The Article that Generated New Heat

Shujaat Bukhari


Kashmir was wrestling with the scars of 2016 unrest that left nearly 100 people dead, thousands injured and many losing eye sights due to pellet guns. Economy and education was badly hit. The shadow of unprecedented public uprising against the Indian state continues to loom large over tourism, which has touched its lowest ebb this year. The coalition government led by Chief Minister Mehbooba Mufti had been in the thick of fighting new age militancy as the number of local youth joining the ranks swelled up alarmingly. Though the situation turned a volatile turn intermittently this year as well particularly when eight people got killed on April 9, the day when by elections were held for Srinagar parliamentary seat, semblance of normalcy was prevailing. However, a new issue cropped up and that is of Article 35 A that has been challenged in the Supreme Court. Having become an emotive issue for the people in the state, particularly in Kashmir they attach many “dangerous consequences” with its possible removal from the right wing agenda of complete assimilation of state to the change in demography of Jammu and Kashmir, the only Muslim majority state in India. This has not only brought the arch rivals in mainstream camp together but the separatists too have joined the bandwagon of saving the Article “at any cost”. An average Kashmiri is upset and notwithstanding the bitter lessons of uprising in 2008, 2010 and 2016 that hit the Valley badly, he is ready for a big battle.

Though Bhartiya Janta Party (BJP) is in power with Peoples Democratic Party (PDP) in the state, the former’s “machinations” have not stopped in spite of agreeing to Agenda of Alliance (AoA) with PDP committing to protect the special status of the state as guaranteed through Article 370. In last three years of Narendra Modi rule all efforts have been made to deligitimise the political struggle in Kashmir and denying the fact that Jammu and Kashmir was a political dispute and it needed a political solution. Besides harping on a military solution by toeing a hard-line and projecting Kashmir, as a new hotbed for likes of ISIS or Al Qaeda, it has launched a tirade against the special status through its affiliates. 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 fulfill 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 Line of Control (LoC) which includes Pakistan Administered Kashmir. However, in Gilgit-Baltistan, which has almost been annexed by Pakistan, people do not have state subject rights any longer. Here the clamour is that this makes Jammu and Kashmir exclusive and it should be thrown open to people from the rest of India. Its significance to state is that it protects its distinct character in terms of its residents. It helps to protect a law that was passed by Dogra monarch Maharaja Hari Singh during the British rule to stop the influx of Punjabis into the state. Maharaja passed the law reportedly at the insistence of Kashmiri Pandits who were part of the higher echelons of power at that time. According to 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. It is the State in terms of the section 5 of the Constitution of J&K, which has the absolute

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. Government of India has refused to file an affidavit to defend the Article in the Supreme Court and instead sought a larger debate. A new twist has been given to the issue as it was reported that the original file containing all necessary information and noting regarding the Article 35 A and the Presidential Order of 1954 was missing from the Ministry of Home Affairs.

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. The Supreme Court will be hearing 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 special status of J & K and are pending in SC and the High Court.

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 29, when the case is again listed. Former Chief Minister Omar Abdullah has taken the battle a step forward saying that in case it is tinkered with, it re-opens the larger discussion on the accession.

On the other hand, the joint resistance leadership comprising Syed Ali Geelani, Mirwaiz Farooq and Yasin Malik joined the chorus and warned of consequences in case it was scrapped. 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 fulfill 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. In that case it is going to be BJP versus all. Not only will put it Kashmir back on the boil but the fate of the state government will also be hit by this. Leading lawyer Zaffar Shah says that decision on these issues should be of political nature. “Such approach doesn’t have people’s support. Issues, which can only be decided in a democratic manner, can’t be dealt with by the courts. It appears that this all is being done under with a design to take away the core sovereignty of the state of Jammu and Kashmir,” said Shah.

The mainstream camp headed by the NC has already initiated to bring 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 maneuvering 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.

While being in power in the state and also supporting the moves to do away with special status has exposed the BJP’s double standards. It is without any doubt that BJP will be using this in the run up to 2019 general elections but it has the potential of putting Kashmir on fire. And Jammu and Kashmir is not like any other states. It has an International dimension. New Delhi is committed through Shimla agreement to resolve the issue with Pakistan, albeit bilaterally but the dynamic of the problem is not as simplistic as the current government looks at it. In case the order is averse, it may lead to huge costs in Kashmir, as people are seemingly ready for a big battle.

Shujaat Bukhari is a non-resident IPI Scholar specialising in Kashmir conflict.

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