COMMENTARY
government in J&K with the J&K Peoples
Failing Kashmiris on
Their Article of Faith
Athar Parvaiz
The people of Kashmir are
convinced that the public interest
litigation in the Supreme Court
appealing for the abrogation of
Article 35A is simply a judicial
route through which the
Bharatiya Janata Party-led
government at the centre is
seeking to repeal Article 370.
Athar Parvaiz (atharparvaiz.ami@gmail.com)
is a senior Kashmiri journalist. He tweets at
@atharparvaiz.
12
B
efore coming to the debate on
Article 35A of the Constitution
which protects the special status
of Jammu and Kashmir (J&K) under Arti-
cle 370, it is pertinent to mention a few
things about the Kashmir policy of the
current Bharatiya Janata Party (BJP)-led
National Democratic Alliance (NDA) esta-
blishment in New Delhi and the percep-
tion in Kashmir about this regime.
Union Minister of Home Affairs,
Rajnath Singh, has repeatedly said in
recent months that the central government
will soon come up with a permanent
solution for the Kashmir issue. Though he
has never elaborated on what he means
by this, Kashmiris suspect that he is
actually referring to his party, the BJPs,
core political ideology of doing away
with Article 370 so that Kashmir is fully
integrated with Indiaand that is the
BJPs solution for the Kashmir issue.
Former Prime Minister Atal Bihari
Vajpayee had generated hopes among
several sections of people in Kashmir by
coining the slogan of Insaniyat, Jamhoo-
riyat and Kashmiriyat for resolving the
Kashmir issue. It was this legacy that
people remembered when the BJP came
to power in 2014. However, the manner in
which ruling establishment in New Delhi
has dealt with Kashmir ever since May
2014 has not only dashed those hopes but
further deepened the doubts in Kashmir.
In contrast to the expectations that the
BJPbuoyed by the partys huge election
victory in 2014 and growing confidence of
the people in its handling of issuesmight
take some bold political decisions for as-
suaging the anxieties in Kashmir, the party
did practically nothing even after publicly
claiming that it would move forward on
Kashmir on the path shown by Vajpayee.
However, there was no movement for-
ward on Vajpayees Kashmir policy which
had helped it in forming the coalition
SEPTEMBER 30, 2017
Democratic Party (JKPDP). Instead, the
BJP conveniently disregarded its prom-
ise with its alliance partner in the Agen-
da of Alliance (AoA) wherein it had com-
mitted itself to holding political dialogue
with Pakistan and Kashmiri separatists
over the Kashmir issue.
After opposing the Kashmiri separa-
tists meeting with the Pakistan High
Commissioner in New Delhi, following the
formation of the coalition with the JKPDP
in March 2015 after dilly-dallying, the BJP
got involved in more controversies. These
included setting up of separate sainik
colonies for former soldiers in Kashmir,
separate clusters for Kashmiri Pandits, the
beef ban in the state, Article 370 and the
issue of undertaking of a new pilgrimage
yatra by a New Delhi-based Hindu reli-
gious organisation to a mountain area in
Kashmirs Budgam district.
There is no doubt in the minds of people
in Kashmir that the BJP searches for
opportunities to serve its penchant for
hitting the raw nerve in the state. The
othering of Kashmiris and characteris-
ing them as anti-national seem to be per-
fectly in tune with the partys politics and
its efforts to engineer electoral victories
across India. Recent election victories in
states such as Uttar Pradeshin the back-
drop of the unrelenting use of force in
Kashmir during the summer of 2016
seem to be a clear example of endorse-
ment of the BJPs tough talk over Kashmir.
Article 35A
This brings us to the debate over a public
interest litigation (PIL) seeking the repeal
of Article 35A. The intelligentsia and
informed citizens in Kashmir believe that
it is purely the BJPs machination of pur-
suing its Kashmir-centric agenda. This is
being done by adopting the judicial route,
considering the party has committed itself
in the AoA with JKPDP, that it would not
touch the issue of Article 370. However, it
is well known that it has strongly rallied
against Article 370 during the election
campaign after making it a part of its
election manifesto.
Article 35A, which was inserted in the
Constitution through a presidential order
vol lIi no 39 EPW Economic & Political Weekly

in 1954, gives the legislature of J&K the
right to define permanent residents that
had already been defined under Maharaja
Hari Singhs rule and were notified in 1927
and 1932. It bars any citizen of India, ex-
cept the permanent residents of J&K from
owning property or settling in J&K. It also
disallows any person outside of J&K from
being employed there or taking scholar-
ships and aid from the state government.
The little-known non-governmental
organisation (NGO), We the Citizens, which
has filed the PIL in the Supreme Court
seeking abrogation of Article 35A, is
linked with the Rashtriya Swayamsevak
Sangh (RSS) which, in turn, is closely
linked with the BJP and has consistently
challenged the special status of J&K under
Article 370 (India Today 2017).
In the PIL, the NGO has contended that
since Article 35A has not been included in
the Constitution through an amendment,
but by dint of a presidential order (not
presented in Parliament), it should be re-
pealed as amendments to the Constitution
can only be made through a parliamentary
process by making use of Article 368.
The NGO has further argued that
restricting citizens from other states from
getting employment or buying property
in J&K is a violation of their fundamental
rights under Articles 14, 19 and 21 of the
Constitution.
Another petition has been filed by
Charu Wali Khanna, a Kashmiri woman
who married outside J&K. Seeking the re-
peal of Article 35A, she has argued that
her children are denied the permanent
resident certificate because of this article.
However, in a landmark judgment in
October 2002, the Jammu and Kashmir
High Court had held that women married
to non-permanent residents will not lose
their rights. However, their children do not
have succession rights (Times of India 2017).
The Supreme Court has issued notices to
both the J&K government and the central
government for filing their responses.
While the former has done so and sought
dismissal of the PIL against Article 35A,
the central government has not filed any
written reply in support of the article. This
has prompted opposition parties such as
the J&K National Conference (JKNC) and
separatist leaders in J&K to conclude that
the BJP-led government is in fact happy
Economic & Political Weekly EPW SEPTEMBER 30, 2017
that the issue of Article 35A is being
resolved judicially.
The case was scheduled to be heard
on 29 August by a three-member bench,
but the hearing was deferred till after
Diwali at the request of the J&K govern-
ment. It means that the case can now be
heard any time after 20 October, even as
the suspense continues over what posi-
tion the central government takes and
whether it files a written response to the
Court seeking the dismissal of the PIL.
Home Minister Singh, during a four-day
visit to the Valley, called the debate over
Article 35A a non-issue and assured the
J&K government that the central govern-
ment will never take any step which would
hurt the sentiments of people of Jammu
and Kashmir (Hindustan Times 2017).
The JKNC and other regional political
parties would rather believe in action.
The Union government must now file a
counter affidavit in the Supreme Court
to defend 35-A. That is the way to carry
this assurance forward, former Chief
Minister and JKNCs Working President,
Omar Abdullah, tweeted in reaction to
Singhs statement in Srinagar.
What if Article 35A Goes?
All the privileges under Article 35A such
as owning property, settling in J&K and
taking employment in the state, enjoyed
by the permanent residents of J&K only,
will no longer remain exclusive to them,
but will be availed by any person in any
other state who is a citizen of India.
All the Kashmir-centric political par-
ties in the state have termed it a conspir-
acy to end the special status enjoyed by
J&K under Article 370.
However, none of the political parties
seem to know how to deal with this situ-
ation. If the BJP-led central government
decides not to file a written response, the
verdict can most likely go in favour of the
appellant as only one respondent, the
J&K government, has so far filed a written
response seeking dismissal of the PIL.
The separatist leaders of Kashmir Valley
are seeing it as a ploy employed by New
Delhi to change the demography of the
Muslim-majority J&K which, they say, is
directly linked with our right to self-
determination. They have argued that
it cannot be done in a region which is
vol lIi no 39
COMMENTARY
disputed. A strike call issued by separatists
against the PIL evoked massive response
from people in Kashmir.
Abrogation of Article 35A will have
repercussions for the Union of India as
well. If Article 35A is repealed it would
mean invalidation of all the 41 subsequent
presidential orders related to the 1954
presidential order. These two quotes from
an article in a news magazine explain
this in detail.
This would also mean that the Governor and
the Chief Minister would be addressed as the
Sadr-e-Riyasat (President) and Wazir-e-Azam
(Prime Minister) in Jammu and Kashmir.
The extent of authority of the Supreme Court
and the Election Commission of India would
also be curtailed. Using Article 35A, the gov-
ernment of India has made 94 of 97 entries in
the Union List applicable in Jammu and Kash-
mir. A total of 260 of 395 Articles of Indian
Constitution are applicable in Jammu and
Kashmir via Article 35A. (India Today 2017).
The control of the Centre on Jammu and Kash-
mir would legally be limited to only Defence,
External Affairs and Communication. The
repeal of Article 35A would mean a reformula-
tion of legal arrangements with Jammu and
Kashmir with the government of India.
The RSS is of the view that with the Narendra
Modi government at the Centre, a favourable
arrangement can be arrived at paving way
for permanent solution to the Kashmir prob-
lem. (India Today 2017).
Scepticism in Kashmir
There are some important reasons why
people in Kashmir are sceptical about the
continuation of Article 35A. The main one
is the deeply entrenched suspicion among
people that the BJP is hell-bent on inte-
grating Kashmir with India completely
and does not want to defend this article,
the soul of Article 370 which gives J&K its
special status under the Constitution.
Recalling the Afzal Gurus death sentence
and his subsequent hanging on 9 February
2013 (a somewhat fresh development in
Kashmirs political history), which evoked
public anger in Kashmir and deepened the
mistrust of Kashmiris towards Indian jus-
tice system, people also say that because
of the political context to the PIL about Ar-
ticle 35A, the Supreme Court might con-
sider the views of the executive while de-
livering the verdict. The hanging of Guru
was widely described as miscarriage of
justice in Kashmir just because Gurus
hanging fitted in the political narrative
13
COMMENTARY
over national security. From the current
Chief Minister of J&K Mehbooba Mufti to
the then Chief Minister Omar Abdullah, all
political parties, including both pro-free-
dom and pro-Indian political parties and
civil society groups had criticised Gurus
hanging. The Supreme Court judgment in
the case talks about strong circumstan-
tial evidence and about satisfying the
collective conscience of society. You dont
hang people because society demands it.
You hang people because the law de-
mands it, Omar Abdullah had said fol-
lowing Gurus hanging while another
former chief minister, Mufti Mohammad
Sayeed, had said that Mahatma Gandhis
India had been turned into a banana
republic (Bukhari 2013).
It is a common refrain in Kashmir that
every institution of India looks at Kash-
mir through tinted glasses and that the
crucial hearing about Article 35A can
well be yet another example of partiality
given the politics involved in it, especially
the political views of the executive.
Another reason is peoples lack of trust
in the mainstream political parties in the
14
state who, they feel, succumb to pressure
from New Delhi as they prefer holding
on to power or toeing New Delhis line
rather than standing up for their political
ideologies or Kashmiri nationalism.
For example, the JKNC has never
launched a political agitation after its
autonomy report, passed in the state
assembly in 2000, was rejected by the
then NDA government in New Delhi.
On the other hand, the JKPDP has qui-
etly allowed application of central acts
such as the Collection of Statistics Act of
2008, Securitisation and Reconstruction
of Financial Assets and Enforcement of
Security Interest Act of 2002 and Goods
and Services Act in J&K despite severe
criticism and concerns expressed by civil
society groups. The JKNC could not ex-
press too much anger given its guilt
about its past record of condoning such
manoeuvres of New Delhi.
As regards the PIL against Article 35A,
only the separatists have so far shown that
any attempt at abrogation could lead to
massive protests in the Valley. They issued
a protest calendar which followed an
SEPTEMBER 30, 2017
unprecedented strike observed by people
across Kashmir on their call against the
PIL. Later, they postponed the week-long
protest calendar after the Supreme Court
decided to defer the hearing of the case.
But, they have threatened to repeat the
protests if the Supreme Court holds hear-
ings on the petition.
References
Bukhari, Shujaat (2013): Back to the Brink, Frontline,
8 March, http://www.frontline.in/cover-story/
back-to-the-brink/article4431004.ece.
DNA (2015): Agenda for Alliance: Full Text of the
Agreement between PDP and BJP, 1 March,
http://www.dnaindia.com/india/report-agen-
da-for-alliance-full-text-of-the-agreement-be-
tween-pdp-and-bjp-2065446.
Hindu (2017): What Is Article 35A?, 26 August,
http://www.thehindu.com/news/national/
what-is-article-35a/article19567213.ece.
Hindustan Times (2017): Wont Go against Senti-
ments of Kashmiris on Article 35A: Rajnath
Singh, 11 September, http://www.hindustan-
times.com/india-news/won-t-go-against-senti-
ments-of-kashmiris-on-article-35a-rajnath-sin-
gh/story-PMoqIDpAdmQy3pKBxAvi3N.html.
India Today (2017): How Two PILs Are Helping
RSS Agenda of Uniform Civil Code, Article 370,
24 July, http://indiatoday.intoday.in/story/rss-
uniform-civil-code-article-370-jammu-kashmir-
narendra-modi/1/1009333.html.
Times of India (2017): Article 35A and Its Signifi-
cance, 8 August, http://timesofindia.india-
times.com/india/article-35a-and-its-signifi-
cance/articleshow/59968712.cms.
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