Expert Take on Article 35-A: ‘Its abrogation will undo JK’s Accession with India’

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As pleas on JK’s State Subject Law or Article 35-A have finally come up for hearing in Supreme Court of India, concerns are growing in Kashmir. Amid paranoia and war frenzy, the political posturing and suspense on the issue has already made experts to caution New Delhi against any judicial misadventure.

Amid speculations and tensions, Supreme Court of India is about to hear pleas filed against JK’s State Subject Law—that safeguards the natives’ right over property ownership, government jobs and scholarships in the state—in the Indian apex court.

Ever since a “RSS-sponsored” petitioner was first filed against Article 35-A in SC in 2014, the judicial dateline has been keeping the valley on edge.

In case of any misadventure over Article 35-A, JRL—even Hizb’s operational commander, Riyaz Naikoo—warns mass uprising in Kashmir. At the same time, the local unionists, including the BJP’s former ally, PDP chief Mehbooba Mufti says that such a move “will render Kashmir’s Accession with India null and void”. She’s only reiterating what legal experts have been saying since long now.

But as the judicial suspense continues over the lingering fate of the Article, The Indus Post brings the expert talk on the State Subject Law, and why it matters for Jammu and Kashmir.

  • Prof.Siddiq Wahid, Academician-Analyst

The reason for this move by the BJP seems simple enough: First, it helps them in their arguments towards homogenizing India. Second, it could help them build their hegemony as a party and an ideology as “collective conscience” towards a majoritarian religious state, which they refer to as “Hindu India” without apology. If the pan-J&K State opposition to this move by the RSS-BJP combine is any indication, it could end up making things even messier, because the implications of its intent, which is demographic flooding, will change not just the politics but the economy, sociology and the psychology of the entire region. Also, there is a resistance in Kashmir because we are being deprived of the political rights and legal promises to us, because we are being taken for granted through the use of deceit and raw power. In that context, it would be inconsistent if the Hurriyat did not oppose threats to those rights in any form. Rather, what would be inconsistent is if the Hurriyat stood by silently as the BJP and RSS sought to further erode the tools with which it could argue for a resolution to the dispute. It would not be dissimilar to the situation between 1953 and 1965, when a politically less savvy civil society was relatively silent as the J&K State’s rights, liberties and freedom itself were encroached upon and abrogated.

  • Suhrith Parthasarathy, Lawyer-Writer

Any move to do away with it will damage the most solemn promises at the heart of the Indian federation. In any event, even if the court were to look beyond existing precedent, a proper reading of the text of Article 35A, and its constitutional history, will establish that the present petition is meritless; that Article 35A is not amenable to a conventional basic structure challenge.

  • Naeem Akhtar, Ex-Bureaucrat, Minister

The state subject law has served J&K and the country better than its absence would have. The state is a collage of ethnicities, all of which have flourished in a model that should guide other states. Scrapping of the special laws would close the last opening for reconciliation in Kashmir and therefore in South Asia. Handing out a final defeat to people of the state at the hands of their own country would come in a situation where even status quo could mean victory for them, so necessary for redeeming the 70 year-old jumla of winning hearts and minds of Kashmir.

Abdul Majid Zargar, Political Commentator

The plan to remove Article 35-A through judicial route is intrinsically connected with Kashmir dispute. RSS-BJP has launched the judicial attack on this article not for the love of Indians to acquire property in Kashmir for leisure or for Valmikis to get employment rights but with an objective to change the demographic character of the J&K State over a period of time which they think is solution to the Kashmir problem. If they are allowed their way, the nature of Kashmir dispute will change fundamentally and permanently and hence this matter pertains more to resistance leadership than to anybody else. Once outsiders are allowed such rights, they will also acquire voting rights in J&K. Whether they settle in Jammu or Kashmir is immaterial because the political power will gradually shift from people of J&K to outsiders. This will be catastrophic.

  • A.G. Noorani, Legal Luminary

Article 35-A is beyond challenge, because such amendments have been made under Article 371-A in regard to certain special rights conferred on Nagaland, Mizoram, Assam, Manipur, Sikkim, Arunachal Pradesh and Goa. It is a fact that these amendments were generally enacted under Article 368 by the Parliament in exercise of its amending power while Article 35-A was added to the constitution under Article 370, which again is a part of the Constitution of India. As such, Article 35-A flows inevitably from Article 370 of the Indian Constitution. The Constitution of Jammu and Kashmir enacted in 1956 has also put its seal on the relevant notification vide Clause 13. Those who challenge Article 35-A, conveniently forget that it was only Article 1 and Article 370 which were applicable to J&K at the time (1954), the Presidential order regarding addition of Article 35-A was made. As such, the Article 368 could not have been resorted to, for the addition of Article 35-A. It may not be out of place to assert that ‘Kashmir would never had acceded to India’ if it knew that decades later communal minded and chauvinist forces would like to wipe out the notification (Preservation of J&K special status and privileges thereof) which Article 35-A safeguards.

  • Zafar Inayat, Supreme Court Advocate

If the Article 35-A is deleted from the Constitution of India, the accession of the state with the Union of India is liable to be jeopardised. Article 35-A is not the only provision in the Constitution of India in its application to the State of Jammu and Kashmir, which has been added by the President by a Presidential Order issued under Article 370 (1). The ongoing turmoil, uncertainty and alienation will grow to the proportion which would be quite unmanageable. The special status and Article 370 will be reduced to a corpse in case Article 35-A is erased. The state will be thrown open to non-state subjects for acquisition of land and settlement. This will add to the sense of insecurity and the feeling regarding the loss of distinct identity. Consequently, it will not only be very harmful to the state but to the entire country. Disruptive elements will get encouraged and return of peace and normalcy will be a distant dream.

Srinagar: Kashmiri traders hold placards and raise slogans during a sit-in protest against the petitions in the Supreme court challenging the validity of Article 35A, in Srinagar on Sunday, August 05, 2018. Article 35A, which was incorporated in the Constitution by a 1954 Presidential Order, accords special rights and privileges to the citizens of J&K and denies property rights to a woman who marries a person from outside the state. (PTI Photo/S Irfan) (PTI8_5_2018_000064B)
  • Joint Resistance Leadership, Amalgam of Hurriyat

People of Kashmir will never allow their birth place to become another Palestine where Israel changed the demography by grabbing land and property of hereditary citizens of Palestine and settled outsiders to change the demographic character of the State. In case Supreme Court announces any verdict against the wishes and aspirations of people of J&K, from that very moment mass agitation will start across the State as people will hit the roads in protest and occupy them.

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