Article 35(A): There is Little that Mehbooba Mufti Can Do Now
NEW DELHI: Opposition leaders are a little perplexed as to why Jammu and Kashmir Chief Minister Mehbooba Mufti has suddenly woken up to the Public Interest Litigations filed in the courts by RSS affiliates, seeking to do away with Article 35(A) and thereby achieve the RSS dream of changing the status of the border state, starting with the demography. And more so, when after meeting some of the Opposition leaders including Farooq Abdullah, she went into a meeting with Prime Minister Narendra Modi and emerged quite “satisfied” with his assurances.
The RSS has not wasted any time since Prime Minister Narendra Modi came to power in taking the first step towards the abrogation of Article 370. This, under the considered view of New Delhi and Nagpur, can be hastened by challenging Article 35(A) giving special rights to ‘permanent residents’ of Jammu and Kashmir, amongst which is a ban on outsiders from buying land in the state. This has been the declared---even if at times muted---agenda of both the RSS and the BJP with every single ideologue clear that Muslim majority Kashmir has to be willy nilly brought into the amalgam of India at some point or the other without any privileges.
The sensitivities and the considerations that guided the accession of Kashmir to India, protected by Article 370 and the 1954 introduced Article 35 (A) have always been rejected and ridiculed by the RSS. It has stated its opposition clearly, and even now when PM Modi came to power, the assertions from New Delhi and in particular Jammu have been clearly against Article 370.
It is thus, interesting to see the ‘Mufti rush’, as an Opposition MP so well put it, fired clearly by the six week deadline of the Supreme Court to the three member bench appointed to look into the PIL before it. The PIL has been filed by a little known NGO We The Citizens, perceived here as a front organisation of the RSS, that wants Article 35(A) to be declared unconstitutional as it was a “temporary provision.” And furthermore, according to this petition, the Jammu and Kashmir government has been discriminating against Indians not from the state by not allowing them to vote in the local elections, get a government job or buy property.
This PIL was admitted three years ago, and is not new. The admission itself had struck alarm bells in knowledgeable quarters, as it was clearly not an innocent move. This was apparent when the JK government appeared before the apex court on the same PIL to claim that the 1954 Presidential Order granting special rights to permanent residents of the state has been recognised, accepted and acted upon over the decades. And cannot be challneged, and as eminent lawyer Fali Nariman stated, “the instant petition seeks to upset settled law, accepted and complied with by all”for 60 odd years. And that the provisions of the Article have been “continuously acted upon and treated as valid, the same ought not to be permitted to be challenged.”
To cut a long legal story short, the Supreme Court has now referred the petition challenging the constitutional validity of Article 35(A) to a 3 Judge Bench. It has a deadline of six weeks to give a ruling on the contentious issue. The government has been asked to respond within three weeks. The BJP has taken a position, as reflected in statements from its Jammu unit, that it is for the courts to decide, and all will have to accept the verdict even if it goes against Article 35(A). This is probably the apprehension, growing larger by the day, that sent Mufti rushing to Delhi but she had to leave without any real assurances. As the government can now say with justification that the issue is with the apex court, and there is little it can do to influence the verdict one way or the other.
Of course the arguments submitted by the government, as and when, will have a bearing on the case. But there is no indication that the BJP’s Attorney General will take a position favouring the state, and the Jammu and Kashmir High court in maintaining that Article 35A is now of permanent nature, and not temporary. As sources said, he cannot as the position of the BJP and the RSS has always been against Article 35A and of course Article 370.
All of Kashmir came together in a complete shutdown against this move, in what was an ironical protest in that the border state actually supported the Constitution of India in the process. However, this is too little too late as the legal flow has already acquired a momentum of its own. And an ally of the government in the state will definitely endorse a verdict striking down the Article, leaving Mufti alone to lodge a feeble protest. She and the PDP have so factored themselves out of the reckoning that even what in political terms is referred to as ‘nuisance value’ now seriously dented. In fact, the National Conference that is currently drawing the BJP’s ire with Farooq Abdullah in some form seems to have acquired a few more teeth than the PDP that is now searching for dentures.
There have been some reports that Kashmir will burn if the verdict takes away Article 35A, The question that does not have a clear answer here is: will it burn any more than it is burning already. The Valley is in flames. The Army is cracking down with a ruthlessness not seen for a long while in Kashmir, local militants are being killed by the day, as are of course soldiers. Protests, stones, pellet guns, arrests, have all become part of the landscape with businesses closing down, tourism at a halt, and the Kashmiris suffering economically, physically and even more so mentally.
In this writers assessment, however, the move will light up the skies with probably un-extinguishable fires and it remains to be seen whether the BJP will be willing to go the full hog with this risk staring it in the face. Even the silent world might find it difficult to keep mum when confronted with a situation where state violence reaches new levels to quell peoples violence.
The BJP, according to Opposition assessment here, is willing to push hard now and open the floodgates for a demographic change in the Valley. Major protests in the rest of India could halt the process more effectively than the current unrest in Kashmir. However, the Opposition led by the confused and completely apathetic Congress seems to have little to contributed at this stage. In fact the Congress policy on Kashmir too was bereft of any understanding of the sensitivities that had guided their own first government at the time. Prime Minister Manmohan Singh who was recently appointed by Congress President Sonia Gandhi to look at the Kashmir issue has little to say after the first few rounds of consultations. And as a regional leader who had been in touch with them said, “their initiative is as dead as the Congress currrently.” The regional parties have never had Kashmir on their agenda, for them to bother unduly about it now.
As for Mehbooba Mufti, there is little she can do now except pretend concern. She remains an ally of the BJP, the BJP knows that there is no place now for her to go, and as for her recent remark that if Article 35A is declared unconstitutional there will be no one to hold the national flag in Kashmir the response here is a clear cut: Who cares, we will hold it.” As with the demographic change, there will also be a political change where regional parties will cease to matter. If she was truly concerned she should have not allied with the BJP as many in her own party had advised her to.