Anxieties over Article 35A

Kashmir Times


Anxieties over Article 35A

In the absence of an elected govt in J&K, the dangers of any dilution are enhanced

With the next hearing for the petition challenging constitutional validity of Article 35 A in the Supreme Court scheduled for August 6 at a time when Jammu and Kashmir is placed under governor’s rule and by virtue of that a BJP government at the Centre has the field open to itself, the public anxieties over the issue are not misplaced. Following widespread concerns of civil society and political groups especially in the Valley, Governor NN Vohra has requested the Centre to defer the hearing on Article 35A in the Supreme Court until the elected government is in place in the state, averring that the sensitivities and sensibilities on the provision are quite high. However, apprehensions that the governor being a representative of the central government is not ideally placed to represent the interests of the people of the state and that he may eventually follow the diktats of the Centre on the issue have not been allayed despite such media reports.

As yet, there is no official word on this request that is in the public domain only as part of media reports. Besides, the Governor’s advice is not essentially binding on the Centre and there are already media reports that the Centre might soon replace the governor, whose term has already ended but has been asked to continue till the culmination of the Amarnath yatra in mid-August. In such a scenario, the fate of the pending petition in the Supreme Court is unpredictable. The public anxieties are invoked by New Delhi’s hardline policy with respect to Kashmir and the long cherished dream of the BJP and RSS to completely do away with the special status of Jammu and Kashmir, even at the risk of creating a constitutional crisis. This historic project begins playing up psychologically on the minds of the public much more now, even though a year ago, the BJP government at the Centre had explicitly mentioned that it would not take a definite position on Article 35 A and allow the court to settle it. However, the political landscape has changed a great deal ever since. BJP no more has PDP, which was strongly opposed to any dilution of the Act, as an ally and thus has got rid of its previous compulsions of taking a concrete stand on the issue.

The Article 35(A) empowers the J&K legislature to define “permanent residents” of the state, was added to Article 35 through a Presidential Order called The Constitution (Application to Jammu and Kashmir) Order 1954, issued under Article 370. The order superseded an earlier order issued in 1950, which provided the framework for division of powers between J&K and New Delhi under Article 370. The Article 370 which remains the constitutional link between India and Jammu and Kashmir and also guarantees special status to the state stands eroded and diluted through a slew of central amendments right since 1950s. The permanent resident provision, protected by the Article 35 A, today remains the core of this special status that the state enjoys. Striking down the Article 35 A, which was not passed by the parliament or ratified by the state legislature but came as a presidential order, may create a constitutional crisis, impacting several other such presidential orders altering the state’s special status, including the one on GST.

The legal technicality apart, the debate on Article 35 (A) and Article 370 are red rags that will further muddy the waters in Jammu and Kashmir, politically as well as socially with dangers of not just a more lethal backlash in the Valley but also possible polarization of state on dangerously communal lines. The issue thus brings political adversaries, NC and PDP, on the same page. The consequences of attempts to tinker with the special status of the state in anyway have been well grasped by political parties across the spectrum, barring the BJP. There must be a united fight to oppose any kind of misadventure that can have dangerous fallout in Kashmir and would also appear undemocratic in view of the absence of an elected government in the state.