For J&K’s Regional Parties, Article 35(A) Is Their Trump Card Against Separatists, Fear Losing It

Political activities in Jammu and Kashmir have intensified as soon as the Supreme Court on last  Friday agreed to hear after Diwali petitions challenging Article 35(A), relating to special rights and privileges of permanent residents of the state.

The row over the Article 35 (A) of the Constitution of India has given a new lease of life to the regional parties, which have been looking for a real big issue to make their presence felt. The last big issue, which witnessed the regional parties coming together to target the Centre, was the clashes between civilians and armed forces following the killing of Hizbul Mujahideen commander Burhan Muzaffer Wani on July 8, 2016.

So much so that the ongoing protests against the petitions challenging Article 35(A) have forced the ruling People’s Democratic Party to come out and make allegations that its rivals -- the National Conference and the Congress -- were not fulfilling the role of the Opposition properly.

Chief minister Mehbooba Mufti had earlier this month met Union home minister Rajnath Singh and Prime Minister Narendra Modi to convey her concern as the attorney general of India did not file any counter petition  against the petitions challenging Article 35(A),

The Supreme Court had last month asked the Centre to file a reply within three weeks to a writ petition filed by an NGO seeking that Article 35(A) be struck down. The plea said the state government, under the guise of Article 35(A) and Article 370, which grants special autonomous status to the state, has been discriminating against non-residents who are debarred from buying properties, getting a government job or voting in the local elections.

Realising that the Article 35(A) has a potential to galvanize public opinions in their favour, the Congress and the National Conference filed separate petitions.

Many separatist leaders, who are being grilled by the National Investigation Agency (NIA) these days over the money laundering case, look uncomfortable fearing that the Article, if tinkered with, might change the demography of the state. However, some separatist leaders see it as a "pro-India" issue.

“All pro-India politics in Jammu and Kashmir since 1947 has been about the special status to state. Sheikh Abdullah had agreed for accession only when he was guaranteed the special status. If the Article goes whole pro-India polity, Kashmir would crumble down,” says a separatist leader.

He alleged that the Article 35(A) is essentially an issue for the “survival of pro-India forces in Kashmir”. “It is an issue which they have to sort out”, adds the separatist leader.

Political analyst such as Riyaz Ahmad, who writes for Greater Kashmir – the largest circulating daily of J&K – says regional parties such as the National Conference and the Peoples Democratic Party will lose raison d’être if the Article 35(A) is scrapped.

The chief minister, ahead of meeting PM Modi in New Delhi on July 28, had argued that the people of Jammu and Kashmir, despite being a Muslim majority, decided to accede to India and they rejected the two-nation theory and Pakistan.

Mufti was among the first to raise the red-flag over the issue. She said there would be no one to “hoist the tri-colour” in Jammu and Kashmir if Article 35(A) is tinkered with. "On one hand, we talk of resolving the Kashmir issue under the framework of the Constitution, on the other hand, we flog it. Who is doing it? Why are they doing it?” she asked, referring to those who are filing petitions against the Article 35(A) and the Article 370.

Mufti also said: "Let me be very clear. By doing this (challenging the Article 35A), you are not targeting the separatists. Their (separatists) agenda is different, and it is secessionist. But, you are weakening those powers which are Indian and not only trust India but also participate in elections, and who fight to live a life honorably in Jammu and Kashmir.”

National Conference (NC) working president Omar Abdullah invoked condemnations from the Hurriyat Conference when he said the Article 35(A) or Article 370 were not an issue for the separatists.

On August 14, he was categorical when he said separatist leaders have no business with about the Article 35(A) as they don’t believe in Indian Constitution. In fact, Abdullah has held campaigns in Jammu warning people that if the Article 35(A) is struck down, it will adversely impact Jammu and Ladakh regions.

Abdullah, who held a series of public meetings in Jammu region on August 29, told the people of Darhal in Rajouri that the Constitution of India “can’t be anti-national”. He asked how can fingers be raised against the National Conference for opposing the “clandestine moves of repealing the Article 35(A), which is a constitutional guarantee to the people of Jammu, Kashmir and Ladakh.

The former chief minister of the state, however, accused the PDP of joining hands with the BJP to erode the special status. “The BJP is working on a planned strategy drawn as back as the conception of the PDP in 2000. The pen and inkpot party (PDP) had been conceived to further the agenda of the RSS and the BJP,” he alleged.

What is Article 35(A) and why it is under challenge?

The Article 35(A) is constitutional provision that empowers the J&K legislature to define “permanent residents” of the state. The article was added to the Constitution through the “Constitution (Application to Jammu and Kashmir) Order, 1954”, issued under the Article 370.

On November 17, 1956, the J&K Constitution was adopted. It defined a permanent resident of the state a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has “lawfully acquired immovable property in the state”. The J&K assembly can change the definition of permanent resident through a law passed by two-thirds majority.I

In 1927, the permanent resident law replicated a state subject law promulgated by the Dogra king Maharaja Hari Singh following a strong campaign by Kashmiri Pandits, who were opposed to the hiring of civil servants from Punjab, because it had affected their representation in the Dogra administration.

The law provides special privileges to the state subjects in terms of acquiring land in the state, employment and scholarship.

In 2014, a petition was filed by a non-governmental organisation “We the Citizens” -- widely believed to be affiliated with the RSS -- arguing that the Article 35(A) is unconstitutional because it was added by a Presidential order, without the approval of Parliament.

In 2015, West Pakistan Refugees filed a petition against the article on the grounds that it creates a “privileged” class of permanent residents, who are entitled to various rights. The West Pakistani Refugees are not entitled to vote in the assembly, unlike PoK refugees who have full rights as that of State Subjects.

Now, a petition filed by two women -- Dr Charu Wali Khanna and Seema Razadan – that challenges the article. Their petition says that the article promotes “gender bias and discrimination”. Khanna argues that she has “anecdotal proof” that she is a State Subject as her ancestors left Kashmir during the Afghan rule (1752-1819).

With the three petitions filed against the Article 35(A) and many, including the National Conference and the Congress, rushing in to file petition in support of the article, the separatists and Pakistan are keenly watching the development.

Senior separatist Syed Ali Geelani said the article was a matter of concern of the Hurriyat Conference as it would impact the final solution of the Kashmir dispute, in case, the demography of the state is changed.

In Pakistan, the Hurriyat Conference on August 28 held a conference “Indian Designs to Change Demography of Kashmir-Violation of UN Resolutions and International Law”. In the seminar, former ambassador to India Abdul Basit said Pakistan should abandon its apologetic stance and move towards active diplomacy to revive the Kashmir issue at international forums..

Justice Hasnian Masoodi, a former judge of the J&K High Court, says the Article 370 gives the President of the country the power to extend constitutional provision to the state with concurrence of the state government or in consultation with the state, with modifications and exceptions.

“The argument of petitioners is that the President may apply constitutional provisions with modifications and exceptions, but he cannot apply a new provision, which is not part of the Constitution of India”, he says.

He adds that since there are some laws applicable in the state that give special privileges to the permanent residents, and to save them from challenge on the grounds that they are discriminatory in character, Jammu and Kashmir has the Article 35(A) in force.

“The controversy is that the President can modify with exceptions and modification constitutional provision to J&K, but cannot create a new provision. But in terms of the Article 370 1(D), the President has the power to apply a constitutional provision to the state, of course, after the concurrence with the state government with exceptions and medication as the President by order may specify. The President was of the view that the Article 35(A) falls within the purview of the expression, exceptions and modification, that finds a place in the Article 370 1 (D). The Article 35(A) is valid and beyond challenge”, he says.

“We have to read the Article 35 and 35(A) together as the Article 35 also deals with the same subject and Article 35(A) is in continuation with it.

However, if the Supreme Court strikes down the law it doesn’t mean the permanent resident law of the state will go. “But they will become vulnerable to challenge”, says Masoodi.

Naeem Akhtar is PDP-BJP government spokesman and tells Outlook that lies are being spread to create frenzy in the country about the Article 370 or Article 35(A) and its provisions. “Like, if a woman from J&K marries outside, she loses property rights. It is a lie and it is being spread to mislead public opinion in the rest of the country. The factual position is settled by the court long ago and any woman who marries outside has property rights. There are many women who married outside J&K and own property in the state,” says Akhtar.

In fact, Abdullah recently told reporters in Jammu that his sisters, who are married outside the state, own property in Kashmir as much as he does.

Akhtar describes the argument that elites of Jammu, Kashmir and Ladakh are buying property outside, but they are debarring others to have same rights in J&K, as “illiteracy of history.” He says there are places in Northeast and in Himachal where the State Subject laws debar others to purchase land.

“For Jammu and Kashmir, this is not a concession, because the state stood out and defied two-nation theory when everybody, including national leadership of India, accepted the partition. We were never part of the discourse that led to partition and when it was forced on us we chose to go with India”, says Akhtar.

He says all three regions of the state have distinct identity, which needed to be safeguarded.