withdraw its troops from Kashmir, after which India also withdraws its forces. Because of maximum Muslim population the most influential leader was Sheikh Abdullah who was firmly on India’s side therefore an emergency government was formed then Sheikh Abdullah became Prime Minister of the State. After Jammu and Kashmir becomes a part of Dominion of India, a special status was granted to the state in October 1947. Indian Constitution guaranteed independence status over everything except communications, foreign affairs, and defense.
Article 35A: The provision is incorporated in Indian Constitution giving Jammu and Kashmir Legislature a carte blanche to decide who all are “permanent residents” of state and it also consists special rights, property rights, scholarship right given to them. Also according to this article, any legislation formed violating this article will be void. The Article is incorporated under 1952 “Delhi Agreement” with Sheikh Abdullah and Jawaharlal Nehru, the agreement got ascent of President Rajendra Prasad in 1954. This unique Article will not be seen in the bare act! After Article 35, next Article is 36. But, the article is seen in Annexure 1 of the Constitution of India. The Article is ordered by Constitution Order No. 48. Then in 1956 the Constitution of the State is formed, it retained the definition of “permanent residents”. The definition says all the people residing in the State of Jammu and Kashmir will be permanent resident if he/she has acquired immovable property before 1911 or is residing there from 10 years before acquiring the immovable property. On the other hand, all emigrants from Jammu and Kashmir, including those who migrated Pakistan, are considered State subjects for two generations. The non permanent members do not attain any benefit such as Scholarship, government jobs etc. However, the law has been proved discriminatory for women; as if they marry to non permanent resident they get disqualified from their property rights.
Article 370- The article gives the Indian Constitution autonomous status to the state of Jammu and Kashmir. The Part XXI “Temporary, Transitional and Special Provisions” of Constitution contains Articles 369 to 393 where Article 370 is “Special Provisions relating to Jammu & Kashmir”. The Article 370 was drafted by Gopalaswami Ayyangarz, he was also known as former Diwan of Maharaja Hari Singh of Jammu and Kashmir. The State of Jammu and Kashmir is a part of Indian Union yet its status is different than other states in the following respect-
1.) The State has its own constitution and is governed according to the provision of that Constitution.
2.) The provision of Article 238 shall not apply to in relation the State of Jammu and Kashmir.
3.) The power of Parliament to make laws for J&K is only limited to the following matters-
(i) those matters in the Union List and the Concurrent List, which in consultation of the Government of the State, are declared by the President to correspond to the matters specified in the Instrument of Accession.
(ii)Such other matter in the Union and Concurrent Lists only with the concurrence of the Government of the state, the President may by order specify. This means that on such matters law can be made only with the consent of the Prime Minister of Jammu and Kashmir.
4.) The provisions of Article I and this Article shall apply in relation to that.
5.) Such of the other provisions of the Constitution shall apply to that State subject to “such exceptions and modifications as the President may by order specify”. But no such orders which relates to matters specified in the Instrument of Accession referred to in paragraph (i) of sub clause (b) shall be issued without the consultation of the State Government and matters other than those specified in the Instrument of Accession shall be issued with the concurrence of the State Government.
Debate- The current debate on Kashmir is basically based on two disputes among which one issue is challenged by a Delhi based NGO “We the Citizens” in Supreme Court in 2014 where as another issue was raised by two Kashmiri women questioning the validity of Article 14.
The issue raised by the NGO was “Article 35A is not added to the Constitution through an amendment under Article 368”. Article 368 provides Power of Parliament to amend the Constitution and its procedure. It was not presented before the Parliament of India and came into effect immediately, the petitioner argued.
In another related case, two Kashmiri women argued that state’s laws, flowing from Article 35A, had disenfranchised their children. As according to the same Article 35A, if a Kashmiri women marries in any other state her right on property is denied. They contended that this provision was gender biased and against Article 14 of the Constitution. However, it does not apply to the man marrying a woman outside the State, hence it is discriminatory.
Jammu and Kashmir Reservation Bill, 2019: The Jammu and Kashmir Reservation (Amendment) Bill, 2019 was introduced in Lok Sabha on 24th June 2019 by Amit Shah, Minister of Home Affairs. The Bill amends the Jammu and Kashmir Reservation Act, 2004 and replaces an Ordinance promulgated on March 1, 2019. The act provides reservation and promotions in State Government posts and admission in professional institutions for certain reserved categories. Professional Institutions include government medical colleges, dental colleges and polytechnic. The purpose of the act is to provide reservation in appointment and promotions in certain state government post to persons belonging to socially and educationally backward classes. Further, the Act states that any person residing in areas adjoining the International Borders will get three percent reservation in jobs and educational institution. Basically, due to continue cross border tension people living in that area are educationally and socio-economically deprived. The bill was passed from both Lok Sabha and Rajya Sabha in June 2019.
Conclusion: While pressing for general election the NDA (National Democratic Alliance) has many time claimed that Article 35A is “Constitutionally Vulnerable” and it discriminates between permanent citizens of Kashmir and other Indian Citizens. According to anonymous sources, it is also believed that Article 35A can be removed by the current government because of its ill effects. The terrorist attacks and cross border firing affects the life of people residing near borders. Apparently, the Reservation Bill is good for their welfare. The another controversial matter going in Jammu and Kashmir is a petition filed by lawyer in the High Court questioning the jurisdiction of NIA (National Investigation Agency) in the state. Jammu and Kashmir is always surrounded by such controversies. Hence it is a Controversial State.
A brief history of the Kashmir conflict; The Telegraph; 24 September 2001
- Amit Shah’s first bill today in Lok Sabha on J&K reservation; The Economic Times; June 24 2019
- Jammu & Kashmir (Reservation) Bill 2019: Things You Need To Know; BW Business World; June 29 2019
- With NIA Taking Control of Cases in Kashmir, Local Police Senses Lack of Trust; The Wire
- Constitution of India,1950
Image Credit- Wikimedia