J&K special status in new legal row

Tourists In Kashmir (8)
Conspiracy fury: There is a paranoia about a perceived hostile centre allegedly trying to dilute the Valley’s character

On February 9, the Jammu and Kashmir government sacked its lawyer Sunil Fernandes after he allegedly refused to file a review petition against the Supreme Court’s December 16 order which ruled that the state had “no vestige of sovereignty outside the Constitution of India,” thereby effectively surmounting the importance of the J&K Constitution.

The judgement had become a source of controversy in Valley, being seen as yet another attempt to downgrade state’s supposed political autonomy.

The Supreme Court’s order had come in response to the J&K High Court’s October 2015 judgement which ruled that J&K “continues to enjoy special status to the extent of limited sovereignty retained by the state — guaranteed under Article 370 of the Constitution”.

But the top court overturned it. In fact, it went one further, making it clear that the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) would apply also to J&K, something that was disputed by J&K Government. The Act allows banks and other financial institution to attach and auction residential or commercial properties to recover loans.

According to State Government, only state subjects can own property in the state as per the provisions of the Article 370. Hence, the extension of SARFAESI Act to J&K is seen as a dilution of the special status of J&K as only J&K Bank is a state subject and the other banks cannot take over the property of their defaulters and own it.

The court orders like these are thus perceived as an infringement on the state’s constitutionally validated special position in the Indian Union. There is thus a paranoia about a perceived hostile centre allegedly conspiring “to dilute Valley’s Muslim majority character”.

The judgement is being seen as yet another bid to downgrade political autonomy of the state

And this paranoia, in turn, is bringing into full play the issues of land and identity, hitherto more or less dormant elements of the ongoing conflict which operated so far largely along political and militant dimensions. In fact, it is this sense of being under sustained legal and political assault that had brought people to the bay just before the popular Hizbul Mujahideen commander Burhan Wani was killed on July 8. Nearly a hundred people were killed and several hundred were blinded during the six-month long unrest and the shutdown that followed.

But as Kashmir returns to normalcy, the anxieties haven’t disappeared. And with Supreme Court overturning the J&K High Court’s October 2015 order which had drawn some sort of a parity between Indian and J&K Constitution, and ruling that J&K Constitution was subservient to Indian Constitution, the fear hasn’t got even time to remain dormant for a while. And if the signals from New Delhi continue to stoke these anxieties, as is the case, another unrest may return sooner than we expect it.

There are already six challenges to the Article 370 and Article 35A which governs the Valley’s state subject laws — four in Supreme Court and two in Delhi High Court. For Sangh 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 Kashmir issue is through a sweeping demographic change in the state. Last year, a petition against Article 35A was filed by an RSS-linked Think Tank J&K Study Group in Supreme Court. The petitioner seeks the repeal of the “unconstitutional provision” since it was added by Presidential Order and not by approval of the parliament.

The Article 35A was extended to the state through a 1954 Presidential Order. It gives protection to the state subject laws in J&K whereby outsiders are not allowed to settle or acquire property in the state. The legal challenge to such constitutional safeguards and the speculation about their apprehended outcome has created a fraught situation in J&K and if nothing is done to pre-empt this assault, Kashmir could be headed for another eruption sooner than later.