Mir Iqbal Abrogation
Before going in to 2019 parliament election BJP wants to set a stage by tinkering article 35A.This article has become easy weapon in the hands of right wing forces to polarize.
Before going into any discussion or concluding anything about Article 35A we need to go in to historical events which brought this article in to existence.
This article has its history way back in 1879 when the Maharaja of the erstwhile Jammu and Kashmir replaced Persian language by Urdu and made Urdu as an official language of his territory regardless of the fact that the most of the home-grown people were speaking Persian.
Massive migration from near by area like Punjab, Himachal led Maharaja to take this step. Immigrants were mostly Urdu speaking. This was the step which historian believes sowed seeds for Article 35A.
People across Jammu and Kashmir smelled this as a conspiracy of settling down outsiders in the state.
Taking note out of this people across the state started a movement known as “Kashmir for Kashmiri” this movement was initiated in Jammu by Jammu Dogra Maha sabha where as in Kashmir it was started by Hindu Sabha who was mostly Kashmiri Pandits.
Agitation and an extensive resistance movement brought maharaja on negotiation table, which resulted in to “state subject definition notification dated 20th April 1927” under which the definition of state subject was made clear.
Beside this state subjects were given special status. like only state subjects can hold the proprietary ship rights, only state subjects can apply for state jobs and all the state scholar ships can be availed by state subjects only.
This order continued to exist till 1954 in same letter and sprit. But in 1954, after 1953 Delhi agreement through the constitutional application to Jammu and Kashmir order 14th of April 1954 by president of India under article 370 (1) , article 35 A was incorporated in constitution of India. This article was simply continuation of Maharajas “state subject definition notification dated 20th April 1927”
One Delhi based NGO “we the citizens” and RSS backed think tank “J&K study center” filed PIL in Supreme Court of India against the 35A just after BJP took over at center and challenged it largely on two points. 1.
That this article is violating fundamental right of the daughters of the state subject who married with non state subject because just after the marriage that daughter will lose her status of permanent state subject and right to property 2.
That this article was incorporated in constitution of India through presidential order which later was not ratified by the parliament of India.
Actually BJP has misled people across the India on both these grounds. They have nothing to do with the rights of the people and constitutional ethos. They are known for playing with the rights of the people.
There priority is to create confusion and spread lies through their propaganda army.
Coming to argument number one there is already a full bench judgment of Honorable High court of Jammu and Kashmir state in the case of State of J&K v/s Sushila Sawhney which reads as “ in the view of majority of opinion we hold that a daughter of a permanent resident of JK will not lose the status of permanent resident of the state of Jammu and Kashmir” so by this judgment it is clear, that there is no question of losing the status of permanent state subject by the daughter who marries non state subject.
Besides this propaganda army is misleading people that children out of this couple will not get citizenship rights. Yes cannot because as per law children always follow the domicile of their father. So there is no question of giving them citizenship.
Now discussing argument number 2nd this is not only presidential order which incorporated an article in constitution of India there are around 97 entries in union list.
According to the report of the state autonomy committee, the central government through these presidential orders extended 94 out of 97 entries in the union list to Jammu and Kashmir and made applicable to the state 260 out of 395 articles of the Indian constitution.
These presidential orders have been used to change Sadri Riyasat by governor, waziri Azam by chief minister. Even the jurisdiction of Supreme Court of India and Election commission of India was extended to Jammu and Kashmir through these presidential orders.
By and large the entire relationship between India and Jammu & Kashmir was developed through these presidential orders. Now if article 35A is legally wrong then what about all these entries of union list, all these article, jurisdiction of SC and EC. Then all have been illegally implemented in the state of Jammu and Kashmir.
Legally if article 35A is abrogated only India will be on receiving end. Because by abrogation of this article all other articles and jurisdiction of different institution will abrogated itself in future.
By revoking article 35A the law which were governing citizenship relating issue at the time of incorporation of 35 A will come into force and it was Maharajas order of 1927 which governed in citizenship related issue till 1954 and 35A was simply extension of this very same order of Maharaja.
Thus legally situation will remain the same. But this judgment could become the reference point and provides legal stand to challenge all other presidential orders in future. Finally this will open Pandora box.
During 2014 general elections BJP polarized people across India by propagating against the special status of J&K and by speaking half truth. They aggressively projected that this special status is not in the interest of nation.
But conceal that J&K is not the only state which is enjoying special status under constitution of India. There are many more states in India which are enjoying special status under constitution of India. Like 371(a) Nagaland, 371(b) Assam, 371(c)Manipur, 371(d) Andra Pradesh , 371(f) Sikkim, 371(g) Mizoram, 371(h) Arunachal Pradesh, 371(i) Goa. Even in North east there are places where outsiders are not allowed to enter without proper permission. They targeted article 370 and 35A only because J&K is Muslim majority state.
Since BJP has taken over at center time and again they have used different institutions to serve the interest of their party. There is every suspicion that RSS and BJP is using judiciary to facilitate their political interest by abrogating 35A.
Actually this all is to hide their failure. They have failed on all fronts starting from economy, unemployment, Farmers issues, inflation, social in-security, women-insecurity to minority issues.
By aggravating on developmental front they are trying to befool people on primitive issues like 35A which has already become the permanent feature of constitution of India. They once again are trying to go in 2019 general elections on non developmental issues.
BJP is putting the state of Jammu and Kashmir on fire rather entire India by creating the issue of 35A. They may gain some political mileage but on the cost of peace in J&K. if they succeed in abrogating 35A this will be disastrous for Delhi itself.
This step will unite entire Jammu, Kashmir and Ladakh across ideologies and religions against Delhi. This process has already started. In valley, ladakh and Jammu all stake holders from pro Indian to separatist are speaking one language.
Even some of BJP MLAs has also extended their support against the abrogation of 35A. They even have gone to an extend by speaking that Kashmir’s are fighting the war of Jammuties.
So far Delhi is not able to control the anti India feelings in the valley. How could they control things when this will spread in other parts of the state? It is Jammu and Kashmir police which use to fight the terrorism in the valley, which looks after law and order.
There are intelligence inputs that if anything happens against 35A there are tendencies of revolt in police ranks in the state. If anything like that happen what will be the situation in the state and that too when police controls law and order in the state.
The repression of this politically motivated step by BJP will be unimaginable complete separation or greater autonomy cannot be ruled out.
The views expressed in this article are authors own and does not necessarily represent the editorial policy of The Legitimate.
The author is a social and political activist. Abrogation Abrogation Abrogation Abrogation
