Article 35 A: a view from the ground
Apprehensions about the future of the article grip Kashmir.
Walking past drop gates, razor wires, sand pickets and watchful sentries, Abdul Rashid this Monday was part of a large group of party supporters entering the National Conference headquarters, Nawa-e-Subah, tucked near Srinagar’s Zero Bridge, over river Jhelum.
Anxious about the current state of war frenzy in the valley, this National Conference diehard loyalist from downtown Srinagar got animated when his party vice president Omar Abdullah addressed New Delhi: “Stop scaring us everyday regarding Article 35 A.”
Among the reasons keeping the valley on the edge is the upcoming hearing on pleas filed in the Supreme Court against Article 35 A protecting the “exclusive rights” of natives over land and property ownership, government jobs and scholarships.
What was supposed to be a party event to welcome former bureaucrat Farooq Shah into the party fold became a discussion on Article 35 A.
“A peaceful state like Arunachal Pradesh is also up in flames,” Omar continued his high-octane speech. “People there have hit the roads protesting against any changes in their permanent resident status. That, I believe, should act as an eye opener for those who are inimical to Art 370 and Art 35 A. Any misadventure in fiddling with the state’s special status will unarguably have serious and far-reaching consequences in the state of Jammu and Kashmir.”
After being deferred a number of times, the in-chamber hearing on Article 35 A is being taken up in the Supreme Court. But what is being seen in the valley as a judicial intervention in the face of tough political posturing of BJP and its allied parties is already sending Kashmir in a state of speculation and tension.
“Since Friday night, everyone in Kashmir was clueless about the big event,” Rashid said, as he walked out of the party office on Monday. “But after our leader Omar Sahab spoke our heart, perhaps now the Modi government might take a sensible stand on the issue, keeping our aspirations in view.” As the NDA government led by Narendra Modi is yet to make its stand public on the issue, people are speculating as to what the Centre plans to do.
But the likes of Rashid who suffered for upholding their party’s conviction to support unionist politics in Kashmir want the Modi government to take a leaf from former Prime Minister PV Narshimha Rao’s political book on the judicial issue.
As Prime Minister, Rao had thrown his weight behind the special status of J&K.
Till some years after independence, Kashmir had its own Prime Minister and President, titles subsequently changed to Chief Minister and Governor, respectively. “The fact that Modi is no Rao is only sending Kashmir into chaos day by day,” Rashid lamented.
At a small distance from the NC headquarters, there was another gathering on Article 35 A late on Monday.
A battery of journalists had turned up to attend the hurriedly-convened presser of People’s Democratic Party leader Mehbooba Mufti at her official residence.
“Don’t play with fire,” the former BJP ally and PDP chief said, urging the Centre against any tinkering with Article 35 A. “Don’t fiddle with Article 35 A and Article 370. Else you will see what you haven’t seen since 1947. If it’s attacked, I don’t know which flag the people of J&K will be forced to pick up instead of the tricolour.”
Terming the upcoming hearing on Article 35 A as another litmus test for the Supreme Court, Mehbooba said any “unnecessary fiddling with these articles will undermine and nullify any contract that legitimized J&K’s accession.”
Despite Monday’s twin terse talks on Article 35 A in the Kashmir capital, the larger street mood remains paranoid. Since Friday night itself, as jets suddenly appeared over the valley skies followed by a mass crackdown on dissenters and NIA raids on top Hurriyat leaders, including Mirwaiz Umar Farooq, the future of Article 35 A has remained an issue of much speculation.
“The manner in which these local unionist leaders are milking the issue for regaining their lost political ground is sickening,” said Muntaha Qadri, a political science scholar from Srinagar. “We all remember how as chief minister, Mehbooba Mufti had totally surrendered on the issue.”
Mehbooba’s political rival Omar Abdullah, who is very eager to have elections in Kashmir, projects the same image by harping on the article.
“Article 35 A is Article of Trust between New Delhi and Jammu and Kashmir,” said Sajad Lone, BJP’s Kashmir ally. “It is a matter of the promise made decades ago. It is a part of a set of special provisions offered to the people of the state in order to be part of India. People ignorant of history pass it off as concessions to the State.”
Even as the local unionist camp has forged some perceptive unity in defence of Article 35 A, it is mainly being dismissed as an election stunt.
“They have started harping on the issue for their political revival,” believes Abbas Ali, a political commentator. “The fact is that these parties are actually responsible for weakening the special constitutional position for Jammu and Kashmir over the years.”
Amid all this, governor of Jammu and Kashmir Satya Pal Malik is silent on the issue.
Old subject in a new framework
Fearing “demographic change” in Jammu and Kashmir, the Joint Resistance Leadership and Hizbul Mujahideen’s operational commander Riyaz Naikoo have warned of a “mass uprising” over abrogation of Article 35 A.
The old matter returned in a new context when Modi came to address his ‘Lalkar’ rally in Jammu on December 1, 2013. “Does Omar’s sister who’s married to an outsider have the same rights in Jammu and Kashmir?” Narendra Modi said, while taking a dig at Article 35 A during his election campaigning.
Two years later, Modi’s campaign pitch apparently translated into a petition, filed by a woman named Charu Wali Khanna against Article 35 A in the Supreme Court of India.
“Under the guise of Article 370 and Article 35 A, the men and women are subjected to different treatments. Women are discriminated against on the basis of gender,” argues Charu, a Supreme Court lawyer.
Article 35 A is a Dogra-era legislation enacted by Maharaja Hari Singh, the last monarch of Jammu and Kashmir, in 1927.
It states that the wife or widow of a state subject would also be considered one so long as she did not leave the state for permanent residence outside.
Later, the article was incorporated in the Indian Constitution by the President through the Constitution (application to J&K) Order 1954.
Before Charu, however, the first ‘official’ campaign against the article surfaced in early 2015 when junior minister in PMO from Jammu Dr. Jitendra Singh told scribes on the first day of the PDP-BJP coalition government formation in J&K: “We’ve started working on the abrogation of J&K’s special status.”
Some months before this controversial statement, a little known NGO called 'We the Citizens' —registered with Delhi government on July 30, 2013 for engaging in “non-governmental activities”— had filed a petition through its late president Sandeep Kulkarni, the man who once served notice to Congress for “maligning” the RSS.
The NGO’s challenge to Article 35 A is based on the ground that it could have been introduced in the Indian Constitution only through a constitutional amendment under Article 368, and not through a Presidential Order under Article 370.
Even as the apex court has rejected this argument three times, the NGO’s plea was still entertained, thus contradicting the 1961 five-judge Constitution Bench decision in Puranlal Lakhanpal vs The President of India and Others.
The large bench had held that when, through an order under Article 370, the President applies any provision of the Indian Constitution to J&K, the term “modification” must be considered in its “widest possible amplitude”.Yet, the NGO pleads, “The Constitution can be amended only by Parliament.” This is a vexed legal question, but one with political and social implications.
The 2016 State Bank Of India vs Santosh Gupta case further turns down this argument. In that case, a two-judge Bench of the court followed the two earlier Constitution Bench decisions to reiterate that the Presidential Order can “extend” or “enlarge” the provisions of the Indian Constitution in its application to J&K.
In 2016, as petitioner Kulkarni passed away, the state government had even argued that the petition wouldn’t survive in the eyes of law, if the petitioner dies. Even then, a slew of petitions was filed against Article 35 A in the apex court.
(Picture Courtesy: National Conference Archives/ National Conference leaders and activists address a gathering in Srinagar)
BJP’s judicial campaign?
It was comrade Sampat Prakash, a card-carrying Marxist from Srinagar who was the first person to defend Article 35 A in 1968 through his writ petition on the law. The case was once again settled by the five-judge SC Bench in 1969 in the Sampat Prakash vs State of Jammu & Kashmir judgment.
“When a large bench of the top court has already, and unanimously, decided to protect Article 35 A, how can the Supreme Court reopen the case after 48 years?” Prakash, a veteran trade union leader, asked. “The attempt to remove it is a conspiracy of Hindu nationalists. It has to be saved.”
“We need to understand that J&K’s special status cannot be tinkered with politically. So, the BJP resorted to judicial process to achieve their motives,” Kashmir’s top lawyer Zafar Shah said.
But senior advocate and BJP’s Jammu-based spokesperson Sunil Sethi terms the judicial matter as BJP’s ideological issue. “We believe this article is a roadblock for J&K’s complete merger with the Union of India,” Sethi said.
Interestingly, besides Charu Khanna and Kulkarni, the third petitioner against Article 35 A is Labha Ram Gandhi, president of West Pakistan Refugees’ Action Committee, who was denied a ticket by the BJP in 2014 elections.
Before filing his petition against Article 35 A in the apex court in 2015, Gandhi and Kulkarni addressed a joint presser at Jammu in October 2015, threatening to mobilise public opinion against Article 35 A and launch a nationwide agitation for its abrogation.
“Article 35 A is ex-facie unconstitutional as it seeks to sanctify deprivation of fundamental rights of a class of citizens of India residing in the State of J&K,” Gandhi argues in his petition, referring to West Pakistan refugees, who have been seeking state subject rights in J&K since Partition.
But as Jammu has become a bastion of anti-Article 35 A voices, the NC’s Davendra Rana—the younger brother of MoS Home Jitendra Singh—has been trying to mobilise public opinion on the so-called Dogra pride linked with the state subject law in Jammu.
“Maharaja Hari Singh [a Dogra himself] had brought State Subject law on the plea of the Dogra Pratinidhi Sabha and Kashmiri Pandit Sabha in 1927,” Rana, NC’s provincial president from Jammu, said. “The law shielded Dogras from domination by wealthy non-state subjects, mostly from neighbouring Punjab, for the past 90 years, and hugely helped in preserving the identity and interests of the Dogras.”
There’s a strong apprehension that repeal of Article 35 A will lead to the economic deprivation and erosion of cultural identity of the Dogras, Rana warned.
Amid all this talk, if the legal challenge to Article 35 A succeeds, many say, it would increase alienation in Kashmir.
(The author is a Srinagar-based independent journalist.)