S Kiran
OVER the weekend (August 5, 2018), the people of Indian Held Kashmir (IHK) observed complete strike against hearing of petitions against Article 35-A, by a Bench of Supreme Court of India. During this strike in Kashmir, there was total silence and freeing of all activities, indicating that, what to talk of its dilution, Kashmiris would never accept even any hearing against this Article by Indian Supreme Court. Following the protests and shutdown in Kashmir, there was a witnessing ‘quiet Sunday, the streets continue to be deserted, markets closed, buses and auto rickshaws remain off the road.’ The protests and strike was not on the call of APHC, but it was a unanimous decision of all Kashmiris, people from all religions, all political parties, factions and all genders. 35-A was incorporated into the Indian Constitution through a Presidential Order in 1954. This article accorded special ‘rights and privileges’ to the citizens of Jammu and Kashmir baring the non-Kashmiris from acquiring any immovable property in IHK. Indeed, it was a reinforcing clause to the Article 370 of Indian Constitution. It was indeed a safeguard for the Kashmiris rights and their properties.
A three-member Bench of Indian Supreme Court, apparently hearing the petitions against the article are mandated to decide two things; ‘whether issue of Article 35 A has to be referred to Constitutional Bench and whether Article 35 A goes against basic structure of Indian Constitution. But, the reality is that, through a gradual process, Indian Government is all set to dilute this Article, through Supreme Court, thus, freeing the political leadership from repercussion, Kashmiris are likely to unleash. Though, the hearing by Indian Supreme Court have been adjourned, owing to absence of a judge, the next hearing is scheduled to be held on August 27, 2018. This mean, it was deliberate adjourning to gain time and release pressure and reduce the anger, Kashmiris are showing in the form of strikes and through their speeches and writings. Also, this was aimed to assess the Kashmiri response and take preventative procedures through a go slow policy to implement the Indian agenda.
Tracing the history, it is worth mentioning that, after its failure to attain a majority (44 plus seats) in IHK Legislative Assembly in 2014 election, BJP manipulated an alliance with People’s Democratic Party (PDP) to form the state government. Practically, it was a BJP ruling the IOK with a rubber stamp Chief Minister from PDP. The agenda of BJP Government in New Delhi has been to do away with the Article 370 of Indian Constitution, which gives special status to IOK. However, owing to non-availability of requisite numbers of MLAs to support a constitutional amendment to repeal Article 370, in August 2017, BJP decided to initiate a debate for the dilution of another constitutional provision, Article 35A of the Indian constitution. This article supplements Article 370 of the Indian Constitution. It is worth mentioning that, Article 35A allows the Jammu and Kashmir legislature ‘to define the list of ‘permanent residents’ of the state, who are eligible to vote, work for the state government and own land.’3
After having deliberations on this article, the BJP led Indian Government has adopted an indirect strategy through a New Delhi based NGO to approach Indian Supreme Court for the dilution of this article. Prior to its dilution, New Delhi has initiated a debate among the masses, academia, think-tanks and official circle for the dilution or otherwise of Article 35 A. On its part, Indian Supreme Court has constituted a three-judge Bench, to complete a hearing over the matter in six weeks. This Bench of Indian SC was constituted on the request of Indian Attorney General, which clearly speaks of the motives of Indian Government. It is to be noted that, repealing Article 370 and doing away with the special status of IHK was an election manifesto of Modi’s BJP and is being implemented through a gradual process. Owing to the public pressure, the former Chief Minister of IOK, Mehbooba Mufti refused to become a party in the dilution of Article 35 A, which led to withdrawal of BJP support for PDP, thus, collapsing the unholy alliance in June 2018. There was imposition of Governor Rule in IHK on June 19, 2018, suspending the basic human rights. The Governor Rule with suspended basic human rights provides India an opportunity to start Hearing against Article 35A. There has been a serious reaction from PDP and National Conference, the political parties of IHK over this Indian manipulation.
Omar Abdullah, the former Chief Minister and leader of National Conference said, “If there is debate on (the legality) of the Article, you will have to debate the accession itself,” because the state’s accession to the Indian Union and its special status are “two sides of the same coin.” Indeed, “Like Article 370, Article 35A was negotiated between the princely state of J&K and the government of India and it is the bedrock of accession.” In fact, Article 370 provides the only linkage between India and IHK. If Article 370 is repealed, IHK will be constitutionally free of Indian yoke. New Delhi, particularly the ruling BJP and its militant wing, RSS feel that, special status of IHK is, “not a sacred cow that cannot be touched”. In their opinion, ‘Both Articles 35A and 370 (granting special status to Jammu and Kashmir) were meant to be temporary.’ This speaks of an Indian mindset, which can be linked and interpreted from the wording of first Indian Law Minister, Dr. Ambedkar, the founder of Indian constitution, who unequivocally opposed the incorporation of Article 370 in Indian Constitution. On their part, Kashmiris are not ready to compromise on their special status; thus would like to protect Article 370 and 35A, till they get their right of self-determination. UN Security Council must realize its responsibilities as enshrined in its Charter and its resolutions on Kashmir and stop India from making any change about the status of IHK.
