Scraping Article 35 A

The news regarding the abrogation of Article 35-A of the Indian constitution has set off alarm bells across the divide as the controversial move is by and large deemed as an Indian conspiracy to do away with the article 370 that grants autonomous status to the state of Jammu and Kashmir, differentiating the status of the disputed territory from other States of the Indian Union.

It is for the first time in the recent history of Kashmir that mainstream [pro-Indian] political parties and pro-freedom parties were seen on same page on the issue. Despite their ideological differences both the camps have shown their serious reservations on the matter and vowed to fight it tooth and nail. Mehbooba Mufti, the incumbent “Chief Minister” of Jammu and Kashmir in her prompt reaction had warned India that “if the provision went, there would be no one left to “protect the tri-colour” in Kashmir. National Conference leader Farooq Abdullah said that tinkering with Article 35-A would trigger an agitation “far stronger” than the Amarnath land row of 2008. The pro-freedom leadership on the other hand termed the move as a part of greater conspiracy to change the demographic complexion of Muslim majority state.

Article 35-A, which was incorporated in the Indian Constitution through a Presidential Order in 1954, accords special rights and privileges to the natives of Jammu and Kashmir. 63-year old law bars outsiders/non-state subjects from buying or purchasing land/immovable property in Kashmir. Pertinently, the state subject law enforced in the region was enacted by the then Maraja of Kashmir way back in 1927. The basic purpose of the law, apparently, was to stop the population influx from outside besides safeguarding the State’s identity.

So far as the Article 370 is concerned it determines the nature of relationship between India and Jammu and Kashmir. Later on, Delhi agreement between Jawaharlal Nehru and Sheik Abdullah in 1952 led to several additional provisions of the Constitution being extended to the State. The draft of the constitutional provision [370] was prepared by a team of Indian experts as well as the Kashmiri representative. It is said that Sheikh Abdullah who was then prime minister of Jammu and Kashmir wanted certain constitutional guarantees regarding the State’s autonomy, which to the utter dismay of Abdullah were not adhered to by New Delhi.

Notwithstanding its commitments, India, since 1947, made several attempts to scrap the article but every attempt to dilute the provision was met with strong opposition by the Kashmiris. However, respective regimes in New Delhi, over the past several decades, adopted a step by step policy to erode the constitutional provisions, which were incorporated in the Indian constitution on temporary basis. Not only the civilian governments but the military establishment of the country too has been quite wary of these articles.

History is that all the Indian political parties wanted to get rid of this constitutional provision but for the incumbent regime led by Narendar Modi it is perhaps the biggest eyesore and thorn in their eyes. Even nominal retention of the Article 370 is not acceptable to the BJP government as it believes that induction of Article 370 in Indian constitution by Nehru was a big blunder.

The BJP also believes that the constitutional provision is the main obstacle in the complete merger of disputed territory into Indian Union. It is with this intention that the BJP had incorporated abrogation of Article 370 as part of its party manifesto for the 2014 general election. After winning the elections, the party [BJP] along with RSS made several attempts for abrogation of Article 370.

The question is why BJP and its allies want scraping of article 370 and particularly the Article 35A of the Indian constitution? The answer is simple, scraping of the constitutional provisions, either through parliament or a judicial order, will provide BJP and Indian establishment an opportunity to manage things both at micro and macro level within and outside the disputed territory of Jammu and Kashmir.

In the recent past, an effort was made to settle West Pakistan Refugees in J&K, which was a clear violation of Jammu and Kashmir State Subject Law. Earlier, in contravention to Article 35A the Indian government signed a clandestine deal whereby 99 acres of forest land was unlawfully issued to Shri Amarnathji Shrine Board (SASB) in Kashmir to set up shelters and facilities for Hindu pilgrims. This caused a huge controversy followed by massive protests in the valley as a result the decision was revoked. Then there came to the fore the issue of establishing of Sainik colonies, separate Pandit townships and the implementation of a new industrial policy by the state government.

So the crux of the whole matter is that the BJP by hook or by crook wants to do away with all such constitutional provisions, which it believes are hurdle in implementing the party’s core agenda in Kashmir. Amendment in article 370 or scraping of 35-A would ultimately pave the way for India to change the proportion of Muslim population by settling non-state subjects in Jammu and Kashmir.

The Indian judiciary, having a history of bias against Kashmiri people, is now being used by the BJP as an effective tool to push forward its party agenda.  Filling of a petition by RSS-backed think-tank called Jammu & Kashmir Study Centre is in fact part of this game plan to remove the constitutional barriers, whatever. A Hindu women called Charu Wali Khan, settled somewhere in India, had also challenged the provision, saying that “it took away her succession rights”.

The demand for abrogation of Article 35, currently a subject of hot debate within the Indian media, has evoked strong opposition in Jammu and Kashmir, the mainstream parties [PDP and NC] and pro-freedom parties have voiced their serious reservations on the issue. Legal experts too have cautioned that if the Article 35-A is scrapped, J&K will lose all the special privileges including the state subject law, right to property, right to employment, and right to settlement.

Regardless of the reservations expressed by the pro-Indian political parties, the grave concerns voiced by the Hurriyat leadership vis-à-vis the Indian plan to change the demography in the region merits urgent attention of the international community and other stakeholders of the dispute as any such attempt would not only affect referendum outcome but would adversely impair the much awaited referendum process to be held in the disputed territory under the auspicious of United Nations.

Since the BJP government in India is following the foot steps of Israel to change demography in Kashmir, Pakistan being an important party to the dispute needs to raise the issue at international level and sensitize the international community about India’s nefarious plans.

About Arif Qureshi

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