Several provisions of the Constitution of India were added to the state of J&k through the presidential order in 1954. Along with these provisions, Article 35A was also inserted. This took when the Delhi Agreement was signed between Nehru and Sheikh Abdullah in 1952. As per this order, only 3 subjects: Foreign Affairs, Communication and Defence could be solely determined by the Union Government. All other matters would require concurrence of the state government. The Constitution of J&K states that, “Jammu and Kashmir is an integral part of India.” However, in spite of this in a case regarding bank land (State Bank of India) holdings the High Court of the state passed a judgment claiming that the laws passed by the Parliament cannot be enforced in the state as it is a sovereign state. The Supreme Court refuted this judgement dismissed the notion of the state High Court and stated that Jammu and Kashmir has no sovereignty beyond the COI. (Kaul,Sagar ,2017) This highlights and brings to view the sentiment prevalent within the state. Article 35A has political sentiments attached to it. It has managed to unite the ruling and the opposition party of the state. The roots of 35A is article 370, which provides special status to Jammu And Kashmir, thus amending 35A will invariably lead to the constitutionality of Article 370. As Mr Malhotra informed the researched attacking 35A equals attacking the Muslim sentiments.

Clear and unabashed statements made by the political leaders of the state. CM Mehbooba Mufti stated that “there won’t be a single shoulder left supporting the Indian flag” and opposition leader Omar Abdullah stated that interfering with Article 35A risks challenging J&K Accession to India and the repercussions would be worse than the Amarnath Land Row in 2008. These statements highlight the nexus between the politicians and their play for power. (Ghoshal, 2017). The political leaders fear erosion and diluting their autonomy in the state. The controversies primarily surround and are based on the politicians and their ambitions for remaining in power. Another prevalent fear which is exploited is the fear of a change in the demography of Muslim majority as by scrapping 35A they fear an influx of immigrants from all over India. The people of Kashmir are also told that this would induce rich investors and big corporations to come to the state and encroach on the land holdings of the common people. They use a communal angle to scare the people that if the Muslim majority is interfered with, the state will become a proponent of Hindu Communal elements and the cultural factor of the Muslim majority state would be polluted. Thus, the public is lead astray with false notations. It is invariably the political strategy at maintaining the autonomy. (Kaul,Sagar ,2017)

Amendments to the COI can only take place under Article 368, and in case of presidential order when the Parliament is not in session, when it reconvenes the said order has to be presented to the Parliament who then decides if it becomes a law or not. Article 35A was never presented to the Constitution. Further, the common answer given to the argument about the President’s authority regarding adding a new article to the Constitution is that there is a mandate for this under Clause-1d of Article 370. But the said clause only provides for the President to revise or modify already existing provisions, there is no mention of adding/inserting a completely new article. (Kaul,Sagar ,2017)

“There is an argument projected that the President has no powers to amend the Constitution. The fact of the matter is Article 35 (A) is not part of the Constitution of India. It’s a part of the Constitution only applicable to J&K. There is a difference. So there was no requirement of Parliament amending it,” Above statement is from J&K Advocate General Jehangir Iqbal Ganai. With the awareness spreading about 35A, three court cases have been issued against 35A ,Bachan Lal Kalgotra vs State of Jammu and Kashmir and Others on the grounds that it Violated Part III of the Constituion , A case filed by We the Citizens an NGO on the grounds that it violated Article 368, amendment procedure and by Charu Walli Khanna on the validity of the Constitution's Article 35A, on the ground of gender discrimination. In the first case the Supreme Court judgement declared that the state legislature should address the grievances of the aggrieved party. However, with regard to the other two recent cases, Mr Ganai states that Fundamental rights were not added to the essential list but were deemed desirable. Further, he stated that the New Delhi Agreement of 1952, Clause 6 recognised the need for special rights, thus this was debated by Nehru in the Parliament while formulating and ratifying this Agreement. (Peerzada,2017)

References

Ghoshal, S. (2017, August 07). Why It's Dangerous For The Centre To Tamper With Article 35A In Kashmir. Retrieved February 11, 2018, from http://www.huffingtonpost.in/2017/08/07/why-its-dangerous-for-the-centre-to-tamper-with-article-35a-in_a_23068270/

Ashiq, P. (2017, November 03). Article 35(A) was never part of Indian constitution: J&K advocate general. Retrieved February 11, 2018, from http://www.thehindu.com/news/national/other-states/article-35a-was-never-part-of-indian-constitution-jk-advocate-general/article19977163.ece