Kashmir and the (ir)relevance of Article 35A


  • March 9, 2019
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The Supreme Court is set to hear a bunch of petitions against Article 35A of the Indian Constitution that gives ‘special protections’ for the state of J&K. But is this only a move to facilitate settler colonialism in the Valley, or is it also a political distraction from the larger question of Right to Self Determination? A GX report.

 

 

The Supreme Court is set to hear petitions on the question of ‘Constitutionality’ of Article 35A in its current session. After BJP’s sabotage of the albeit largely unpopular State Government last year, and imposition of Governor’s rule in the state, this latest move is feared by many to only further snapping of ties between the Indian administration and common Kashmiris.

 

Recent data on civilian and military casualties conclusively prove that RSS-BJP’s muscular policies in Kashmir have failed and muscle flexing has only led to stronger reaction from the ground. Regardless of attempts at banning political organisations or gagging the press, mass participation in the Kashmiri struggle for self-determination has swelled over the recent years. The push back on Article 35A is leading to escalating tensions in an already explosive situation.

 

Over the past few years, mainstream Indian media has arguably played the most instrumental role in escalating tensions in the Valley, and in the rest of the country regarding the Valley, through its constant war-mongering and blatant lies in the name of ‘news’. Lately only a few online and TV News networks have begun to criticise the BJP’s ‘iron rule’ in Kashmir. However, while doing so they have often suggested that Kashmir was “peaceful” following Atal Behari Vajpayee’s rule, continuing through the UPA regime, and it is with the BJP’s coming to power that the Valley has been thrown into turmoil. But the facts say something else. The relative phase of ‘calm’, if not ‘peace’, in the Valley post the militancy of the 1990s, set in 2002, with the coming to power of PDP in the state. Over five years from 2002 to 2007, the PDP Government took several steps towards containing the violence in the Valley, such as removal of some of the army barracks, release of some of the political prisoners including those who had sympathies with the separatists. This is also the period when PDP worked out close relations with the JeI.

 

An illegal Land Grab that sparked a Mass Movement

This period of relative calm in Kashmir ended in 2008 (and not 2014), with the Amarnath land row under the Congress-PDP coalition Government. On May 26, 2008, the Government issued an order permanently handing over 39.88 hectares of forest land to Shri Amarnath Shrine Board – the body that organises the AmarnathYatra in Kashmir. This led to large scale protests across the valley, since SASB is a non-Kashmiri body, and this was seen as a violation of Article 35(A) that protects special status of Kashmir – including the restriction of right to owning private land in Kashmir to only Kashmiris. Scores of protestors were killed. The BJP-RSS and their affiliates imposed economic blockade on Kashmir by blocking highways for extended periods. The Government fell. Governor’s rule was imposed. Senior Kashmiri leaders were attacked. Bharat Bandh was called by Hindutva groups claiming the land for SASB. This agitation was a watershed moment in the recent history of Kashmir, when the struggle for self-determination took the present mass character – because the common Kashmiri who had lived for decades under armed conflict, gave up on groups like PDP, JeI J&K, Huriyat etc., and the movement began to slip out of all of their controls.

 

Kashmir has seen huge mass uprisings since then. The 2010 ‘Intifada’, and virtually every year after that, leading upto the killing of Burhan Wani. After that the struggle reached new heights with even students and teachers with graduate and undergraduate degrees and jobs, reportedly joining the struggle. Earlier while people would flee from encounters, today common Kashmiris flock to the site in hundreds, at times thousands, when they get news about an ongoing encounter. This entire period was laced with fake encounters, killings, disappearances, rapes, pellet guns, stone-peltings. Today we have a young Kashmiri ready to blow himself up along with 40 other human beings

 

Article 35A: A historic contract

The Modi Government wants to at least weaken Articles 370 and 35A, if not totally scrap them. “BJP reiterates its stand on the Article 370, and will discuss this with all stakeholders and remains committed to the abrogation of this article,” said the party’s Manifesto for the 2014 elections. In a move that resembles a ‘triple talaaq’-like strategy, the lawyer from NGO ‘We The Citizens’, argued at a recent SC hearing that “if a native woman of the state married an outsider, she loses several rights, including property rights, in the state, but if a man marries a Pakistani woman, he and his spouse get all rights”.

 

Article 35A was added to the Indian Constitution by a Presidential Order in 1954, empowering the state’s legislature to frame laws without attracting a challenge on grounds of violating the Right to Equality of people from other states or any other right under the Constitution. In July 1952, as per of the ongoing process of setting the terms of Indian accession of Jammu and Kashmir, Sheikh Abdullah and Jawaharlal Nehru signed the Delhi Agreement.

 

One of the points agreed upon by the two parties was that domiciles of J&K shall be regarded as citizens of India, but the State Legislature was empowered to make laws for conferring special rights and privileges on the state’s subjects. Article 35A was the outcome of this agreement. According to 35A, no one except those defined as ‘permanent residents’ of Kashmir are entitled to property rights; participation in Panchayat elections, employment in state government; municipalities and legislative assembly elections; admission to government run technical education institutions; scholarships and other social benefits in Kashmir. This provision was added to the Constitution formally through the Constitution (Application to Jammu and Kashmir) Order, 1954, issued by the country’s first president, Rajendra Prasad, on May 14, 1954, through powers conferred by clause (1) of Article 370.

 

Such protection rights for permanent residents of politically sensitive areas are by no means special only to J&K. The Sixth Schedule of the Indian Constitution that protects land, livelihood and business of North-Eastern states including Assam says, “The Regional Council for an autonomous region … shall have power to make laws with respect to … inheritance of property” among other things. Non-residents in Adivasi areas are not allowed to buy property in FRA-protected forest areas. The Sangh Parivar has however fought for scrapping Article 370 and Article 35A since the beginning. This fight has been both ideological, political and legal.

 

 The Legislative Battle against 35A

In 2014, an NGO called ‘We The Citizens’ – reportedly backed by the RSS – approached the Supreme Court challenging Article 35A on the grounds that it was illegally added to the Constitution as it was never floated before Parliament. In July 2017, Supreme Court lawyer Charu Wali Khanna also challenged Article 35A on the grounds that it was discriminatory towards women. “Article 14 of the Constitution gives a fundamental right to equality before law. But 35A is heavily loaded in favour of males because even after marriage to women from outside, they will not lose the right of being permanent residents,” she told the court. However, in a landmark judgment in 2002, the full bench of the J&K High Court had settled this issue in ‘State and others vs Dr Susheela Sawhney and others’ by striking down the proviso of the state subject (permanent residency) law in the Constitution of J&K (Jammu and Kashmir has its own Constitution), according to which women marrying outsiders would lose their permanent resident status. The court however said that children of such women will still not enjoy succession rights, as per the Constitution. In 2013, Parabhjit Kour Modi – a woman from Jammu married to a non-J&K resident – filed a writ petition in the State High Court challenging the denial of her offspring the right to Permanent Resident Certificate, and consequently the right to acquire immovable property and a government job.

 

Last week the Government of India gave its nod to the promulgation of an ordinance for giving reservation benefits to SCs and STs in Jammu and Kashmir by amending a clause of Article 370, which gives special status to the state. J&K is home to a significant number of SC and ST communities, and many of them face considerable social repression in the state (Asifa was from the Bakarwals, a Scheduled Tribe community). However, this decision reportedly sparked fears in the valley of a complete removal of the special status in near future. “They may not scrap the article, they are definitely going to weaken it, and leave people with room to expect a full blow that can only happen if Modi is voted back to power. Like the temple will never get built, 35A will never get fully scrapped,” said another Kashmiri student that I spoke to.

 

“They are keeping Kashmiris busy”

A large part of today’s Kashmir however does not seem to care about things like Article 370, or Article 35(A) – largely seen as the Indian politicians’ tactic of denying the larger debate around ‘self-determination’. Separatist leaders have for long not cared much about these issues. Today however a large portion of the common Kashmiris also seem to have stopped treating such issues the way they did earlier.

 

These issues have for long been standard political tropes and promises in Kashmir, and every political party have used these issues one way or the other to consolidate their own vote banks. Post the 2008 Amarnath Land acquisition agitation, these debates, particularly planted and instigated by paid Indian media, have largely failed in hiding the “elephant in the room”. “They are keeping us Kashmiris busy on issues such as these so that we don’t get to ask the more basic and fundamental questions – those regarding the right to self-determination,” said one Kashmiri researcher.

 

“Kashmir knows Palestine”

Even if all this debate around 35A is ultimately an Indian Constitutional crisis when it comes to Kashmir, and may not mean much for those Kashmiris who are not that way invested in the Constitution of India given that the struggle for Self-Determination is by definition in contradiction with the established Constitution, what would it still mean for the average Kashmiri if 35A is abrogated?  “In today’s world, we know what happened with Palestine. Today’s Kashmiri youth has the example of how Israeli settler colonialism is being used to wipe out Palestine. Even small kids in Kashmir today know about 35A, 370 etc, and are talking about it. I didn’t know any of this when I was going to school in the ‘90s. But today everyone knows that removal of such protection would lead to what Israel did to Palestine after similar legislative manoeuvres there,” said one Kashmiri resident.  No one knows where this fight ends, but it is certain that any such move is only going to further distance Kashmir people from Indian politics and administration. The anger in Kashmir is so palpable that even Mehbooba Mufti while addressing a press conference in Srinagar recently, said: “If anything like that happens (tinkering with Article 35A), its consequences would be — I have said it earlier and my words were not taken well — that it would be difficult for those who raise the flag of this country to even shoulder it. If it (Article 35A) is attacked, I don’t know that which flag the people of Jammu and Kashmir would raise after dropping the Tricolour.”

 

The tensions of ‘war’ for mainland Indians might well be over. But for Kashmiris, the war never really stopped.

 

Cover Image (Courtesy: Kashmir Observer): Civil society organisations and business and trade bodies protesting against the petitions in the Supreme Court challenging the validity of Article 35A of the Constitution. (Abid Bhat/KO)

 

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