Article 35A

What Article 35A implies

Print edition : March 29, 2019

Houseboats on the Jhelum in Srinagar, a 1953 picture. Said Nehru in 1952: "Although most of their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody from outside should acquire land there [in Kashmir]. And that continues." Photo: The Hindu Archives

November 1947: Prime Minister Jawaharlal Nehru addressing a gathering in Srinagar. Sheikh Abdullah, the Kashmir Premier, is sitting on a chair. Photo: The Hindu Archives

A view of the camping ground at Panchtarni on the way to Amarnath cave temple. An August 1954 photograph. Photo: THE HINDU ARCHIVES

Kashmir Traders Association protesting against the petitions filed in the Supreme Court challenging the validity of Article 35A, in Srinagar on August 5, 2018. Photo: NISSAR AHMAD/THE HINDU

Jammu and Kashmir’s autonomy is guaranteed by Article 370 of the Indian Constitution. Its people’s ancient rights are guaranteed by Article 35A, which is part of the Delhi Agreement between two governments, of India and of Jammu and Kashmir, concluded 65 years ago. But the Narendra Modi government has taken the judicial route to challenge these and implement its agenda.

THE Sangh Parivar’s chauvisim and ignorance feed on each other. Nowhere is this more evident than on the distinct identity of the State of Jammu and Kashmir. The State’s autonomy was guaranteed by Article 370 of the Constitution. Its people’s ancient rights are guaranteed by Article 35A. As on the Babri Masjid, the Rashtriya Swayamsewak Sangh (RSS) government, led by its pracharak Narendra Modi, has taken the judicial route in the hope that the Supreme Court will deliver the results it desires. It is out to implement its three-point agenda—uniform civil code, Ayodhya and Article 370.

On the Babri Masjid issue, the fair, just and decent course for the court is to wash its hands of the affair for two reasons. Violating its earlier ruling in Ismail Farooqi’s case ([1994] SCC), the Special Bench of the Allahabad High Court derailed the whole case by ordering excavation of the land to ascertain whether a temple existed on the land on which the mosque was built in 1528. Such a claim is barred by the law of limitation as the Privy Council decided in the case of Shahidganj mosque in Lahore in which it rightly held that the Muslims’ suit was barred by the law of limitation (67 Indian Appeals 251). Faced with this insurmountable hurdle, the Allahabad High Court explicitly held that not the law but the faith of the Hindus was conclusive of the dispute. They are in a majority of the population.

On February 26, 2019, Justice S.A. Bobde, a member of the five-judge bench on Ayodhya, made these far-reaching remarks: “Do you seriously think that this entire dispute for many years is about property?” So it was initially under the title suits filed in 1951. He went by its derailment later. Read what he added: “Courts can only decide on property disputes.” So, it cannot decide this case any longer. Hence this: “We are considering the possibility of healing relationships.” Hence also the adjournment for a mediation, which is certain to fail. In that event, the court ought to decline to try the case. There is a precedent. An English judge refused to try a criminal case of great public interest because the charged atmosphere did not permit a fair trial.

We need to go no further on this issue. Article 370 has been discussed by this writer in this magazine (“Rape of Article 370”, Frontline, August 18, 2017). It has been abused not only to amass the Centre’s powers over Kashmir but also to amend the State’s Constitution. Only Kashmir’s Constituent Assembly could do that. The State government could give its concurrence to increase the Centre’s powers only until the Constituent Assembly was convened. It then lost that power to the Assembly which can ratify the government’s interim concurrence or reject it. The Constituent Assembly was convened on October 31, 1951. Unlike the Constituent Assembly of India, which simply concluded its work and ceased to exist, except as a Parliament under the new Constitution, the Constituent Assembly of Jammu and Kashmir formally, consciously decided to dissolve itself on November 17, 1956, with effect from January 26, 1956. It passed a formal resolution to this effect.

That destroys the Bharatiya Janata Party’s (BJP) plans. For, clause (3) of Article 370 lays down the conditions for its repeal. Another Presidential Order under Article 370 based on the recommendation of the Constituent Assembly of the State “shall be necessary” before the President issues a notification declaring “that this Article shall cease to exist”. That Assembly vanished in 1956. The President lost his power. When the law prescribes a procedure, it cannot be circumvented by any other device, whether an ordinance or even an Act of Parliament.

In 1947 Kashmir acceded to India only on three subjects—defence, foreign affairs and communications. By 2019, 94 of the 97 entries in the Union List and 26 of the 47 in the Concurrent List were applied to Kashmir. As many as 260 of the 395 Articles of India’s Constitution were applied, all in the name of “integration”. Nothing remains of Article 370.

So, attention was turned on Article 35A, which reads thus: “35A. Saving of laws with respect to permanent residents and their rights:– 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.”

Special provisions

Compare this with Article 371A on Nagaland, which reads thus: “371-A. Special provision with respect to the State of Nagaland.– (1) Notwithstanding anything in this Constitution, - (a) No Act of Parliament in respect of – (i) religious or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law, (iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.”

Article 371A is, if anything, much wider than Article 35A. Article 371G in respect of Mizoram is identical to Article 371A. Speaking of special provisions there are other special provisions in respect of Maharashtra and Gujarat (Article 371), Assam (371B), Manipur (371C), Andhra Pradesh (371D), Sikkim (371F) and Arunachal Pradesh (371H).

Article 35A was inserted by the President by an order under Article 370 on May 14, 1954, but on the explicit recommendation of Kashmir’s Constituent Assembly on February 15, 1954, while adopting the report of its drafting committee. The President cannot delete it because the Constituent Assembly is gone. Without its concurrence, Article 35A can neither be amended nor deleted. The other “special provisions” were enacted by Parliament as amendments to the Constitution. Will Parliament dare to repeal them?

Article 35A cannot be amended or deleted by Parliament. For, Clause (2) to Article 368 on constitutional amendments says that “no such amendment shall have effect in relation to the State of Jammu and Kashmir unless by order of the President under clause (1) of Article 370”.

For this, the approval of the State’s Constituent Assembly is necessary. Any concurrence of the State government is always subject to the Assembly’s final approval. When the State is under Governor’s Rule or President’s Rule, neither can accord that concurrence as if he was the State government. The Centre cannot acquire “concurrence” from its own handpicked appointee removable at will. Yet, on February 28, the Union Cabinet decided to amend the Jammu and Kashmir Reservation Act to extend benefits of reservation to those near the international border in Jammu. It will extend the Constitution (77th Amendment) Act, 1995, and the Constitution (103rd Amendment) Act, 2019, to Kashmir by an order by the President under Article 370 of the Constitution.

That will be a nullity for such an order could have been passed only on the recommendation of the State government and then also subject to its ratification by the State’s Constituent Assembly which vanished in 1956. There is no elected government now, and an Explanation to clause 1 of Article 370 explicitly defines the State government to mean a Council of Ministers in the State. There is no such Council of Ministers now.

There is a clear ruling of the highly respected and truly independent Supreme Court of Sri Lanka on this. It was delivered on November 1, 2012, and was extensively reported by Puneeth Nagaraj in The Hindu on December 7, 2012. It concerned the Divineguma Bill. He reported: “The Bill was challenged before the Supreme Court through several petitions. As per Article 154G (3) of the Constitution, the Supreme Court sent it back to the government saying it had to be ratified by the Provincial Councils. There has never been a provincial council in Northern Sri Lanka (not counting the short-lived North-Eastern provincial council), and the province is run by Colombo through the Governor. It was the Governor who ratified the Divineguma Bill on behalf of the Northern Province. This was immediately challenged by the Tamil National Alliance before the Supreme Court through two petitions. On November 1, the Supreme Court held that the Governor cannot ratify the Bill in place of the Provincial Council.”

But the law will not suffice, for Article 35A is embedded in Kashmir’s history and psyche. Talk of repeal poses an existential threat. What Justice Bobde said of Ayodhya applies to Article 35A. The Maharaja’s order of June 27, 1932, imposed a ban on “foreign nationals” in respect of citizenship and purchase of immoveable property. Even the British dared not to flout it. Hence the houseboats on which they lived for years. Earlier, a notification of April 20, 1927, defined “State Subjects”. In 1950, Section 6 of the State’s Constitution defined “permanent residents”. Even in the 19th century such protection was granted. The Dogras of Jammu demanded it as much as the Kashmiri Pandits of the Valley. Both feared that Punjabis would grab lands and jobs.

Permanent occupants

Writing in 1886 in his classic The Valley of Kashmir, Walter Lawrence, who was Settlement Commissioner of Jammu and Kashmir, recorded the curbs on permanent hereditary occupants of lands. “This right of occupancy is hereditary, but it is not alienable either by sale or mortgage.” He opined that it would be “dangerous” not to impose the restriction. “Whole villages have been sold for paltry sums.”

Pandit Prem Nath Bazaz dealt with this topic in both his books, Inside Kashmir (The Kashmir Publishing Co., Srinagar, 1941) and in The History of Struggle for Freedom in Kashmir (Pamposh Publications, 1954). In Inside Kashmir he recorded: “The Maharaja owned the lands. Chekdars or tenants-at-will could occupy them so long as they paid the revenue but could neither sell nor mortgage his land. At the beginning of the 20th Century ‘a new problem confronted the people’—the outsider occupying posts in the administration. In 1912 a definition of the ‘State Subject’ was formulated for the first time. ‘The cry of “down with the outsider” was raised mostly by the Hindus.’” Muslims were excluded from State jobs by the Dogra ruler and were too poor to own lands.

In 1922 a State Council of Ministers was formed. Hari Singh, the heir apparent to the throne and Senior Member of the Council, issued a circular which said: “The Maharaja Sahib Bahadur has been pleased to direct that in future no non-State subject shall be appointed to any position without the express orders of His Highness-in-Council in each case. Each such proposal shall be accompanied by a full statement of reasons in writing as to why it is considered necessary to appoint a non-State subject, it being definitely stated whether there is no State subject qualified and available for the appointment proposed. In like manner no scholarships or training expenses of any kind should be granted to non-State subjects. His Highness has also directed that any infringement of this order will be very seriously dealt with.

“His Highness the Maharaja Sahib has been pleased to inform you that in future all grants of land for agricultural and house-building purpose and grant of houses and other State property shall be made to State subjects only....”

A State Subject Definition Committee was set up. It submitted its report in 1925, the year Hari Singh became Maharaja. He readily accepted its recommendations. A definition of “Hereditary State Subject” was formulated and it became law from January 31, 1927, in the form of a notification dated April 20, 1927.

Bazaz pursued the topic in his History showing how Muslims were outside the entire debate. “The poverty of the Muslim masses was appalling. Dressed in rags which could hardly hide his body and barefooted, a Muslim peasant presented the appearance rather of a starving beggar than of one who filled the coffers of the State. He worked laboriously in the fields during the six months of the summer to pay the State its revenues and taxes, the officials their rasum and the money-lender his interest. Most of them were landless labourers working as serfs of the absentee landlord.... In the countryside the Muslim was synonymous with the hewer of wood and drawer of water. All sort of dirty and menial work was to be done by him. A Hindu was respectable in the eyes of the society, and the Muslim, because he was a Muslim, was looked down upon as belonging to an inferior class.” It was the Kashmiri Pandits who had launched the movement “Kashmir for Kashmiris”.

Bazaz wrote that the 1927 “definition all at once stopped the recruitment of the Punjabis in the services. But it did not equally benefit all the communities residing in the State. With Hari Singh’s pro-Dogra policy in operation, the people of Jammu, particularly Rajputs, got the most of the big jobs while the Pandits were recruited as clerks in offices vacated by the Punjabis. Needless to say that the Muslims were as yet out of the picture.”

Thus, Article 35A is purely “clarificatory”. It is based on the Maharaja’s notification of April 20, 1927, which was issued at the instance of Kashmiri Pandits, who feared an influx from Punjab.

Delhi Agreement

The matter came up in 1952 when the Delhi Agreement was under negotiation. On July 20, 1952, Jawaharlal Nehru met a Kashmiri delegation comprising Sheikh Abdullah, Mirza Afzal Beg, Bakshi Ghulam Mohammed, Girdhari Lal Dogra and D.P. Dhar. Nehru’s record of the talks reads:

“The Kashmir delegation were anxious that the rights and privileges given to ‘State subjects’ (Jammu and Kashmir notification dated 20th April 1927) should be preserved, subject to such variations as the Constituent Assembly of the State might decide upon. These rights and privileges relate more specially to the acquisition and holding of immovable property, appointment to services, etc.

“It was pointed out that under Article 19(5) of the Constitution this was clearly permissible both in regard to the existing law or any subsequent legislation on the subject. It was admitted that, having regard to the special position of Kashmir, some such protection was necessary for the permanent residents of the State. There were in fact provisions in the Constitution giving special protection, such as in the tribal areas in Assam or in the land legislation in the Punjab and elsewhere, which prevented non-agriculturists from acquiring land. This was matter which could be dealt with by the State Legislature.

“It was agreed therefore that: ‘The State Legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State, more especially in regard to the acquisition of immovable property, appointments to service and like matters. Till then, the existing State law would apply.’” Article 35A is based on a solemn pact between the Union and the State in 1952. It cannot be altered unilaterally.

Nehru’s statement

In his statement to the Lok Sabha on the accord, Nehru said: “The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were very apprehensive about one or two matters. For a long time past, in the Maharaja’s time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. If I mention it, in the old days the Maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring property. So although most of their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody from outside should acquire land there. And that continues. And in the state subjects notification by the Maharaja, they defined four grades of subjects, Class number one, Class two, Class three and Class four. And unless you come in one of these classes, you just cannot acquire land there, or any immovable property. So the present Government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. Now they want to vary the old Maharaja’s laws to liberalise it, but nevertheless to have checks on the acquisition of lands by persons from outside. So far as we are concerned, I agree that under Article 19, clause (5), of our Constitution, we think it is clearly permissible both in regard to the existing law and any subsequent legislation. However, we agree that this should be cleared up.

“The old State’s subjects definition gave certain privileges regarding this acquisition of land, the services, and other minor things, I think, State scholarships and the rest. So, we agreed and noted this down: ‘The State legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State, more especially in regard to the acquisition of immovable property, appointments to services and like matters. Till then the existing State law should apply.’”

Sheikh Abdullah’s statement

In his report to Kashmir’s Constituent Assembly on August 11, 1952, on the Delhi Accord with Nehru, Sheikh Saheb said: “It was agreed that in accordance with Article 5 of the Indian Constitution persons who have their domicile in the Jammu and Kashmir State shall be the citizens of India. It was further agreed that the State legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State, more especially in regard to acquisition of immovable property, appointments to services and like matters. Till then the existing State law would apply. It was also agreed that special provision should be made in the laws governing citizenship to provide for the return of those permanent residents of Jammu and Kashmir State, who went to Pakistan in connection with the disturbance of 1947 or in fear of them as well as of those who had left for Pakistan earlier but could not return. If they returned, they should be entitled to the rights, and privileges and obligations of citizenship.

There are historic reasons which necessitate such constitutional safeguards as for centuries past, the people of the State have been victims of exploitation at the hands of their well-to-do neighbours. The Hon’ble Members are perhaps aware that in the late twenties, the people of Jammu and Kashmir agitated for the protection of their bona fide rights against the superior competing interests of the non-residents of the State. It was in response to this popular demand that the Government of India appreciated the need for such a safeguard. No definition of the special rights and privileges of the residents of the State can afford to remain static. The need may arise at one stage or the other to liberalise such a definition. The importance of the fact that the State Legislature shall retain powers to be able to effect such modifications becomes obvious in this context.”

It is highly significant that even New Delhi’s stooges, who staged the coup of August 8, 1953, at Nehru’s instance, did not dare to renege on the understandings of 1952 in 1956. The Drafting Committee, now radically changed, presented its report to Kashmir’s Constituent Assembly on February 11, 1954. The Report recommended certain amendments to the Constitution of India in its application to Kashmir. Article 35A was one of them. This report was signed by Girdhari Lal Dogra, Mir Qasim, D.P. Dhar, Ghulam Rasool Renzu and Harbans Singh Azad. It was adopted by the Assembly on February 15, 1954, and the amendments were incorporated in the President’s Order of May 14, 1954, entitled The Constitution (Application to Jammu & Kashmir) Order 1954; it added Article 35A.

Prime Minister Jawaharlal Nehru spoke twice on the subject when he reported to Parliament on the Delhi Agreement of 1952. He told the Lok Sabha on July 24, 1952: “For a long time past, in the Maharaja’s time, there had been laws there preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. If I may mention it, in the old days the Maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring property. So, although most of their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody from outside should acquire land there. And that continues. And in the State subjects notification by the Maharaja, they have defined four grades of subjects, Class number one, Class two, Class three and Class four. And unless you come in one of these classes, you just cannot acquire land there, or any immovable property. So the present Government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up an get the delectable places.

“Now they want to vary the old Maharaja’s laws to liberalise it, but nevertheless to have checks on the acquisition of lands by persons from outside. So far as we are concerned, I agree that under Article 19, clause (5), of our Constitution, we think it is clearly permissible both in regard to the existing law and any subsequent legislation. However, we agreed that this should be cleared up. The old State’s subjects definition gave certain privileges regarding this acquisition of land, the services, and other minor things, I think, State scholarships and the rest. So, we agreed and noted this down: The State Legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State, more especially in regard to the acquisition of immovable property, appointments to services and like mattes. Till then the existing State law should apply.”

Speaking in the Rajya Sabha on August 7, 1952, Nehru amplified: “Honourable Members know that Kashmir is supposed to be one of the beauty spots of the world. And apart from its being a beauty spot, there are many other things which attract people there. And from olden times the old Maharajas, who succumbed to many things that came from the then British Government, did not succumb to one thing. They were afraid that the climate of Kashmir and its other attractive features being what they are, that Kashmir might become a kind of colony of the British if they came and settled down there in large numbers. They were afraid of that. So they stuck to one thing—that no foreigner could acquire property in Kashmir. And they did keep them out. They made rules to the effect that only State subjects could acquire property except by special permission, and so on.

“In fact, they have made four different classes of subjects for the purpose. Property was given to Class I and Class II. These rules in regard to property still subsist. Those are the rules in regard to property in Kashmir and everybody in Kashmir, to whatever group or community or religion he belongs, wants to uphold these rules, naturally, because they are for the benefit of the residents of Kashmir, whether Hindus or Muslims. They are afraid that people from India or elsewhere, rich people and others, might come and buy up property there, and thereby gradually all kinds of vested interests would grow up in property in Kashmir on behalf of people from outside. So far as we were concerned, we thought that this was only the existing law there, and the existing law prevails under Article 370 of the Constitution, which I have just read.

We thought it was a perfectly justifiable feeling on their part, and that acquisition of property in Kashmir State should be protected on behalf of the people there. They propose, quite rightly too, to change their present laws on the subject, as they are too cumbersome. They have made some simple rules. Nevertheless, in essence, they are to regulate acquisition of property by outsiders in the State.

“The House will perhaps remember that we have given protection in this regard in various parts of the territories of India. For instance, in the north-east of Assam tribal areas we have given them protection. Nobody from outside can go and take possession of property there, because if we once give them permission, there is no doubt that these tribal people will be exploited by outsiders who will go there and buy up their lands and use them for making money while the people of those areas will go to the wall. So we agreed that to avoid exploitation of the State territory it was desirable that these rights and privileges should continue. As a matter of fact, under Article 19(5) of our Constitution this was clearly permissible—and that is our view even now—both in regard to existing law or any subsequent legislation. But if there was any trace of doubt, it should be made clear.”

We must now move to the Constituent Assembly of Jammu and Kashmir. The Report of the Basic Principles Committee was presented on February 3, 1954. Para 10 of the Report said: “All these Fundamental Rights should be subject to the over-riding condition that: (i) no law of the State relating to State Subjects to be hereafter called ‘Permanent Residents’ and regulating their rights and privileges; and (ii) no law hereafter to be made by the State Legislature defining the permanent residents and conferring on them special rights and privileges in relation to acquisition and holding of property in the State or in the matter of employment under the State and imposing restrictions on citizens other than permanent residents for settling within the State should become void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Part III of Constitution of India.”

It is thus part of a compact between Kashmir and the Union. However, the fact is commonly overlooked; that even repeal of Article 35A—which is constitutionally impossible—will not alter the situation. For, the notification of 1927 is part of the Constitution of Jammu and Kashmir. Part III deals with Permanent Residents. Section 6 defines who they are. “(1) Every person who is, or is deemed to be a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954 – (a) he was a State Subject of Class I or of Class II; or (b) having lawfully acquired immoveable property in the State has been ordinarily, resident in the State for not less than ten years prior to that date. (2) Any person who, before the fourteenth day of May 1954, was a State Subject of Class I or of Class II and who having migrated after the first day of March, 1947, to the territory now included in Pakistan, returns to the State under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the state. (3) In this section, the expression ‘State Subject of Class I or of Class II’ shall have the same meaning as in State Notification No.I-L/84 dated the Twenty-seventh June, 1932.”

In legal parlance this is called incorporation by reference. Thus, independently of Article 35A, the definition in Section 6 of the State’s Constitution will still apply. All that Article 35A does is to protect laws on permanent residents from challenge on the ground that they violate fundamental rights. Article 35A is part of the Delhi Agreement between two governments, of India and of Jammu and Kashmir, concluded 65 years ago. No court can or should ignore this fact.

The Privy Council drew pointed attention to the need to reckon with facts and realities when interpreting constitutional statutes. In British Coal Corporation vs The King (1935) AC. 500 it said: “It is doubtless true that the power of the Imperial Parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired; indeed the Imperial Parliament could, as a matter of abstract law, repeal or disregard s.4 of the Statute. But that is theory and has no relation to realities.” Similar curbs exist in Himachal Pradesh. No one mentions them.

Sovereign character

Section 6 of Jammu and Kashmir’s Constitution is not subject to Article 370. The Constituent Assembly was not set up by a sanction of the Indian Constitution or of the Government of India. It was set up by the State itself acting independently of both, under the Maharaja’s Proclamation of May 1, 1951, on the advice of Sheikh Abdullah. He repeatedly stressed its sovereign character. The Privy Council ruled in Queen vs. Burah (1878) A.C. 859 that the legislature of colonial India acting within its Charter “is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself” (page 904). This applies with even greater force to Kashmir’s Constituent Assembly as regards Section 6 of the State’s Constitution and to the President’s power under Article 370. The Constituent Assembly conferred on him its constituent power to apply constitutional provisions by an Order. Neither Article 370 nor Article 35A can be challenged.

The debate is tinged with politics to a high degree which renders judicial arbitration fraught with danger. Both L.K. Advani and A.B. Vajpayee said repeatedly that no court could decide on the Babri Masjid question. The Telegraph’s Srinagar correspondent reported: “Many in Kashmir believe that the BJP, which partners the ruling PDP, and its ideological mentor RSS—both historically opposed to the State’s special status—are using the judicial route as a ploy to change the demography of the country’s only Muslim-majority state.... In Jammu, the provincial president of the opposition National Conference, Devinder Rana, said the region would be hit more as outsiders, reluctant to settle in Kashmir, would head for Jammu in droves” (August 13, 2017). In the United States, its Supreme Court’s decision in the Dred Scott case triggered off the Civil War. Judicial statesmanship lies in judicial restraint.

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