Protecting Article 35-A

Amidst fiery campaigning in the ongoing Lok Sabha elections, the BJP has been emphasizing on its pledge to abrogate Article 370 and 35-A to ensure the total merger of Jammu & Kashmir with India. In addition to propagating a visceral hatred for Pakistan and Kashmiris, BJP’s campaign has seen an ugly display of contempt and hatred against the entire leadership of the valley, separatists as well as mainstream alike, calling them anti-national, traitors and what not. More than frequent threats of continuing with the iron-hand approach in Kashmir do not seem to be a mere rhetoric. If BJP does come to power in New Delhi, one can foresee hard times ahead for the Kashmir valley.

Article 35-A of the Indian Constitution is an article that allows the Jammu and Kashmir state’s legislature to define “permanent resident” of the state. It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India on 14 May 1954, exercising the powers conferred by the clause (1) of the Article 370 of the Indian Constitution, and with the concurrence of the Government of the State of Jammu and Kashmir.

Article 370 of the Indian constitution is an article that gives autonomous status to the state of Jammu and Kashmir. The article is drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether. After the J&K Constituent Assembly (later) created the state’s constitution and dissolved itself without recommending the abrogation of Article 370, the Article was deemed to have become a permanent feature of the Indian Constitution. Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. The Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the Union and Jammu and Kashmir State within the ambit of this article, but replaced the nomenclature of Prime Minister with Chief Minister.

Although, today the autonomy enjoyed by the State is a shadow of its former self, thanks to Abdullahs, Azads, Muftis et al, there is virtually no institution of India that does not include J&K within its scope and jurisdiction. The only substantial differences from many other States relate to permanent residents and their rights, the threat of abrogating it in toto seems to be real.

Over the years the Bhartiya Janata Party has been stressing to abrogate the said articles to pave way for what they call as total integration of the state with India. In 2014, as part of BJP manifesto for the 2014 general election, the party pledged to integrate the state of Jammu and Kashmir into the Union of India. Thus repealing of Article 370 of the Constitution has been a poll promise of the BJP. It had earlier claimed that it could not repeal the Article 370 during Vajpayee government due to lack of majority.

After joining hands with PDP to share power in Jammu and Kashmir, BJP agreed to put the plan on hold as was agreed in the agenda of alliance. However the subject remained alive as a number of litigations by various subsidiaries of the saffron party as well as individuals against Article 370 and 35-A were put across the Supreme Court. It was left to state government to defend the move, but the matter kept on lingering without any serious fallout during last five years of BJP rule in New Delhi.

Notwithstanding numerous legal and constitutional hurdles and complications, an amendment in the constitution can be initiated by the introduction of a Bill in either House of Parliament as per the procedure laid out by Article 368 for amendment of the Constitution. The Bill must then be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.

Today’s India is a different India. Sanyasis and sadhavis have turned hate mongers and terror-accused are being given a ticket. Communalism, polarisation, hate campaigns against Kashmir, Kashmiris and Muslims have become symbols of pseudo-nationalism. India has become a place where lynching of hapless Muslims and uploading the videos of the terror is a favourite pastime of right-wing goons who then get felicitated for such acts by MLAs and MPs. In today’s India the hate and communal polarization have become punch lines of political narrative for the ruling party. To top it all, vital institutions like those related to defence, security, economics, elections and academics have practically been saffronized, and are being used for pursuing political goals and settling scores. In such an environment it is not out of place that the BJP, if it comes to power, pushes ahead its designs against the special status of the state, more so when the resistance is only to come from the valley and may be from Muslim belts of Kargil, Chenab and Pirpanchal, not from major parts of Jammu and Ladakh.

The election manifesto of BJP vis-a-viz Kashmir has provided the valley mainstream parties like National Conference and PDP a much needed subject for election campaigning. While as the BJP is asking votes from its electorate for abrogation of the 370, NC and PDP are seeking mandate from theirs for protecting the same.

Thus the post election scenario is likely to pose lot of challenges to the valley mainstream. NC being the forerunner on the political horizon is making huge promises to fight and foil designs of BJP. But the big question remains as to how can they do it? Do they have an action plan? Does the party really believe it can stop what BJP is up to?

Unfortunately past record of the party does not match with what the party is claiming today. During the previous ULB elections, Farooq Abdullah declared that NC will not participate in any elections unless New Delhi assures security of the Article 370. He dumped his pledge in a matter of few months when the Lok Sabha elections were announced. Does he deserve to be believed on his utterances now?

Who would forget that during year 1995-96, when nobody was available to Government of India to contest elections in J & K, P.V. Narsimha Rao, the then Prime Minister of India was compelled to announce that India was willing to grant anything less than “azadi” to Kashmir and declared “Sky is the limit”, NC fought the elections, settled with power with two-third majority in 2% polling and did not feel like bargaining anything for the state, except to pass the autonomy resolution in Assembly, only to be contemptuously rejected by the New Delhi. It looked like a fixed match orchestrated to befool the people. There were no protests or resignations and all lived happily thereafter.

Omar Abdullah as junior foreign minister in the government (union) did his best to espouse the cause of India during his foreign visits and attributed the happenings in Kashmir to be sponsored from across the border. NC did not at that time say that Kashmir is political issue and needed to be solved as per the wishes of people, which it is saying now when out of power.

With PDP as well as Congress sharing a matchless character of treachery and betrayal, it is foolish to pin any hopes on any of them anymore. One can only wish that BJP does not muster enough strength in the Lok Sabha to kill Article 370 and 35-A. Otherwise it will be left to people only to fight the misadventure.