Kashmir Valley Simmers as Hearing on Article 35A in Supreme Court Draws Nearer

Centre's refusal to take a stand and failure” of the J&K government to file a counter-affidavit in the court has unnerved mainstream and separatist camps and has led to fears among people that there is a “grand design” to annul the constitutional provision.

Srinagar: In Valley’s commercial hub of Lal Chowk, every shop has a message pasted on its walls for visitors dropping in from different parts of the region: “Unite to fight for protection of our identity and future”. This call for unity is pasted in bold letters on tourist cabs and auto-rickshaws going in and out of summer capital Srinagar as well.

Volunteers describe it as a move to create awareness among J&K citizens about assault on exclusive rights enjoyed by them under Indian Constitution and the need to protect them.

This method of mobilising people’s opinion is part of recent protests in Kashmir to caution the Centre against tinkering with Article 35A – a provision of the constitution that defines the state’s permanent citizens.

Considered to be bedrock of J&K’s unique position in union of India, the Article has come under attack after an NGO ‘We the Citizen’, backed by right-wing groups, challenged it in Supreme Court in 2014. The petition argues that the Article violates fundamental rights of citizens of India.

The court is set to hear the petition on August 6. But the Centre’s refusal to take any stand on the issue and “failure” of the J&K government, which is presently under governor’s rule, to file a counter-affidavit in the court, has not only unnerved mainstream and separatist camps, but has led to fears among people that there is a “grand design” to annul the constitutional provision.

Amid simmering tensions, mainstream politicians, separatists, trade and civil society formation and all other sections of society, transcending ideological divide, have come together for a common cause. They are readying for a fresh bout of unrest in case the Article is struck down, which would mean J&K would become like any other state in union of India, where all citizens have right to property and jobs.

‘Be ready for mass agitation’

For the past two weeks, the call to defend the Article has gained momentum. Seminars, debates and other forms of discussion are held almost every day. Joining the debate, the separatists on July 30 called for a two-day strike starting on August 5 to register protest against “assault on our identity”.

“We have asked people to prepare for mass agitation and occupying streets if the Article is tinkered with,” Hurriyat leader Mirwaiz Umar Farooq told The Wire. “There is a systematic design being employed to change the demography of the state. We won’t let it happen at any cost.”

Mirwaiz Umar Farooq. Credit: PTI

On the other hand, mainstream politicians predict tough times ahead for themselves if the exclusive rights of J&K citizens are done away with. “They (government of India) first snatched our autonomy and then attacked Article 370, leaving it hollow and now they have set their eyes on our identity,” said a senior National Conference leader.

On Thursday, party’s general secretary Ali Muhammad Sagar led an 11-member delegation to governor N.N. Vohra and urged him to follow the case vigorously in the apex court. “This Article is custodian of interests of all three regions of Jammu, Kashmir and Ladakh. Therefore there can be no compromise in defending it,” Sagar, the former law minister, told Vohra.

The party held Mehbooba Mufti-led People’s Democratic Party (PDP) responsible for the present crisis, saying by allying with the BJP in 2015, it opened doors for the right wing party to attack the state’s distinctiveness.

Last year, when the petition came up for hearing, the BJP-led Central government refused to file counter affidavit to support the state government’s view seeking abrogation of the petition. Instead, attorney general K.K. Venugopal told the court that given the “sensitive” nature of the issue, the Centre wanted a “larger debate” on it.

Having lost the chair after BJP withdrew support to her on June 19, Mehbooba called for a united fight by political parties to protect the Article, on June 28, her party’s foundation day. “This is the need of the hour,” she said.

Article 35A, petition & fears

The constitutional provision empowers J&K legislature to define the state’s permanent residents and was added to through Constitution (Application to Jammu and Kashmir) Order, 1954, issued by President Rajendra Prasad on May 14, 1954, in exercise of powers conferred by clause (1) of Article 370.

The J&K constitution, which was adopted on November 17, 1956, defined a permanent resident as a person who was born or settled in the state before May 14, 1954, or who has been a resident of the state for ten years and has “lawfully acquired” immovable property in the state.

The petitioner has sought abrogation of the Article on the grounds that it was “unconstitutional” and approved by the president without any debate in the parliament. If the provision is done away with, J&K citizens will lose all exclusive privileges including state subject law, right to property, right to employment and right to settlement.

“These privileges will then become available to citizens from across the country,” said former advocate general M.I. Qadri said. But, he added, scrapping of the Article will also raise questions about legality of all constitutional orders applied to the state from 1950 onwards, through which government of India has extended more than 90 entries in union list to J&K and made applicable over 250 articles of Indian Constitution to the state.

According to Qadri, the government was yet to file its detailed response to the petition in the Supreme Court though only a few days are left for the hearing. “This sums up the fears among people,” he said.

A ‘united’ fight

While trade bodies and civil society groups have already chalked out a week long program till August 6, on Thursday, members of Kashmiri Pandit and Sikh communities joined the chorus in support of the Article for the first time.

Led by prominent Kashmiri Pandit and trade union leader Sampat Prakash, the members staged a sit-in protest at Pratap Park outside press colony. “This law is an outcome of long drawn struggle of our ancestors who led an agitation from 1880 onwards to secure rights of state subjects,” Prakash said.

“Like my fellow Kashmiris, it is a matter of life and death for Pandits and Dogras as well. Every citizen of this state will fight for it,” he said, lending support to the two-day strike call by separatists. Other protestors said the case filed in the court was aimed at “altering state’s demography”. “New Delhi shall be responsible for any consequences,” said a member.

This fight for defense of Article 35A has now reached Jammu as well. The region’s High Court Bar Association has summoned a meeting of its executive body to discuss their stand on the matter. Its Kashmir counterpart has already flown a team to New Delhi to prepare for defending the Article.

The Road Ahead

The case is set for hearing at a time when J&K doesn’t have an elected government and is directly ruled by the Centre. This situation has led to more fears in Kashmir and prompted calls from deferring of the hearing, from mainstream as well as business and corporate bodies.

“The Centre has already made its stand clear last year. Who will now defend the case in absence of a government in J&K? It should be deferred till elected government is in place,” said Shakeel Qalandar, former president of Federation of Chambers and Industries Kashmir.

J&K Governor N.N. Vohra. Credit: PTI

A senior official in state law department said similar petitions challenging the constitutional provisions have already been dismissed by the Supreme Court in 1956, 1961 and 1970. “On all those occasions, the case was heard by larger constitutional benches, which implies that the three-judge bench which is hearing the petition now can only take a decision to transfer it to a larger constitutional bench for any decision,” said the official.

But he hurried to add that battle for the Article has become more political than legal. “That is disturbing everybody,” the official said.

That perhaps explains why the governor, having sensed the fallout of a possible abrogation of the Article, has written to New Delhi to defer the hearing until an elected government was in place in J&K.