Article 35-A will go: Jihadis in Kashmir go berserk

The point is that Article 35-A weakens the sovereignty of the Indian State and gives absolute, unbridled and extraordinary powers to the state government

Will the Narendra Modi Government withdraw Article 35A? If the statements of the top BJP leaders and Finance Minister Arun Jaitley are any indication, the answer seems to be in the affirmative. It was on March 27 that BJP national general secretary and in-charge Jammu & Kashmir made the first statement in this regard in Srinagar. He said: “Article 35A and Article 370 will be part of the BJP election manifesto and the BJP will abrogate them” (Dainik Jagran, March 27). A day later (March 28), Finance Minister Arun Jaitley termed Article 35A unconstitutional and constitutionally vulnerable (The Hindustan Times, March 29).

it gives the right to the Jammu & Kashmir Government to discriminate between two State citizens living in the State on the basis of declaring some as Permanent Residents while leaving out the others

On March 29, Home Minister Rajnath Singh candidly admitted that “Article 35A has hurt the people of Jammu & Kashmir” and the “Union Government will do everything to retrieve the situation in the state”. He also added that “the Government of India had already banned separatist Jamaat-e-Islami and Jammu & Kashmir Liberation Front (JKLF) (ZeeTV interview, March 29). A day later, BJP national secretary and spokesperson RP Singh without mincing words denounced both Article 35A and Article 370 (ZeeTV discussion March 30). And, on March 31, BJP national president Amit Shah declared that “Article 35A will be abrogated in 2020”. He, in fact, said that “abrogation of Article 35A and Article 370 will lead to the resolution of the problem in Kashmir” (Greater Kashmir, April 20.

However, it was for the first time in 56 years that any top minister in the Union Government wrote and spoke comprehensively on the controversial Article 35A to set the record straight. It happened on March 28, the day Prime Minister Narendra Modi was to address Vijay Sankalp Rally at Jammu’s Akhnoor. It was Finance Minister Arun Jaitley who cleared all the cobwebs of confusion about Article 35-A. In fact, he only vindicated those who had been saying again and again since years now that Article 35-A was unconstitutional, illegal and discriminatory and that it was applied to Jammu & Kashmir through backdoor by a Presidential Order ignoring the Indian Parliament, the supreme law-making body, and by not invoking Article 368 of the Indian Constitution that empowers the government to amend the Indian Constitution.

Article 35A gives absolute and unbridled power to the Jammu & Kashmir Government to do two things: To define a group of persons as constituting Permanent Residents of the state and confer on them special rights and privileges as far as jobs under the state government and acquiring immovable property in the state are concerned.

Terming the incorporation of Article 35-A in the Indian Constitution a fraud, Arun Jaitley said that this Article “is constitutionally vulnerable”. “Article 35-A was neither a part of the original constitution framed by the Constituent Assembly nor did it come as a Constitutional Amendment under Article 368 of the Constitution which requires approval by two-thirds majority of both Houses of Parliament. It came as a Presidential notification and is a surreptitious executive insertion in the Constitution,” Jaitley said.

Reflecting on the baneful influence of Article 35-A, Arun Jaitley said: “it gives the right to the Jammu & Kashmir Government to discriminate between two State citizens living in the State on the basis of declaring some as Permanent Residents while leaving out the others. It also discriminates between Permanent Residents of the State and all other Indian citizens living elsewhere. Lakhs of Indian citizens in Jammu & Kashmir vote in the Lok Sabha elections but not in Assembly, Municipal or Panchayat polls. Their children cannot get government jobs. They cannot own property and their children cannot get admitted to government institutions. The same applies to those who live elsewhere in the country. The heirs of ladies marrying outside the State are disinherited from owning or inheriting property” located in Jammu & Kashmir.

Rahul Gandhi’s Congress also exposed its anti-India credentials. Gandhi fielded Soz and Mir to attack the BJP and defend Article 35A and Article 370.

Obviously, Arun Jaitley was referring to about 2 lakh Hindu-Sikh refugees from Pakistan living in different parts of Jammu province, especially Jammu, Samba and Kathua districts, since their migration in 1947. They have the right to vote in the Lok Sabha elections, but not in the Assembly, Municipal and Panchayat elections. The story of the Valmiki community living in Jammu since 1957 is identical. They are eligible only for sweepers’ job. The fact of the matter is that they do not have any citizenship right in Jammu & Kashmir. Similarly, no non-state subject, not even the President of India, the first Indian national, and Prime Minister of India, the chief executive head of the country, can buy even an inch of land in Jammu & Kashmir. Similarly, children of Jammu & Kashmir women married outside the state with non-state subjects cannot inherit their mothers’ properties located in the state. They do not even have the right to vote in the Lok Sabha elections though they are Indians.

The point is that Article 35-A weakens the sovereignty of the Indian State and gives absolute, unbridled and extraordinary powers to the state government to grant or to not grant citizenship to an individual or a group of individuals who are not Permanent Residents of Jammu & Kashmir. Not just this, it promotes politics of exclusiveness and separatism with the Kashmir-based parties like the Congress, the National Conference, the Peoples Democratic Party, the Peoples Conference, the CPI-M and who not opposing tooth and nail the just demand seeking parity between the people of Jammu and Kashmir and all other Indians.

Arun Jaitley also catalogued some other negative effects of Article 35-A. He said that “Article 35-A is not only used as a political shield by many (in Kashmir), but it also hurts the common citizens of the state the most”. “It denied them a booming economy, economic activity and jobs,” he said.

As was expected, the unambiguous statements of the BJP leaders and ministers rattled the jihadis in Kashmir, who masquerade as the mainstream leader. National Conference president and co-founder of the JKLF Farooq Abdullah and his UK-born son and party vice-president Omar Abdullah, former BJP-made Jammu & Kashmir Chief Minister Mehbooba Mufti, Congress leaders, including Jammu & Kashmir Pradesh Congress Committee (JKPCC) chief Ghulam Ahmad Mir and former JKPCC chief and Union Minister Saif-ud-Din Soz, People’s Conference chief Sajad Lone, Communist Party of India, Marxist (CPI-M) state secretary Mohammad Yousuf Tarigami, to mention only a few, all spoke in one voice and threatened that Jammu & Kashmir will secede in case Article 35A and Article 370 were abolished.

What did these votaries of separate status say? Farooq Abdullah said: “Article 370 and Article 35A sanctify link between New Delhi and Jammu & Kashmir. They (BJP) are hell bent to degrade our constitutional status. Their assertions reveal their anti-Kashmir agenda. We have never allowed anybody to enslave us and we will never give up on that traits of ours. We will fight. If Article 370 and Article 35A go, Jammu & Kashmir’s accession with India will end”.

Omar Abdullah said: “If you (BJP) want to debate Article 370 and Article 35-A, then there will be questions raised on the accession as well, because accession was on these very terms. As far as their removal is concerned, we won’t let that happen. This State and its people were promised in 1947 and that promise wasn’t restricted to time. Nobody said it was for 10 years or 70 years, we were told that till Jammu & Kashmir is part of India, this State would have this special provision, the day you remove this special status, then what relation we have with the country. Our relationship is based on this…If you are talking about the removal of Article 35A and Article 370, but at the same time you need to discuss instrument of accession then”.

Mehbooba Mufti said almost the same thing. “The relationship between Jammu & Kashmir and New Delhi will be over if Article 370 is scrapped. If you break that bridge (Article 35A and Article 370)…then you will have to renegotiate relationship between India and Jammu & Kashmir…There will be new conditions between India and Jammu & Kashmir and that the people would be forced to even think whether they want to join India or not. A Muslim majority state, would it even want to stay with you,” said Mehbooba Mufti.

The reaction of Sajad Lone was no different. He, in fact, said, that Jammu & Kashmir was a sovereign country and New Delhi couldn’t interfere in the state. “Article 35A and Article 370 are articles of trust. Even thoughts of tinkering with these Articles would be a sin. Article 35A is a matter of faith and dignity for the people of Jammu & Kashmir through which the Constitution of India guarantees to safeguard the special identity and unique status of Jammu & Kashmir. In matters of pride and identity, profit and loss is immaterial. Can a country allow a foreign country to undermine its sovereignty and national pride just for the sake of some monetary gains”.

Rahul Gandhi’s Congress also exposed its anti-India credentials. Gandhi fielded Soz and Mir to attack the BJP and defend Article 35A and Article 370. Soz said: “If Article 35A goes, the state’s relationship with the Union will be impaired, beyond repair”. So much so, he said that “Arun Jaitley has gone berserk” and that “he (Jaitley) is going whole hog with the Prime Minister Modi’s perception”.  As for Mir, he said: “No power can revoke Articles 370 and 35A of the Constitution and the provisions are a bridge between the people of the state and the Union of India”.

As far as CPI-M state secretary was concerned, he said: “Communal forces are conspiring to remove Article 35A. It is essentially the agenda of communal, divisive and anti-democratic forces, who want to thrive on uncertainty, discard, hatred and turmoil. The statement of Arun Jaitley that Article 35A is constitutionally vulnerable reveals the real intentions of the saffron party vis-à-vis special status of the state. They are misrepresenting the Constitution and the state”.

Now that some top-ranking Union Ministers and BJP leaders have termed Article 35-A unconstitutional and discriminatory, it is time for the President of India to withdraw it

What all these jihadis in Kashmir said established that they are the modern days Jinnahs whose single-point agenda is to convert Jammu & Kashmir into a theocratic state and further hurt the already rather hurt people of Jammu and Ladakh. Their whole assertion that the state’s relations with New Delhi will end if Article 35 A and Article 370 are removed is as flawed as it is communally motivated. These Articles have nothing to do with the state’s accession. Article 370 was applied to Jammu & Kashmir on January 26, 1950, and Article 35A on May 14, 1954. These were the Nehru’s two big conspiracies he hatched to enable Muslims in Kashmir to Islamize J&K and assume independence. Sadly, Union President Rajendra Prasad joined hands with Nehru overlooking the fact that he was the country’s constitutional head. It needs to be underlined that the Instrument of Accession signed by Maharaja Hari Singh was no different from the Instrument of Accession signed by 560-odd other princely states. It was 100% same.

Delhi-based NGO “We the Citizens”, Delhi-based Kashmiri Charu Wali Khanna, West Pakistan refugee leader Labha Ram Gandhi, Jammu-based group Ikkjut Jammu and educated Valmikis Radhika Gill, Eklavya and Vijay Kumar have all approached the Supreme Court of India. They have challenged the constitutional validity of Article 35-A on the ground that it violated their right to life, right to equality, right to equality of opportunity and right to reside and settle in any part of the territory of India. The apex court fixed a number of dates for hearing but both the Central Government and Jammu & Kashmir Government got the hearing adjourned again and again on spurious grounds. Sometime on the ground that the people of Jammu & Kashmir had to elect panchs, sarpanchs and municipal committee members. Sometime on the ground that the Government of India had appointed interlocutor Dineshwar Sharma and hearing of PILs against Article 35-A will hamper his work. Sometime on the ground that Article 35-A is a sensitive issue and it is for the larger constitutional bench of the Supreme Court to decide it.

The whole truth is that Jammu & Kashmir Government has opposed all the PILs challenging the constitutional validity of Article 35-A and the Union Government has till date not filed its affidavit spelling out its stand on this Article.

Now that some top-ranking Union Ministers and BJP leaders have termed Article 35-A unconstitutional and discriminatory, it is time for the President of India to withdraw it. He has the power to withdraw it because it was he who applied Article 35-A to Jammu & Kashmir through an executive order. Its removal is a must to defeat the separatists and half-separatists in Kashmir and grant to all Indians their natural right to settle and work in Jammu & Kashmir. India is one nation and it can’t have two laws.

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Hari Om

Hari Om is former Dean, Faculty of Social Sciences, University of Jammu.

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