Sunday, August 5, 2018

Crisis Over 35A: What Happens If Covenant Is Broken

The clock is ticking on the final disposal of the case against Article 35A. Any decision by the Supreme Court will have far-reaching consequences. Chief Minister Mehbooba Mufti has already raised the bar after she met with the Prime Minister and sought his intervention to avoid the crisis Image result for photo of justice

On Saturday, there was a complete shutdown in Kashmir against any attempt to strike down Article 35A of the Constitution which defines Permanent Residents of the state and prevents outsiders from buying and owning property in the state. This is the first time that Kashmir has observed a shutdown to protect a provision of the Constitution of India.

On the face of it, this is a huge departure from Kashmir's predominant separatism which doesn't recognise the Indian Constitution. In the last 28 years of the separatist movement, different groups have called for over 2,200 days of shutdown - totaling 6 years- for Azadi and a plebiscite.

Transcending the ideological divide, Article 35A has brought the mainstream, separatists and all other sections of society together on a common cause. The issue is that Article 35A is considered the bedrock of the special status promised to Kashmir. An NGO backed by right-wing groups has challenged it on the grounds that it violates the fundamental rights of citizens of India including owning property and the right to reside and settle in any part of the country.

Separatists are using the issue to drive home the point that Kashmir's accession to the union of India by Maharajah Hari Singh on October 26, 1947 was not in the interest of Kashmir and the challenge to the validity of the provision underscores the fragility of constitutional guarantees given to the people of Kashmir. For mainstream political parties, who are confronting their biggest ever crisis these days, leaders are unsure if they can continue as mainstream (pro-India ) politicians if the Supreme Court strikes down the law.

mehbooba mufti pm modi
Chief Minister Mehbooba Mufti has sought PM Modi's intervention to avoid the crisis.
The petitioner has contended that the Constitution of India can be amended only by parliament and that Article 35A was outside the jurisdiction of the President of India because it doesn't fall under the purview of Article 370 which empowers the President to amend or modify laws related to the Constitution of Jammu and Kashmir.

When Article 35A was introduced in 1954 it supplemented J&K state subject law enacted by Maharaja in 1927. As per the instrument of Accession central government's jurisdiction over Jammu and Kashmir was limited to Defense, Communication and Currency. All other matters including residuary powers are vested with the state. After the Constitution of India came into force in 1950, Part II of the Constitution dealing with citizenship was not made applicable to Jammu and Kashmir and parliament had no power to make laws for the state on citizenship. The people of Kashmir continued to remain state subjects and not citizens of India.

In his book "The Constitution of Jammu and Kashmir", Justice A S Anand, former Chief Justice of Supreme Court, writes there were historical and political reasons which necessitate such constitutional safeguards for the state. "Firstly, the Government of India did not want to exercise too much of authority over Kashmir since it had committed itself to giving an opportunity to the people of Kashmir to finalise their future affiliations".

It was this very reason that Article 370 which gives special status to the state was also kept temporary. The autonomy resolution passed by the J&K assembly in 2000, which asks for restoration of the 1953 position, also recommends that the word "temporary" be omitted so Article 370 becomes a permanent feature of the Constitution of India.

It was after the constituent assembly of Kashmir ratified the state's accession to the Union of India in 1954 that the issue of citizenship was discussed. After deliberations between the representatives of the state and the union, it was agreed that state subjects of J&K will also have citizenship of India. Following this agreement, the term "state subject" was replaced by "Permanent Residents", and the President of India in consultation with the state government issued the constitution order of 1954 and Article 35A was incorporated.

Those who want the abrogation of the Presidential order of 1954 can't see the wood for the trees. Article 35A was not introduced in isolation. It is effectively linked to the larger of question of citizenship and applicability of constitutional provisions to people of the state as citizens of India. The contention that the President doesn't have authority to introduce law outside Article 370 would mean that Presidential order of 1954 is ultra virus and the people of Jammu and Kashmir will revert to being "protected subjects" of the state and not citizens of India.

But more than constitutional and legal questions, the special status of the state has been and is one of the most debated and contentious subjects in the country. The BJP has historically opposed it and asked for the abolition of Article 370 and special status for the state. But after the party forged an alliance with the PDP in Jammu and Kashmir, they promised to maintain the special status in the Agenda of Alliance which defines their partnership in running the government.

While political rhetoric over J&K's separate Constitution and state flag continue to dominate the discourse, the BJP in its core base of Hindu-majority Jammu effectively blocked the government's move to allot mining contracts to non-residents of the state last year. In June 2016, the party's MLAs joined regional parties in the assembly and forced the government to cancel these contracts. Speaker Kavinder Gupta who calls himself a proud RSS man was quick to constitute a panel on the violation of special status provisions and senior officers of the Geology and Mining Department were suspended.

The clock is ticking on the final disposal of the case against Article 35A. Any decision by the Supreme Court will have far-reaching consequences. Chief Minister Mehbooba Mufti has already raised the bar after she met with the Prime Minister and sought his intervention to avoid the crisis. She claims that Mr Modi has fully assured her that his government will abide by the Agenda of Alliance and the special status of the state will not be tweaked in any way. Going by Ms Mufti's assertion, it's now expected that Attorney General K K Venugopal will on behalf of the government defend the law in court.

So far, the Centre has not taken any stand on the issue which has unnerved the entire mainstream polity in Kashmir. While Ms Mufti's PDP is feeling the heat because its political existence is at stake, other leaders including from the opposition say any adverse decision would also go against their agreement of and support to accession with the union of India. More than 6,000 mainstream party workers, mainly from Farooq Abdullah's National Conference, have been killed during militancy just because they stood by the covenant.

(Nazir Masoodi is NDTV's Srinagar Bureau Chief)--NDTV

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