A critical showdown on Article 35-A

Published at August 12, 2017 05:52 PM 0Comment(s)9283views

Shujaat Bukhari

A critical showdown on Article 35-A

Shujaat Bukhari

In the last 27 years of political uncertainty in Kashmir many wheels have turned. By and large the dominant talk has been of finding a resolution to the political issue that emanates from the political upheaval of 1947 when a united India was divided. Without any doubt, the struggle for freedom in Jammu and Kashmir was different from the one the Indians were fighting for but somehow it got entangled with the Partition conundrum and has been lingering for the last 70 years. When the youth of Kashmir took up arms in 1987, they changed the complexion of politics in the state. Though Jammu and Ladakh largely remained aloof from the Kashmiri demand, this did not dilute the cry for resolving the issue. The groundswell for “Azadi” (freedom) has remained the bedrock for the demonstration that was first expressed through the gun and later on the stone.

Many governments in Delhi have entered into both backchannel and official negotiations with those who spearheaded the “Azadi” movement, including the right-wing Bharatiya Janata Party’s Atal Bihari Vajpayee. Nothing tangible emerged but the two processes that ran parallel between Delhi and Islamabad and Delhi and Srinagar did bear fruit in the shape of confidence-building measures that still exist with buses running and trade across the Line of Control on both sides of the divided state. Separatist or resistance leaders who have been championing the cause, however, failed to give shape to independent thinking and decision-making, but they have not given up.

However, in the last three years since the Narendra Modi-led BJP government has been in power, its denial that J&K is a political issue has changed the narrative not only within India but among the separatists who otherwise considered this angle irrelevant.

The BJP government has removed all discussion that made Jammu and Kashmir a political issue without even considering a parliamentary resolution to retrieve Pakistan-Administered Kashmir as their “unshakable belief” that the entire state is an integral part of India. Complete integration of the state has been the BJP’s political agenda and abrogating Article 370 (that gives the state special status within the ambit of the Constitution of India) has been a thorn in the party’s side. However, to fulfil the ambition of joining the power structure in the state it entered into an Agenda of Alliance with the People’s Democratic Party, committing to safeguarding this constitutional position.

Despite these promises as part of the AoA, the BJP has unleashed a war through the judiciary to tamper with Article 370. We the Citizens, an NGO patronised by the Rashtriya Swayamsevak Sangh (RSS), the ideological fountainhead of the BJP, has filed a petition in the Supreme Court to scrap Article 35-A. The Article was extended to J&K 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 owning land in both parts of the state across the LoC. Here the clamour is that this makes Jammu and Kashmir exclusive and it should be thrown open to people from the rest of India.

While the legal battle is on and state is left alone in the court, experts are raising more pertinent questions. One is that should the Article 35-A go, all the subsequent 41 Presidential Order would be subject to legal scrutiny as all of these Orders were in essence amendments to the 1954 Order. In view of this the subsequent orders have extended 94 out of the 97 entries in the Union List to the state as well as 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.

It is not known what the final decision of the Supreme Court would be, but the apprehension is that it could be an adverse one, even though the state government is defending it. Chief Minister Mehbooba Mufti was the first to warn about it being tampered with. At a seminar in Delhi she said if Article 35-A is tinkered with there will be nobody to shoulder the Indian flag in Kashmir. But the cries to scrap it have grown louder with the entire opposition comprising the National Conference, Congress, CPI (M) and other regional parties gathering to defend it. Former chief minister Farooq Abdullah chaired a meeting of the opposition on August 7 and warned of the consequences. “If the SC decides to scrap Article 35-A, 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,” Abdullah said in an interview with me. With Mehbooba driving to senior Abdullah’s residence to discuss Article 35-A, political setting on the issue seems to be changing. With opposition assuring all support to her government on this, it is likely to be the battle between all and BJP. As the Chief Minister expanded her scope of discussion by meeting the Prime Minister and the Home Minister impressing upon them the dangers, a possible scrapping of this Act entails, it remains to be seen whether Government of India changes its stand on August 26, when the case is listed for hearing.

The joint resistance leadership comprising Syed Ali Geelani, Mirwaiz Farooq and Yasin Malik joined the chorus and called for a strike today. This is the first time that those on either side of the ideological divide are on the same page. The concern is that the removal of Article 35-A will help the BJP fulfil its long-standing dream of complete integration which eventually will open the door for the settlement of non-Jammu and Kashmir residents in the state. 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 Delhi and Srinagar but also for a possible revolt.

The mainstream camp headed by the NC is contemplating bringing Jammu and Ladakh into the fight to protect the special status though Jammu is polarised due to the current influence of the BJP and RSS. But the message they want to give them is that removing the Article is equally harmful for them. 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-à-vis the state’s sanctity of a unique nature and they should follow,” said CPI (M) leader M Y Tarigami. Though political manoeuvring is projecting Jammu at loggerheads with Kashmir, the strike observed by Jammu Chemists last year was significant. They protested 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.

As of now political circles are focused on the issue of special status and with the resistance camp joining the bandwagon. This has put “Azadi” on the backburner. Has BJP achieved anything by changing the discourse or has it opened up the space for greater unity of political forces in Kashmir? The special status issue has the potential to snowball into a major political revolt. If Delhi can’t give the people Azadi, it cannot deprive them of autonomy either.


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