Over the past year, the BJP and its allied nationalist outfits have gone conspicuously silent over the issue of removal of Article 370, which endows special status to J&K. They are partly overawed by the egregious constitutional and political fallout of such a move and partly held back by its coalition government with the PDP in the state.
The attack on Article 370 has taken on a more creative form now. Effort is being made to dilute one of its key provisions that protects J&K’s existing demographic composition — Article 35A. The rationale for doing so is that it would clear the decks for settlement in J&K of Indians from other parts of the country, which is barred by Article 35A.
In July, the J&K Study Centre, an RSS-backed think tank, filed a petition in the Supreme Court, contending that the Article was ultra-vires of the Constitution as it was extended to the state through a 1954 Presidential Order without the approval of the Parliament.
According to senior Supreme Court advocate and former NDA cabinet minister Jagdeep Dhankhar, the addition or deletion of an Article amounts to an amendment to the Constitution. “The Constitution can be amended only by the Parliament as per procedure clearly laid out in Article 368. But Article 35A was never presented before the Parliament of India,” Dhankar contends.
For Sangh Parivar groups, it is Article 35A and not Article 370 which comes in the way of settling Indians from other parts of the country in J&K. They believe that the only way to resolve the Kashmir issue is through a sweeping demographic change in the state.
The petition has thus sent alarm bells ringing among the Muslim majority in the state. It has built up into a huge political issue, with the opposition National Conference (NC) asking the state government to reveal its plan of action to defend the Article beyond the “ceremonial newspaper statements”.
“Any infringement of the special status of J&K will amount to backstabbing the people of Jammu, Kashmir and Ladakh regions,” nc leader Devendra Rana said. “Article 370 in its totality is irrevocable and those thinking in terms of weakening it by fiddling with 35A are daydreaming.”
On 11 October, Kashmir Centre for Social and Development Studies, a civil society group, held a roundtable conference on Article 35A attended by senior lawyers and other civil society members. The group called for a “People’s Movement” to defend the Article.
Zafar Shah, a noted Kashmiri lawyer, said, “If Article 35A goes, it means the protection available to permanent residents will go and this protection will also go in case of employment and acquisition of property and scholarships.” The J&K government has already received a notice thinkfrom the Supreme Court on the petition, asking it to file a response by 3 November.
However, legal experts, while seeing the development as serious, don’t think that the Article can be repealed. “Article 370 and Article 35A are basic features of the constitutional relationship between New Delhi and J&K. They are, therefore, untouchable,” says Shah. “The courts cannot entertain petitions which involve political issues. It betrays the faith of the people in constitutional democracy.”
Similarly, Kashmir High Court Bar Association, has constituted a five member panel which will also consult separatist leaders on the issue. This is an important development as separatists who operate outside the system would be joining a legal battle to safeguard J&K’s special status within the union.
“After the consultations, the Bar will file an application before the Supreme Court for arraying it as party in the matter,” Bar president Mian Qayoom said.
What complicates matters further is that the Article 35A is not the only presidential order extended to the state since 1950s. Most of these have been used to dilute the Article 370 and provide the Centre a say in the affairs of the state.
“If the Supreme Court rules that the Presidential Order on Article 35A is invalid, such a judgment will have to be made applicable to all such orders from 1950 till date,” says Zafar Shah. “It will also affect various provisions of the Constitution of the state and result in a constitutional crisis.”