Jammu & Kashmir

Tinderbox petition

Print edition : September 15, 2017

Chief Minister Mehbooba Mufti. She was the first to warn against tinkering with Article 35A. Photo: PTI

National Conference president Farooq Abdullah with Sate Congress chief Ghulam Ahmad Mir and other opposition leaders and MLAs after an all-party meeting on the issue of Article 35A, in Srinagar on August 7. Photo: PTI

N.C. working president Omar Abdullah, addressing senior party leaders at party headquarters on August 14. He said the party would discuss options to join the legal battle against scrapping of Article 35A in the Supreme court. Photo: NISSAR AHMAD

The separatist leadership in Kashmir has also lent its voice against the perceived threat to Article 35A. Here, a file photograph of Ali Shah Geelani, Mirwaiz Umar Farooq and Mohammad Yasin Malik. Photo: NISSAR AHMAD

The legal challenge to Article 35A, which protects the demographic composition of Jammu and Kashmir, has brought all sides of the political spectrum, barring the BJP, together. Tampering with it has the potential of setting the Valley ablaze once again.

A SEMBLANCE of normalcy seemed to be returning to Jammu and Kashmir this year, despite intermittent lapses into violence such as the skirmishes that claimed nine lives on April 9, the day when elections were held for the Srinagar parliamentary seat. But if things appeared to be settling down, a new issue has cropped up to agitate emotions: that of Article 35A.

The unrest of 2016, besides leaving nearly 100 people dead, thousands wounded and many people blinded as a result of pellet injuries, had badly hit the State’s economy and education. Tourism, which too continues to feel the impact, touched its lowest ebb this year.

The coalition government led by Chief Minister Mehbooba Mufti has been in the thick of fighting new-age militancy as the number of local youths joining the ranks of militants swelled up alarmingly. The Valley was rocked by agitations in 2008, 2010 and again in 2016. Now, it seems ready for another battle as the people fear that Article 35A, which has been challenged in court, must be saved and that its possible abrogation will have dangerous consequences for the Valley. The perceived threat to Article 35A has not only brought together arch rivals in the State’s mainstream political parties but made separatists join the bandwagon of saving Article 35A “at any cost”.

The Bharatiya Janata Party (BJP), which is part of the ruling coalition along with the People’s Democratic Party (PDP), had agreed to the Agenda of Alliance with the PDP, which is committed to protecting the special status of Jammu and Kashmir as guaranteed through Article 370. Yet, in the three years of the Narendra Modi government, efforts have been made to delegitimise the political struggle in Kashmir and to deny that the problem in Jammu and Kashmir is a political one and needs a political solution. Besides harping on a military solution by toeing a hard line and projecting Kashmir as a new hotbed for the likes of the Islamic State or Al Qaeda, it has launched a tirade against the special status of the State through its affiliates.

The BJP government at the Centre discourages all discussion on Kashmir as a political issue. The ruling party seems to believe that the entire State, including Pakistan-occupied Kashmir (PoK), is an integral part of India. The complete integration of the State in the Indian Union has been the BJP’s political agenda. Article 370, which gives the State special status within the ambit of the Constitution, has been a thorn in the party’s side. Yet it endorsed the Agenda of Alliance in order to be in power in the State.

The party and its affiliates are now trying to use the judiciary to push their agenda. We the Citizens, a non-governmental organisation (NGO) patronised by the Rashtriya Swayamsewak Sangh (RSS), the ideological fountainhead of the BJP, has filed a petition in the Supreme Court to scrap Article 35A.

Significance of Article 35A

Article 35A was extended to Jammu and Kashmir through the Constitutional (Application to Jammu and Kashmir) Order issued by President Rajendra Prasad on May 14, 1954. It was specifically devised to grant protection to State subject laws that had already been defined under the Maharaja’s rule and notified in 1927 and 1932. Only State subjects are entitled to own land in both parts of the State divided by the Line of Control (LoC), that is, including PoK. However, in Gilgit-Baltistan, which has been almost annexed by Pakistan, people do not have State subject rights any longer. This gives meat to the clamour for abrogation of Article 35A.

The significance of Article 35A is that it helps the State to retain a distinct character in terms of its residents. It actually protects a law that was passed by the Dogra monarch Maharaja Hari Singh during British rule to stop the influx of Punjabis into the State. The Maharaja passed the law reportedly at the behest of Kashmiri Pandits, who were powerful in the State at that time. According to the leading constitutional expert A.G. Noorani: “Parliament of India has no legislative competence to make laws in respect of J&K State subjects/citizens as defined by law and under Section 6 of the Constitution of J&K in respect of their immoveable properties.”

With the legal battle under way, experts are raising more pertinent questions. One is that should Article 35A go, all the 41 Presidential Orders that came after the one adding the provision to the Constitution would be subject to legal scrutiny as they were all in essence amendments to the 1954 Order. The subsequent orders have extended 94 out of the 97 entries in the Union List to the State and applied 260 articles of the Indian Constitution to the State. These orders have also been used to erode the special status or the autonomy of the State from time to time. The Government of India has refused to file an affidavit to defend Article 35A in the Supreme Court and instead sought a larger debate. The issue acquires a new twist with reports that the original file containing all necessary information and notings regarding Article 35A and the Presidential Order of 1954 is missing from the Ministry of Home Affairs.

It is not known what the final decision of the Supreme Court will be. But there is an apprehension that it could be an adverse one, even though the State government is defending the law. The Supreme Court will hear the case on August 29, and a bench, which was hearing a similar/linked case with the next Chief Justice Dipak Misra on it, has indicated that it could be referred to a five-judge bench. There are at least five cases that are linked to the special status of Jammu and Kashmir and are pending in the Supreme Court and the High Court.

Chief Minister’s warning

Chief Minister Mehbooba Mufti was the first to warn against tampering with Article 35A. At a seminar in Delhi, she said if Article 35A was tinkered with, there would be nobody to shoulder the Indian flag in Kashmir. The entire opposition in the State, comprising the National Conference (N.C.), the Congress, the Communist Party of India (Marxist) and other regional parties, has come out in defence of the law. Former Chief Minister Farooq Abdullah chaired a meeting of the opposition on August 7 and warned of the consequences of abrogating Article 35A. “If the S.C. [Supreme Court] decides to scrap Article 35A, New Delhi will have to face the consequences and be ready for the battleground. We will go to jail, do everything we can. They should be ready for it,” he said in an interview with this writer. With Mehbooba driving to Farooq Abdullah’s residence to discuss Article 35A, the political equations in the State seem to be changing. The Chief Minister also met the Prime Minister and the Home Minister on the issue.

It remains to be seen whether the Government of India changes its stand on August 29, when the case is again listed for hearing. Former Chief Minister Omar Abdullah has taken the battle a step forward by saying that in case Article 35A was tinkered with, the larger discussion on the accession would be reopened.

The Joint Resistance Leadership (JRL), comprising Syed Ali Geelani, Mirwaiz Umar Farooq and Yasin Malik, has also warned of the consequences of a possible abrogation of Article 35A. For the first time, entities on either side of the ideological divide are on the same page. The concern is that the removal of Article 35A will help the BJP fulfil its long-standing dream of complete integration, which eventually will make it possible for people from other States to settle in Jammu and Kashmir. Whether the pro-India and anti-India forces will stage protests together is not known, but the case has set the ball rolling not only for a greater confrontation between New Delhi and Srinagar but also for a possible revolt. If that happens, it is going to be BJP versus the rest. Not only will it put Kashmir back on the boil, but the fate of the State government will become uncertain.

Zaffar Shah, a leading lawyer, says that such issues warrant political decisions. “Such approach doesn’t have people’s support. Issues that can only be decided in a democratic manner can’t be dealt with by the courts. It appears that this is being done with a design to take away the core sovereignty of the State of Jammu and Kashmir,” he said. Hurriyat Conference leader Mirwaiz Umar Farooq said that the aim was simply to change the State’s demography: “As this Article bars non-State subjects from settling and buying property in J&K, it is being challenged in a court with a view to alter the demography of the State by settling people from outside the State with the right to acquire land and property, and vote in the Assembly elections.” He added that this was “basically aimed at reducing the 75 per cent Muslim majority of the State to a minority and changing the basic character of the State in order to undermine and deeply affect its disputed nature. It is being done under a deliberate plan and is part of the much-flaunted ‘final solution’ to the Kashmir dispute by the Indian state, led by the RSS.”

The mainstream camp headed by the N.C. has already initiated moves to bring Jammu and Ladakh into the fight, though popular opinion in Jammu is influenced by the BJP and the RSS. The political parties are seeking to send a message that removing Article 35A would be equally harmful for Jammu. Maharaja Hari Singh, who enacted the State subject law, was from Jammu and did this to contain Punjabi influence. “We will remind them about his vision vis-a-vis the State’s sanctity of a unique nature and they should follow,” said the CPI(M) leader M.Y. Tarigami. Though political manoeuvring is on to project Jammu as being at loggerheads with Kashmir, the strike observed by Jammu chemists last year was significant. They protested against a government order allotting a contract to a non-State firm and called it an attack on Article 370. In Kashmir, demography tends to be at the centre of concern, but Jammu might think in economic terms and could revolt against forces hell-bent on robbing the State of its special status.

The issue has exposed the double standards of the BJP, which at once contrives to be in power in the State and also lends implicit support to erode its special status. The BJP will doubtless use the issue in the run-up to the 2019 general elections, but it has the potential of setting Kashmir on fire. Jammu and Kashmir is not like any other State. It has an international dimension. New Delhi is committed through the Simla Agreement to resolving the issue with Pakistan, albeit bilaterally, but the dynamic of the problem is not as simple as the current government seems to think it is.

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