Sangh Outfit Challenge to Kashmir’s Special Status Could Change State’s Demography

The Valley smells yet another conspiracy as an RSS-backed NGO approaches the Supreme Court to scrap J&K’s special status

Protesters throw stones on police during clashes which erupted  after the funeral of 24-year-old truck driver Zahid Rasool, who was injured in the patrol-bomb attack on a truck in Udhampur, at Batango in Anantnag district of South Kashmir. Credit: PTI

Protesters throw stones on police during clashes which erupted after the funeral of 24-year-old truck driver Zahid Rasool, who was injured in the patrol-bomb attack on a truck in Udhampur, at Batango in Anantnag district of South Kashmir. Credit: PTI

Srinagar: At a seminar held in Srinagar earlier this month, a civil society organisation, Kashmir Centre for Social and Development Studies (KCSDS), urged people from different professions to join the fight for protection of Article 35A that guarantees special privileges to permanent residents of Jammu and Kashmir. The call from KCSDS came in the backdrop of a writ petition filed by an RSS-backed NGO, JK Study Centre, in the Supreme Court, seeking scrapping of the Article.

“If the constitutional provision is done away with, J&K will lose the special privileges – the state subject law, right to property, right to employment, and right to settlement,” cautioned noted lawyer Zaffar Shah who attended the program. “Ours will thus become like any other state where people from any part of India will have the right to own property.”

Over the past fortnight, the atmosphere in the Valley – already tense because of the death a Kashmiri man attacked in Jammu over suspicions he was transporting cows for slaughter – has become charged over this issue, with the lawyers’ community, trade bodies and civil society gearing up to mobilise public opinion on the touchy subject, ahead of the hearing of the petition by the Supreme Court on November 3. The latest entrants to this debate have been the separatists, who have threatened to start a mass agitation if J&K’s special status is meddled with.

Challenging the special status

Article 35A was extended to J&K through the ‘Constitution (Application to Jammu and Kashmir) Order 1950’ issued by President Rajendra Prasad on May 14, 1954. It was specifically devised to grant protection to state subject laws that had already been defined under the Maharaja’s rule and notified in 1927 and 1932.

The Article defines the special privileges that can be enjoyed by permanent residents in matters related to employment, acquisition of immovable property, settlements and scholarships. Passed as it was without any discussion in Parliament, it has been considered controversial by some legal experts, who are of the view that it violates the United Nations Universal Declaration of Human Rights of 1948.

The state’s Former Advocate General M.I. Qadri agrees that Article 14 of the Indian Constitution guarantees the right to equality for all citizens of India in employment, owning property and so on, anywhere in the country. But, he points to the fact that state subject and related laws in Kashmir have been protected by Presidential order on account of the “temporary accession” of J&K with the Union of India.

It is this protection enjoyed by the state that has been challenged by the JK Study Centre, arguing that Article 35A was a constitutional amendment signed by the President bypassing parliament. “The permanent residents (of J&K) were given ‘discriminatory powers’. Restrictions were placed on non-state subjects in terms of public employment, acquisition of property…,” the petition reads.

According to Aniruddha Rajput, counsel for the petitioner, the powers given to J&K Assembly under the Article 35A to define permanent residents and to give them special rights were “deliberately kept narrow to exclude several communities” and “this distinction was arbitrary and archaic.”

Past attempts dismissed

This is not for the first time that Article 35A has been challenged in the Supreme Court.  Similar petitions have been dismissed by the Court thrice, in 1956, 1961 and 1970, while upholding the powers of the President to pass constitutional orders. The latest petition has however quoted a 1971 constitutional amendment, considered to be of dubious legality itself, but, which according to the JK Study Centre, renders Article 35A invalid.

Legal experts who are opposed to the move are nevertheless apprehensive that if a larger bench of the Supreme Court decides to hear the petition, it might automatically leave earlier orders passed by its own smaller benches null and void.

In case the Supreme Court does rule in favour of scrapping the Article, the political and legal consequences would be immense.  “If Article 35A goes, then all Presidential orders from 1950 onward will become invalid. But more importantly it will be an assault on the Muslim identity of J&K,” said Zaffar Shah.

‘A conspiracy is going on’

Not surprisingly then, the writ petition is widely seen in the Valley as an attempt by right wing groups to make a dent in JK’s special position and force demographic changes in Kashmir in the longer run. All eyes are now on the government, run by the politically and ideologically divided allies, the Peoples Democratic Party and Bharatiya Janata Party, which will be forced to take a stand in court in a matter of far reaching consequence.

While referring to the petition against Article 35A, the Hurriyat Conference led by Syed Ali Shah Geelani accused the Centre of “consistently attempting to harm” J&K’s disputed nature. “If any such attempt is made, the people will come on the roads and start an agitation,” Geelani warned.

The Kashmir Economic Alliance, an amalgam of trade and business associations of the Valley, and Kashmir University students too have lent support to the legal battle against dilution of the Article 35A. The banned Kashmir University Students Union is planning to involve students from colleges and other educational institutions to create awareness about the importance of the provision.

The Kashmir High Court Bar Association has decided to approach the Supreme Court to challenge the petition. Its president, Mian Abdul Qayoom, said there was a “conspiracy going on” to change the demography of Muslim majority J&K by opening permanent entry points to Kashmir. The Bar has also called for a “peoples’ movement” to defend Article 35A.