35-A

Trojan horse and falling defences: Israel-type settlements feared amidst uncertainty over accession, citizens’ rights in JK

Picture courtesy: Jammu and Kashmir Coalition of Civil Society

As Kashmir ups the ante over citizenship rights, on the first glance, popular mood on the street appears to have gone from ‘Hindustan ka Aaen Manzoor nahi‘, to ‘Article 35-A ki Behurmati Manzoon Nahi‘. If seen as a black and white binary of thoughts, it may lead one to be confused with regards to the protests being a rallying cry for the protection of the Indian constitution, specifically the “special status”.

But that would be far from the truth.

In Kashmir, it is not the “special status” within the Indian constitution that is being fought for on the street, but the “disputed status” of all of Jammu and Kashmir, and a potential demographic change to rig the outcome of a referendum. A feat that was achieved in Jammu in 1947, and is now being attempted in Kashmir.

Although the United Nations internationally recognises the region as a disputed territory, in the Indian constitution it is the Article 370 that ensures political autonomy, albeit on paper, and the Article 35-A (State Subject Law) that bars anyone except the natives to have legitimate settlements in Jammu and Kashmir, and hence serves as a treaty that, by other means, recognises the region as one in dispute.

The mood on the ground is that it is “a matter of life and death”.

The people on the streets today say they are there to protect the survival, the culture, and resources of the land that they are born in. Not to uphold the sanctity of a word on paper, that has de-sanctified itself by being changed, more often than not, in their disfavour.

There is also talk of a police revolt. Although a full-fledged uprising within the ranks of the armed forces of Jammu and Kashmir is unlikely if not impossible, in a whisper one senior police officer asked me “do we have any chance?” The answer was given to him by a trade leader sitting next to me.

“Why don’t you join us instead of issuing orders of raining the Laathis?” To which the gentleman replied that he would do it without the uniform, an offer that was curtly refused.

The first time there was a revolt by the militia was during the Poonch Rebellion in 1947, followed by their disarmament, followed by the Jammu massacre, followed by the tribal raids from Pakistan. The 1993 police mutiny was another instance of revolt that broke in the ranks.

ALSO READ: JammuMassacre@70: The slaughter secret and the military revolt in Poonch

The issue of the State Subject unites voices across the political spectrum and the regional divide. Although there is legitimate fear of Israeli-style settlements in Kashmir, given the fact that many extremist Hindus have on Indian national TV announced plans for the same, in Ladakh, there is fear of businesses being taken over by outsiders at the cost of locals, now on a healthy economic trajectory.

In Jammu, the general feeling beyond the BJP rhetoric is that the region will not only lose its distinct Dogra character, but also its jobs and trade. The feeling is not unfounded, if one recalls the purpose the State Subject Law was brought in for.

ALSO READ: As D-Day over 35-A approaches, floodgates might open in ‘indifferent’ Jammu, Ladakh

The law was initially written down as the order of the Hereditary State Subject, by the Maharaja of Kashmir in 1927, long before the Indian Constitution existed, or the Constitution of Jammu and Kashmir had taken its present form.

Under the pressure from the Kashmiri Pandit community, who made up a majority of the bureaucratic force of the Maharaja then, launched the “Kashmir for Kashmiri movement” to lobby for the same and the order was passed to stop the influx of Punjabi traders.

Hari Singh.

After the formation of India and Pakistan in 1947, the State Subject law primarily acted as a protection for the Dogra population in Jammu. The law made its way into the Indian constitution through a Presidential Order in 1954, and was also adopted into the present day constitution of Jammu and Kashmir in 1957.

A continued assault and lack of defences

The history of Kashmir that in vogue often takes the starting point at the Tribal raids from Pakistan to suit the narratives of New Delhi and the National Conference, on purpose, seeks to forget the Jammu Massacre and the armies of Hindu Extremists that entered Jammu, to ethnically cleanse the region and change the demography. This happened many days before the Tribal raids, and its convenient forgetting allows for the aggressor to be labelled incorrectly.

The aggressor in Jammu and Kashmir, before the Tribals from Pakistan, factually and historically, has been extremists from India, that poured into Jammu. The organisation at the forefront of the assault of one of the most brutal massacres in human history today calls itself the RSS.

ALSO READ: JammuMassacre@70: When the armed RSS men had a field day

Gandhi had commented on the situation in Jammu in 1947 in his speech at a prayer meeting in New Delhi and said that “Hindus had gone there (to Jammu) from outside and killed Muslims”. Gandhi was assassinated by Nathuram Godse a member linked to the RSS, the same organisation which through its political offshoot, the Bharitya Janata Party, has assumed power in India today.

Post the Jammu Massacre, the Tribal raids, the subsequent sending of troops and the accession of Kashmir to India, Jawahar Lal Nehru, India’s first Prime Minister, in his public broadcast in 1947 is recorded as saying:

“We received urgent messages for aid not only from the Maharaja’s Government but from representatives of the people, notably that great leader of Kashmir, Sheikh Mohammed Abdullah, the President of the National Conference. Both the Kashmir Government and the National Conference pressed us to accept the accession of Kashmir to the Indian Union. We decided to accept this accession and to send troops by air, but we made a condition that the accession would have to be considered by the people of Kashmir later when peace and order were established.”

Sheikh Abdullah (left) and Jawaharlal Nehru

But today, 71 years later, as the RSS is back in the driving seat with a public mandate, the assault in its second stage is legal, and the defences just as weak.

ALSO READ: Hearing on Article 35A: Is the State Govt’s defence ‘extremely weak’?

The walls that gave way during the Sheikh’s time then, during the time of the Muftis now allowed a seemingly innocent Trojan Horse in the form of a PIL to enter, unattended and uncontended. Word was, that the law was sacrosanct and cannot be touched, and the legal front was almost left defenceless.

The case in point and the lost love

The Supreme Court of India last summer had asked the Government of India to file a reply within three weeks to a writ petition filed by an NGO seeking abrogation of Article 35-A.

The PIL said the state government under the guise of Articles 35-A, 370—granting special autonomous status to JK—has been discriminating against non-residents, debarring them from buying properties, getting a government job and voting in the local elections.

Another reason in another case filed in the court also termed discrimination against women as one of the reasons to abrogate the act. After ‘rescuing’ the Indian Muslim woman from Triple Talaaq, the RSS backed organisations seemed to have found a long lost love for the Kashmiri woman who they claim loses the state subject by marrying outside.

But instead of removing the patriarchy from the law by letting the woman retain the state subject after marriage, the argument made, sought to do away with it. Instead of allowing the woman the privilege, the aim was only to cut the man’s privilege, to enter the house and take over.

The law anyway does not snatch the state subject of the woman, but debars the non state subject husband from owning property in Kashmir, while the woman retains her state subject, and property.

In October last year, when the case was to be heard, the state government, then lead by the PDP, had argued that the petitions were “not maintainable because the issue has been settled by the apex court in a case titled Sampat Prakash and others.”

Zaffar Shah, Kashmir’s prominent advocate, had said that “J&K’s case isn’t weak, but the defence put by the state is very brief based on the earlier SC judgements.”

The defence was almost generic, seemed half-hearted, and appeared to have been prepared by children who were distracted by toys.

After some political posturing by the party, NC patron Dr Farooq Abdullah called for the opposition meet over the issue, warning the 2008-type uprising in case of any judicial fiddling.

“We have engaged the best constitutional expert of the country, Fali Nariman, to contest the case in Supreme Court along with our Advocate General,” the state law minister Abdul Haq Khan had said, posturing like a fireman on the raging issue.

But over eight months down the line, nothing concrete was done to safeguard the act, and strengthen the case, showing not just incompetency of the successive governments, but also their unwillingness to defend those who voted them to subordinate power.

ALSO READ: PDP hits the streets, again: Campaign for Article 35-A or politics of relevance?

As the Joint Resistance has now hit the streets in seemingly a territory traditionally negotiated and lost by the wrongly labelled “mainstream” parties, the battle is not on, and cannot be won on, the street. The battle ahead is legal and the political parties responsible for weakening it know this.

Sitting atop a volcano and a slippery slope

Even if the removal of the provisions doesn’t immediately allow settlements to be built in Kashmir, New Delhi has tried to corner the Hurriyat into acting as a legitimate opposition, which otherwise sees itself outside the structure of the state and views resistance as organic, in almost a Catch-22 situation.

ALSO READ: While defending 35-A, make sure your ‘real cause’ isn’t diluted: Rashid tells Resistance leaders

Manoeuvring around the paradoxical rules in the political maze will prove to be a very slippery slope, even as the slogans have re-calibrated themselves on the banners. “Protect the disputed nature of Jammu and Kashmir,” they read.

The Government of India (GoI) seems to be oblivious to the warning drums being beaten loud and clear. As basic citizenship rights in Jammu and Kashmir are under a threat of dilution, experts have warned that touching the law will open a Pandora’s box.

Legal experts argue that it is under the protections for the Subjects of the State written down in the Article 35-A and the conditions placed under Article 370, that the Jammu and Kashmir acceded to the Union of India in the first place. And going back on this treaty, will undo the conditions of the accession itself, making any further legalities impossible by law, and Indian presence in Kashmir illegal.

Authorities on the constitution of Jammu and Kashmir say this might not have any concrete effect in the place where AFSPA continues to be legal, but any settlements thereafter shall be illegal by international law, something which might not play well for India.

A former interlocutor appointed by the GoI to Kashmir, Radha Kumar, whose recommendations after the civil uprising in 2010 were trashed by the GoI, has maintained that the arguments put forth in the petitions seeking to abrogate the special status “carry no weight”.

While the older petitions by the Sangh affiliated NGOs have been repeatedly dismissed by the Supreme Court, former Congress party leader Mani Shankar Aiyar has said that the Union government is playing with fire.

How this plays out remains to be seen, but the assault has at least done one thing for now, which is bringing Kashmir ever more closer to Jammu and Ladakh.

 

Qazi Zaid is a journalist based in Kashmir and edits Free Press Kashmir. 

 

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