Unraveling Kashmir And Its Special Status Under Articles 370, 35-A — Badri Raina


The debate around Article 35A should not be seen as concerning only the state of Jammu and Kashmir but indeed the very essence of the promise of Indian Constitutional democracy.

BADRI RAINA | Caravan Daily

ON November 4, 1951 Sheikh Abdullah told the Constituent Assembly of Jammu and Kashmir that the character of a nation is not known by its demographic profile but by the kind of Constitution it gives to itself. Having told Jinnah that a Sufi Kashmir could have nothing to do with a Theocratic Pakistan which he further underlined was most likely to be ruled by a “feudal oligarchy”, Sheikh Sahib was of the view that given the secular and democratic character of the Indian Constitution which guaranteed equality to all citizens irrespective of caste, creed, race, language, gender ethnicity, Kashmiri’s own history of composite and pluralist culture would flourish best in alliance with the Dominion of India.

Thus, disregarding the claims of both demography and physical proximity, the only Muslim-majority state then made a historic decision to forego the call of theocracy and throw its lot with Gandhi’s and Nehru’s India.

Little did he know, like all the rest of us, that a time would come when concerted efforts would be made by new political forces to dismantle and demolish Gandhi’s and Nehru’s India. Even so, having been the only state to negotiate its terms of accession to the Union during the proceedings of the Indian Constituent Assembly, Kashmir and the then Indian Centre ensured that that under Article 370, and flowing from it, Article 35-A would secure a Special Status for Jammu and Kashmir that would prevent its forcible and total incorporation by a coercive Centre.

It may be instructive to recall that after the Unionist in America won the civil war against the seceding Confederacy, they had the wisdom not to impose oppressive and uniform laws across the defeated regions. To this day, diverse American states practice divergent laws with respect to a plethora of citizens’ lives and activities; thus some states hold Primaries leading upto elections, while others hold Caucuses; some have the death penalty on their statutes, others do not, some have provisions of justice by a jury system, others do not, and so forth. Some indeed have special preferential provision for their own residents in the matter of employment and others do not.

No wonder that this model of a truly federated democracy, along with such iron-clad provisions such as the First Amendment that guarantees absolute freedom of speech and freedom to the media, American democracy remains strong and unshakeable despite attempts made from time to time by rich cartels and dictatorial Presidents to whittle down its strengths.

Alas, we laud America and everything American but desire to make a nation that stifles diversity and federal covenants. The debate around Article 35A thus should not be seen as concerning only the state of Jammu and Kashmir but indeed the very essence of the promise of Indian Constitutional democracy.

It must be our hope that the Supreme Court of India will see the matter in this light, and push back attempts not only to unravel Kashmir but the Republic — or what is left of it — in its entirety.


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