Article 35A Debate: How BJP’s Stand Puts PDP in the Dock in J&K

Forthcoming hearing on Article 35A and Article 370 emerges as the latest flash-point between BJP and PDP in J&K.

(Photo: The Quint)

Come September and the Supreme Court is likely to hear the all-important petition by an NGO, questioning the validity of Article 35A and Article 370 of the Indian Constitution, which grants exclusive rights over land, property, government jobs, etc to “permanent residents” of Jammu and Kashmir.

A political hot potato in Kashmir Valley, the issue has put the ruling PDP-BJP coalition on a collision course with the party leaders speaking in contradictory tones.

Questioning the move, the Opposition, National Conference, is warning of a 2008 ‘Amarnath Land Row’-like agitation while the separatists have called for ‘Kashmir Bandh’ on Saturday.

The issue is also a sentimental one. There are some people in Kashmir who believe that the issue of Article 35A is a continuation of chipping away of the state’s constitutional position over the years.

Also Read: We Mustn’t Tamper With Article 370 or Negotiate With Separatists

North Pole-South Pole Alliance

The Peoples Democratic Party and the BJP came to power in 2014 in J&K, in what was termed by some observers as an “unholy alliance”. The two parties have contradictory vision on issues confronting the state. While the BJP, powered by the Sangh ideology, wants “complete merger” of J&K with the rest of the country, the PDP has all along defended the alliance for "development and peace".

The BJP's manifesto for 2014 Lok Sabha elections called for abrogation of Article 370, although the issue was conveniently missing from its ‘vision document’ in the subsequent assembly polls in J&K. The party leaders in the state, however, are vociferously arguing to scrap the special status.

Also Read: Promises Made and Broken: Modi Forced to put Article 370 on the Backburner

In 2014, the ‘Agenda of the Alliance’, drafted by PDP's Dr Haseeb Drabu and BJP's Ram Madhav as a governance framework for the coalition government before the alliance formation took place, promises a status quo on the special constitutional position of J&K.

We have stood by the agenda and we will continue to do so. But there are reasonable voices calling for a debate on the issue. We have to see whether J&K’s special constitutional position has done more harm to the state than accruing any benefits.

Sat Sharma, BJP’s J&K President

Also Read: PDP-BJP Govt Allowing Erosion of Article 370: Omar Abdullah

Past ‘Betrayals’, Uncertain Future

The Article 370, which governs the relationship between J&K and the Union of India, was negotiated by Kashmir's towering politician, Sheikh Mohammad Abdullah, in 1949, two years after the Dogra ruler, Maharaja Hari Singh, signed the “Instrument of Accession” on three subjects: Foreign affairs, defence, and communications.

In 1952, following the Delhi Agreement, a series of constitutional provisions of the Indian Constitution were extended to J&K through the Presidential Order of 1954.

In the following years, though omission and commissions, the core of J&K's autonomy, vesting powers other than the three subjects with the state legislature, got eroded, reducing the special status to a mere shadow of its former self.

Also Read: Here’s Why India Has the Right to Call Kashmir Her Own

While ‘complete integration’ of J&K with the rest of the country has been the Sangh's core ideology, the issue took a dramatic turn in 2014, when a little known NGO, 'We the Citizens', rumoured to be backed by RSS, filed a petition in the apex court, demanding the abrogation of Article 370 and 35A, and the court accepted the petition.

On 18 July, during the hearing of the case, the Centre avoided stating its stand on record, prompting Chief Justice JS Khehar to refer the case to a larger bench.

Attorney General KK Venugopal, while refusing to file an affidavit, told the court that a “larger debate is needed on this sensitive issue”, speaking in line with BJP's official stand on the issue.

The attacks on the Article 370, described as the ‘article of faith’ as also a wall that "prevents" development of J&K, are not new. Similar petitions have been dismissed by the apex court in 1956, 1961 and 1970.

Speaking in Lok Sabha in 1963, Prime Minister Jawaharlal Nehru said:

I think it is a very good rule which should continue because Kashmir is such a delectable that moneyed people will buy up all the land there to the misfortune of the people who live there; that is the real reason, and that reason has applied ever since the British times for one hundred years or more.

Also Read: Autonomy for States Via Article 370 Won’t Threaten ‘Idea of India’

Valley on Boil

Noted constitutional experts say the Article 35A merely confirms the different status of J&K, and the exclusive rights of the citizens of the state granted under Article 370, but the Centre's dithering in the apex court has raised suspicions and anger in the State.

Such rights over property and jobs are also conferred by the Constitution upon the citizens of other states like Himachal Pradesh, Arunachal Pradesh, Andaman and Nicobar Islands among others.

Fiddling with J&K’s special status, under the garb of constitutionalism, is bound to have consequences. Issues which have been settled in a democratic manner can’t be dealt with by the courts. It appears this all is being done to take away the core sovereignty of the state of Jammu and Kashmir.

Zaffar Shah, Advocate

On the back foot, the state government, led by Chief Minister Mehbooba Mufti, has also warned that there will be “no one in Kashmir to shoulder the national flag” if Article 35A was abrogated, echoing the sentiments of the shrinking mainstream in the Valley.

The PDP, however, is hopeful that the Centre will take a "reasonable view" of the matter.

These issues have already been settled in the Constitution as well as the ‘Agenda of the Alliance’. We are hopeful that the courts will take a reasonable view of the matter.

Naeem Akhtar, JK government Spokesperson

"New Delhi’s stand (in apex court) has put the state government in the dock. They (Centre) didn't rebut the contentions of the litigant, which is deemed to have been accepted, and by that view we can conclude that the government of India also wants the Article 370 to go,” Advocate Isaac Qadri, J&K's former attorney general, said.

Also Read: When Kashmir’s Spiralling Out of Control, Why Use Military Means?

The BJP, on the other hand, however, isn't willing to budge or soften its stance.

Our vision for J&K is clear; we want complete integration of the state, but we don’t have the mandate at present. Also, we can’t influence the courts to issue judgement as per our desires.

Sat Sharma, BJP’s J&K President

Also Read: We Mustn’t Tamper With Article 370 or Negotiate With Separatists

Shaking Ground, Changing Winds

On Tuesday evening, Mehbooba Mufti took everyone by surprise when she arrived at the Gupkar residence of the National Conference patron Dr Farooq Abdullah. A party source said the two leaders discussed the petition challenging Article 35A in the apex court, and its likely fallout on Jammu and Kashmir.

The news was broken by Omar Abdullah on Twitter, "MehboobaMufti called on @JKNC_ President this evening to discuss the prevailing political situation in the state. It was a cordial meeting,” the National Conference working president tweeted.

Senior Abdullah is reported to have told the Chief Minister to “consult other parties, with an aim to create a wider consensus amongst like-minded parties to prevent abrogation of Article 35A,” according to reports.

"By reaching out to the Opposition, instead of meeting the top BJP leadership at the Centre to convey her disapproval on the issue, she is obliquely conveying a message to her alliance partner that the wind in Kashmir can blow in any direction," Noor Mohammad Baba, renowned Kashmir-based political scientist, said.

(The writer is a freelance journalist based out of Jammu and Kashmir. He can be reached at @Gaamuk. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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