Article 35A: BJP won't let it go away in run up to 2019

Despite Union Home Minister Rajnath Singh’s recent assurance that the BJP-led government will not go against the wishes of the people of Jammu and Kashmir on constitutional provisions that guarantee special privileges to the violence-hit state, the debate over Article 35A refuses to die down. He had said the Centre had neither initiated any action nor gone to court on the legal challenge to Article 35A, which bars people from outside the state from acquiring immovable property in J&K. He called the revocation of the provision a "non-issue" and said it was being raised by people who had “nothing else to talk about”. Rajnath’s statement came while he was on a four-day visit to the state in the second week of September.

The positivity exuded by Rajnath served like a balm on the wounds of the people of the state, and also silenced the voices against Article 35A for a few days. It seemed like the issue had been settled. However, as the dust was settling down over the issue, RSS chief Mohan Bhagwat's assertion last week that "necessary constitutional amendments" were needed to "completely assimilate" Kashmir into the rest of the country again stirred up the hornet's nest.

Hardline Hurriyat Conference leader Syed Ali Shah Geelani denounced the BJP-PDP coalition for "their unceasing attempts to tamper with the state's political, cultural, economic and historical status." The opposition National Conference questioned as to what happened to Rajnath’s assurances of status quo on the special status? It also targeted the PDP for its "surrender" to the BJP-RSS. After Bhagwat's statement, the Congress party asked PDP whether it wants power, or the rights of the people.

A slew of petitions challenging Article 35A in the Supreme Court has raised tensions in Kashmir, where both mainstream and separatist leaders fret over potential demographic changes if the provision is struck down. There is contradiction within the BJP as well over the issue of special status to the state. Just days after Rajnath's assurances, state BJP leader and Deputy Chief Minister Nirmal Singh contradicted the Union home minister’s assertions when he said that special status had caused harm to the state and called for abrogation of Article 35A and Article 370. The BJP national general secretary Ram Madhav reportedly said that everybody has to accept the Supreme Court verdict on a petition challenging Article 35A.

Article 35A, a provision under Article 370, gives Jammu and Kashmir legislature the power to define the “permanent residents” of the state and provide them with special rights and privileges. It was enacted in the Constitution by a Presidential Order in 1954 with the then J&K government's concurrence. In 2014, a little known Delhi-based NGO, "We the Citizens," filed a petition in the Supreme Court seeking that Article 35A should be abrogated while arguing that the provision was “unconstitutional” and approved without any debate in Parliament. In August this year, a Kashmiri woman, married outside the state, also challenged the legality of Article 35A. She claimed in her petition to the apex court that the said law takes away her “succession rights” and was discriminatory towards women natives of the state.

The contradictory statements by Sangh Parivar leaders over Article 35A indicate that they want to keep the pot boiling for some more time. With parliamentary elections about 18 months away, the BJP wants to play the card of revocation of Article 35A well. Political observers believe that the BJP government would like the apex court to announce its decision sometime in the summer of 2018, which would help the party encash the issue for electoral gains. They believe that the Centre would push in the Supreme Court that the law should be repealed for being gender-biased, rather than challenging its anomalous status in the Constitution as a Presidential Order.

Political observers say that if the apex court repeals the law for being "anti-women", the BJP can kill two birds with one stone. One, it will take the credit for initiating the process for scrapping an "anti-women" law and also calm down its alliance partner PDP that other presidential orders vis-a-vis J&K won't be touched. Of late, the BJP has been projecting Article 35A as being biased against women and has been saying that the opposition to a plea in the Supreme Court was aimed at influencing the court proceedings.

It is Chief Minister Mehbooba Mufti who is up against the biggest challenge of her political life. If Article 35A is revoked, she risks the chance of her Kashmir-centric party either getting wiped out or becoming irrelevant. She is trying to rally support over the issue in the Valley over what many here believe is a "legal onslaught on its exclusive rights."

The PDP and the National Conference have been vociferously opposing any idea to revoke Article 35A. The two major regional parties of the state know that the space for the mainstream is shrinking due to the unabated violence in the Valley and they will face an existential crisis if the provision is shot down. It was perhaps with this in mind that Mehbooba in August warned the Centre that "there will be no one to carry the tricolour in the state if Article 35A is tinkered with." Her predecessor and NC leader Omar Abdullah warned that its abrogation would provoke a bigger agitation than the 2008 Amarnath unrest.

Assurances or no assurances from the BJP, the stand of the Modi-led NDA government is clear on the issue. The Centre has not filed a counter-affidavit in the matter in the apex court, and that is giving Mehbooba sleepless nights. By abstaining from filing a counter-affidavit, Delhi is seen to be endorsing the petitioner’s position. With separatists already raising the pitch on the issue, J&K will continue to be tense over the next several months.

DH News Service



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