Political storm in Kashmir over Article 35A

The petition in the Supreme Court challenging the special status of Jam-
mu and Kashmir under Article 35A of the Constitution has kicked up a political storm in the Valley.

Article 35A, a provision of Article 370, gives the Jammu and Kashmir legislature the power to define the “permanent residents” of the state and provide them with special rights and privileges. It was inserted into the Constitution by a Presidential Order in 1954 with the then J&K government’s concurrence. Presidential orders are issued with respect to J&K under Article 370, which grants special autonomy to the state.

Article 35A bars citizens from other parts of the country from acquiring immovable property in the state, taking up jobs with the state government, availing state-sponsored scholarships, or settling permanently anywhere in the state. Its genesis can be traced to Dogra-era legislation when restrictions on outsiders buying land were put in place through the Permanent Residents Act. It came subsequent to the 1952 Delhi agreement, between the then Prime Minister of India Jawaharlal Nehru and the then head of J&K state Sheikh Abdullah, which dealt with the extension of Indian citizenship to Jammu and Kashmir “state subjects”.

In 2014, a little-known Delhi-based NGO “We the Citizens” filed a petition in the SC seeking that Article 35A sho­uld be abrogated, arguing that the provision was “unconstitutional” and approved without any debate in Parliament. The PDP-led Jammu and Kashmir government vehemently opposed any revision of the Article but the Centre refrained from backing the state’s plea in the SC in 2015.

Although in 2002 the J&K High Court had ruled that the daughter of a permanent resident who marries a non-state subject would not lose her status as a permanent resident, recently a Kashmiri woman married outside the state also challenged the legality of Article 35A. She claimed in her petition to the SC that the said law takes away her “succession rights” and “disenfranchises her.” Responding to the plea, the SC sent notices to the Centre and the state last month. The petition contends that Article 35A perpetuates gender inequality and strips a woman marrying outside the state of her permanent resident status.

The J&K government filed a counter-affidavit asking for the plea to be dismissed, alth-
ough Attorney General K K Venugopal, representing the Centre, refused to do so. He told the bench headed by Chief Justice J S Khehar that the Centre wanted a “larger debate” on this “very sensitive issue.” The court referred the matter to a three-judge bench and set six weeks for final disposal. That period ends at the end of August.

The debate in the SC over the abrogation of Article 35A raised tempers in the Valley and brought political adversaries, the opposition National Conference (NC) and the ruling PDP, as well as separatists on the same page. Even the Congress and CPM joined the united opposition to oppose the move. Chief Minister Mehbooba Mufti, whose PDP is in an alliance with the BJP, was the first to raise the revolt when she said that there would be no one to “hoist the tri-colour” in Jammu and Kashmir if Article 35A is tinkered with. However, the state unit of the BJP reacted to Mehbooba’s remarks the same evening saying that Article 35A is “not a sacred cow that cannot be touched”. Both Articles 35A and 370 were meant to be temporary, the party argued.

The NC president Farooq Abdullah was more candid when he said abrogation of article 35A is akin to playing with fire and warned Delhi of more intense agitation than over the Amarnath land row of 2008 if the BJP government tries to dilute the special status of the state. In 2008, the decision to transfer 39.88 hectares of forest land to the Amarnath Shrine Board led to mass protests and killing of over 60 civilians and, ultimately, the fall of the Congress-led government in the state.

According to senior advocate and constitutional expert Zaffar Shah, scrapping Article 35A would raise the question about the legality of all constitutional orders from 1950 onwards. “The constitutional link between the Union and the state will be snapped and the position of the state will be the same as it was before constitutional arrangements were worked out,” he says.

Govt’s stand

This is not for the first time that Article 35A has been challenged in the SC. Similar petitions have been dismissed by the court thrice in 1956, 1961 and 1970, while upholding the powers of the President to pass constitutional orders. However, according to former advocate general of J&K Mohammad Ishaq Qadri, the Government of India’s move to not file an affidavit this time “implies that they are accepting the petitioner’s version.”

“The law is settled that if you don’t rebut the allegations and contentions of a litigant, it is deemed to have been accepted, and by that view we can conclude that the Government of India’s latest stand is on similar lines,” said Qadri, adding that New Delhi’s silence has put the state government in the dock.

The issue could snowball into a major controversy in the coming days as the Valley is already reeling under unrest and street protests after the killing of Hizbul Mujahideen commander Burhan Wani last July. The strike called by separatists on August 12 against the proposed abrogation of Article 35A evoked massive response across the Valley. The separatists are planning to mobilise people again in the coming weeks over the issue. Hurriyat hawk Syed Ali Shah Geelani, terming the plan to tinker with Article 35A “a conspiracy to create a Palestine-like situation in the state”, warned that the people of the state would resist it tooth and nail.

Any hasty step on Article 35A has the potential to inflame an already tense and sensitive situation in the state. There is enough potential in the controversy to cause further provocation in the volatile Valley, besides polarising the rest of the state on communal lines. The fear of losing their permanent residency, employment, property and scholarship to outsiders is keeping Kashmiris on the edge.