New challenge to Article 35A in SC puts Valley on the edge


With the Supreme Court deferring the hearing of the petitions challenging the Article 35A which forbids outsiders to settle in Kashmir, the State has breathed a deep sigh of relief. On August 26, a bench headed by Justice J S Khehar accepted the plea of the Jammu and Kashmir government that the pleas challenging Article 35 A be heard after Diwali. The decision at once relaxed the prevailing tense situation in the Valley. The apprehended repeal of the state subject law had put the Valley on edge. Over the past two weeks the tension had risen to a flashpoint. Barring a few, the opposition parties in Valley have closed ranks. So have social groups. The issue has also created a deep sense of uncertainty in the society at large.

Kashmir by Tariq Mir (3)

Before the deferment of the hearing, Hurriyat had come out with a protest calendar which culminated with a call for hartal on August 29 when the court was supposed to prounounce the judgement. And in case of an adverse judgement, there was a direction to start the agitation. However, the amalgam has now postponed the calendar. But the uncertainty has by no means abated.

The evolving situation has created a moment of reckoning for the Chief Minister Mehbooba Mufti whose ideologically antithetical coalition with the BJP is being questioned again. She herself has warned of far-reaching political repercussions if the article was tinkered with. However the CM has taken solace from the assurance given to her by no less than the Prime Minister Narendra Modi. “The Prime Minister assured me that the Article 35A will be respected”, Mehbooba told media after emerging from a meeting with the PM on August 11. But the anxiety didn’t go away in Valley. For there was no word to support her account from either PMO or the BJP.

Kashmir continues to look forward with a bated breath to the Supreme Court’s hearing of the petition challenging the continuance of the 63 year old law which bars outsiders from buying land in the state and becoming its citizens. On July 18, a division bench headed by Chief Justice JS Khehar had referred the petition to a three-judge bench after the Attorney General of India KK Venugopal told the court that the constitutional issues were involved in the case.

Venugopal told the bench that the central government was not keen on filing a counter-affidavit in the case, and wanted a “larger debate” on the issue. This sent alarm bells ringing in Kashmir with people suspecting that the NDA government wanted the law to go. The fears are not unfounded. Repealing J&K’s special status has been a part of the core agenda of the Sangh Parivar. And the NGO, ‘We the People’ which has filed the petition is alleged to be allied with the Sangh groups.

And even though the PM Modi has allegedly assured Mehbooba that the Government of India will not tinker with J&K’s special status, she has received no assurance that the centre will defend the law in the court. And which according to the noted J&K lawyer Zafar Shah is critical to the survival of the law. “Normally, filing an affidavit means clearing its position in a legal matter. By not filing the affidavit, the government of India has kept its options open and made the issue uncertain. It also means that by abstaining from filing an affidavit, they have committed themselves to a position that Article 35A should or shouldn’t remain,” Shah said. “We will have to wait and watch, which way the cat jumps, as and when the petition comes for hearing before the court”.

So the situation continues to be uncertain. Mehbooba, meanwhile, has left no stone unturned to stave off the prospect of any dilution or revocation of the law. In J&K she has rallied the opposition around her. On August 6 she drove to the residence of the former J&K Chief Minister and the National Conference president Dr Farooq Abdullah to make a common cause on the threatened law. She also had a meeting with the smaller opposition parties in the state. At the same time, she also sought to take her coalition partner the BJP, into confidence by flying to New Delhi and hold meetings with home minister Rajnath Singh and the PM Modi.

Though she has received assurances, these will be of little value in a court case unless the centre also chooses to put up a strong defence by filing a counter-affidavit which it hasn’t done so far. And in the absence of such an affidavit, the fate of the Article 35A will depend on what the apex court makes of the NGO’s petition. And this is why the PDP, being the ruling party in partnership with the BJP, has still reasons to worry. “It is a serious issue for us,” says the minister and the state government spokesman Naeem Akhtar. “If the Article 35A is tinkered with, it will sweep the mainstream parties off in Valley. We will have nowhere to go”.

There is also widespread disquiet in the population at large too, something that is also shared by the media. “The Article 35A is critical to the special status of the state. If it is tampered with, this will be the last nail in the coffin of the Article 370. There will be nothing left in the special status to protect,” a recent editorial in the Greater Kashmir reads. “The state government thus can’t be found wanting in its defence of the Article 35A. But this defence shouldn’t be confined to word only. The people want their government to be seen acting too”.

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