Legal battle over opening up Kashmir

BJP attempts to scrap 1927 laws that give permanent residents rights

Legal battle over opening up Kashmir
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 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 has filed a petition in the Supreme Court to scrap Article 35-A that protects state subject laws. Only state subjects are entitled to own 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

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” is 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. The J&K Study Centre, 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.

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.

The joint resistance leadership comprising Syed Ali Geelani, Mirwaiz Farooq and Yasin Malik joined the chorus and called for a strike on August 12. 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.

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 the achieved BJP something by changing the discourse or it has 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.

What is Article 35-A?What is Article 35-A?

Article 35-A empowers the state legislature of Jammu and Kashmir to define ‘permanent residents’ of the state. These residents are then eligible for special rights and privileges which the legislature can provide.The laws made under Article 35-A cannot be challenged on the grounds that they affect the fundamental rights of other Indian citizens. Thus, a person from Uttar Pradesh cannot go to court saying that their right to equality is infringed on by a special right given to a permanent resident of J&K.The state legislature can give these special rights and privileges in only four categories:

1. Employment under the state government;

2. Acquisition of immovable property in the state;

3.  Settlement in the state; or

4. Right to scholarships and such other forms of aid as the state government may provide