Save Special Status of Jammu & Kashmir

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We, the undersigned, join with the diverse sections of the residents of the state of Jammu and Kashmir in urging you to dismiss the Writ Petition (Civil) 722 of 2014, filed by the NGO ‘We the Citizens’ on the following grounds:

1) It must be stressed that the petitioners are seeking revocation of a constitutional provision that serves as one of the vital links between the State of Jammu & Kashmir and the Union of India. It was after long deliberations that the members of the respective constituent assemblies of both India and Jammu & Kashmir incorporated this provision into the the part of the Indian constitution that is applicable to the state of Jammu & Kashmir. Any attempt to subvert this arrangement is akin to subverting the whole basis on which the relationship was formed. The Constitution (Application to J&K) Order of 1954 extended Indian citizenship to all state subjects of the erstwhile Princely state of Jammu & Kashmir. Article 35A is part of this Order that formalises the relationship between the Union of India and the State of Jammu & Kashmir. Tampering with the said Article endangers the very existence of a link between the Union of India and the State of Jammu & Kashmir.

2) The argument made by the petitioners that Article 35A violates the Constitution of India stands on weak ground, as the text of Article 35A itself provides for such an exception.

"Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:

(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or

(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—

(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide,

shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part."

3) Such petitions have also been filed in the past but the highest judicial and constitutional body of the country saw wisdom in dismissing them. In the previous judgments of the Hon’ble Supreme Court (1961 in the case of Puran Lal Lakhanpal vs President of India and in 1970 in the case titled Sampat Prakash vs State of J&K), it was accepted that President did have the powers apply a constitutional provision to Jammu & Kashmir “with exceptions and modifications”, as granted to him under Article 370(1)(c). Subsequent dismissals were made, and observations stated that “modifications” by president can be interpreted in the widest possible terms. Having such judgments before it, it is clearly not a constitutional concern for the NGO but a more sinister one.

4) The NGO “We the Citizens” is linked with the far-right parties in India and scrapping this very important provision has been on the forefront of their malignant agenda. The present dispensation in centre is also made up by these parties and has made no attempt to block this petition, as was the norm with the previous dispensations. This reveals a clear-cut tie-up between the two on the issue. There are genuine concerns within the state from all sections of the society regarding the damaging effect the said article’s possible revocation can have on the socio-economic and political rights and privileges of the state subjects, as manifested by the united opposition that such attempts have faced. For the sake of security and for a sense of normalcy to remain in the state, we implore urge upon the SC to dismiss this petition, and halt the troubles from escalating. Issues of larger public interest that affect all sections of the society cannot be held hostage to the partisan desires/agenda of a certain political faction.

5) It is naive to pretend that the State of Jammu & Kashmir does not have a unique history and unique circumstances that warrant the existence of certain exceptional provisions. To cite a controversial example, there are provisions such as the Armed Forces Special Powers Act which confer such rights on the Armed Forces as are not available to them in any other part of the country, and this provision has been read, thus far, by the courts in such a manner as to include even those acts committed by the armed forces as cannot be said to be in the line of duty! To selectively pick on Article 35A and argue that J&K is just like any other state reeks of either ignorance or sheer malice on part of the petitioners.

6) It is because of Jammu & Kashmir’s unique geographical, cultural, demographic and historical context that an article like 370 or a 35A exists in the first place. To feign ignorance of the context and to attempt to whitewash history is a malicious, political act. It is being argued that 35A is a temporary provision. However, it must be kept in mind that the term ‘temporary’ refers to the fact that a final political resolution of the Kashmir issue is overdue. Abrogation of such provisions as Article 370 or Article 35A cannot be sought on the grounds that these provisions were termed ‘temporary’, without also seeking the political resolution of the Kashmir issue.

1) Shehla Rashid Shora, Former Vice-President, JNU Students’ Union.

2) Nayeema Ahmad Mahjoor, Ex News Editor, BBC London; Penguin Author; Former Chairperson of J&K State Commission for Women.

3) Nighat Shafi Pandit, Chairperson, Help Foundation.

4) Dr. Nyla Ali Khan, Visiting Professor at the University of Oklahoma.

5) Dr. Raja Muzaffar Bhat, RTI Activist.

6) Sanam Sutirath Wazir, Human Rights Activist.

7) Sheikh Ashiq, Businessman; Former President, KCCI; COA, Capret Export Promotion Council.

8) Zakir Hussain Zaidi, President, Kashmir Youth Entrepreneurs Federation, Ladakh Chapter.

9) Sajjad Hussain Kargili, Journalist Kargil Ladakh.