Article 35A: Kashmiris keep fingers crossed

Unless the Central govt submits an affidavit before the SC strongly defending Article 35A, the fears among the people in J&K will not go away, says an NCP leader.

During his last visit to Srinagar, union home minister Rajnath Singh assured that the Centre will not go against the sentiments of the people when it comes to safeguarding the unique status Jammu & Kashmir enjoys under different provisions of the Constitution.

He was responding to a question whether the government backs the moves being made by certain quarters, including an RSS-affiliated think-tank, to dilute J&K’s unique status or favours joining the battle for protection of Article 35A of the Constitution.

Article 35A empowers the J&K legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. The provision also imposes restrictions on people from other states owning immovable property in J&K and getting government jobs.

Many people in the state see a connection between the appointment of Dineshwar Sharma, a 1979 batch IPS officer and former Intelligence Bureau (IB) chief, as the government representative to talk to stakeholders in Jammu & Kashmir and the petition on Article 35A pending in the SC since 2014.

They suspect Mr Sharma was appointed to pre-empt a possible uncomfortable situation it could have landed in on the restive State as the apex court was hearing the petition challenging the validity of Article 35A.

A large section of Kashmiris also doubts the sincerity of the BJP-led Central government on the issue and fear that it favours weakening the laws that protect the interests of the people of the state and pave the way for settlement of outsiders in the state. The alleged the BJP-led Centre wants to alter the demographics of the Muslim-dominated state.

During his visit in September, the home Minister’s assurance on safeguarding the unique status Jammu & Kashmir had come as a breather to chief minister Mehbooba Mufti, who was being openly accused by the Opposition of not making a serious effort towards defending the 63-year-old law in the Supreme Court which has put off by three months the hearing on a petition challenging Article 35A.

Working president of the National Conference (NC) Omar Abdullah said that the home minister’s assurance will go a long way towards silencing the noises against Section 35A.

Mr Abdullah’s party colleague Ali Muhammad Sagar, who was part of the NC delegation that met Mr Singh, was not quite confident about the Centre’s commitment on protecting the Kashmiri’s interests.

“When we met him, he told us that a non-issue is being made into an issue unnecessarily. But he didn’t tell us categorically that Article 35A will not be diluted,” said Mr Sagar.

“Unless and until the Central government submits an affidavit before the SC strongly defending Article 35A, the fears and apprehensions among the people in J&K will not go away,” he said.

The angst was only strengthened when, a few hours after the home minister’s interaction with media in the Valley, a senior BJP leader said Article 35A will not pass judicial scrutiny as it was illegal.

The Centre has not only avoided filing an affidavit in defence of Article 35A in the apex court, but also failed to take a clear-cut position on the matter, leaving the outcome of the case wide open. Hence, the fingers remain crossed.

The Union government ’s decision to seek adjournment in the Supreme Court over the hearing on petitions related to Article 35A is seen by some as its admission of it being a political than legal issue.

Besides defining the rights of J&K residents, Article allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of “state subjects”.

The order on the unique rights of Kashmiris was issued by the President and Article 35A incorporated into the Constitution after the adoption of the provisions of the Delhi Agreement by the Constituent Assembly of Jammu & Kashmir.

The Delhi Agreement was reached between the first Indian Prime Minister Pandit Jawaharlal Nehru and his Jammu & Kashmir counterpart Sheikh Muhammad Abdullah (The head of the government in the state was called Prime Minister instead of chief minister till late 1960s).

The Agreement contained 10 points. One of these was that the state legislature will have powers to regulate the rights and privileges of “permanent residents” or “state subjects”.

Article 35A was devised specifically to give protection to the state subject laws, already defined and notified in 1927 and 1932 by the government of Maharaja Hari Singh, the last autocratic Dogra ruler who signed the Instrument of Accession with the Indian Union on October 26, 1947. Many people in J&K fear that if Article 35A goes it would pave the way for change in the demography of predominantly-Muslim state. The main Opposition party NC and likeminded groups and also the separatists believe that that is the sole aim behind the attempts being made to abrogate Article 35A.

Analyst Saadut Hussain said that any tinkering with Article 35A “will thus not only have far-reaching political consequences in Kashmir but also raise many legal and constitutional questions”.

Lawyer Zaffar Shah said that if Article 35A is abolished or declared invalid, the state laws related to permanent residency as a consequence will also go. “This will have a devastating impact on the present status of Jammu & Kashmir,” he said.

The ruling PDP and the Opposition NC, the Congress, the CPI(M) and other likeminded political parties and groups are all against attempts aimed at tampering with J&K special status.

These parties insist on Article 370 and Article 35A serving as a bridge between the state and the rest of India. “No one wants this bridge to collapse,” said former chief minister and NC president Farooq Abdullah.