35-A

From Resettlement Act to Article 35-A: The tale of two women campaigners

Farida Ghani (left) and Charu Wali Khanna

While one’s forefathers had purportedly migrated from Kashmir during the Afghan Rule in the late 1700s, another was driven out by the overwhelming circumstances in the fall of 1947. Years later when both tried to reclaim their lost roots, one was shunted out, while another’s plea is now threatening to create ‘Israel-type’ settlements in Jammu and Kashmir.

Amid political fanfare, as the first trans-LoC bus pulled over in Kashmir’s Uri on April 7, 2005, a woman from Muzaffarabad walked out and took time to contain her gush of emotions.

Some 57 years back, her father and family had traversed the same route to escape the crushing situation in the valley. For the first time since that fall of 1947, she had come to meet her cousins in Srinagar.

Back in her ancestral home, she was welcomed with festive fervour. But as the emotional reunion refused to thaw, many wondered how frontiers and fences ended up messing the lives of Kashmiris.

That woman from Azad Kashmir was Farida Ghani, daughter of erstwhile affluent barrister of the valley.

Farida Ghani with her relatives in Srinagar during her 2005 visit.

During her stay, Ghani visited her ancestral house and three other properties in Srinagar. She was left heartbroken when told that her ancestral properties have been declared as state assets.

Ghani filed an application at the Custodian General’s office, seeking a copy of the notification that had declared her parents’ real estate as evacuee’s property. Under the Resettlement Act, it was her right to seek details and claim her property. But little did she know that her plea would soon trigger a political storm in the state.

Introduced in 1980 by Sheikh Abdullah’s government, the Resettlement Act was passed by both the houses of the state legislature in March 1982. Srinagar and Delhi literally locked horns over its passage.

According to the Act, any person who was a state subject of J&K before May 14, 1954 and had migrated to Pakistan after 1947 was to be recommended for resettlement.

Sheikh Mohammad Abdullah.

The Act cleared the homecoming decks for lakhs of JK residents who were forced to migrate from the state—especially in wake of the Jammu Massacre, which changed the demography of the region.

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

Years after that least reported genocide of the modern world, as Abdullah’s government brought the Act, it once again mobilised the RSS and the freshly created BJP cadres in Jammu and threatened to trigger the tensions.

Arguing that the bill has eroded the sole competence of “the Centre to grant citizenship of India”, the Sangh forces threatened to launch an agitation against what they called “mischievous piece of legislation”.

But Abdullah-led NC government firmly stood its ground. Through its mouthpiece Navai Subah, the party came up with fiery editorials, accusing the BJP of fanning communal tempers “in order to make inroads into the state”.

Before breathing his last in September 1982, the “old lion” defended the Resettlement Act by citing the Delhi Agreement of 1952, wherein a specific provision was included for ensuring the rights of those JK residents who went to Pakistan in 1947.

“Only 117 persons have returned since 1947,” Abdullah set the records straight. “We cannot deny them their rights. They are free to return to their home any time.”

But the Sangh forces resorted to spin-doctoring. Arguing that the Bill might encourage “anti-national infiltrators”, BJP “instigated” the three lakh non-Muslim refugees who migrated from West Pakistan in 1965 and 1971, and are presently occupying swaths of evacuees’ land in Jammu’s border areas.

As New Delhi stood behind the anti-Act crusaders, the legislation never saw the light of the day — until some 20 odd years later, Farida Ghani’s right to seek her ancestral property details renewed the din and debate.

Ganging up against her demand, the BJP and allied outfits dubbed the Resettlement Act against the “Hindu-dominated” Jammu region, where sizeable Muslim evacuees’ properties are occupied by Hindu refugees, even though the region had achieved Hindu domination after the mass massacre of Muslims in 1947.

A staunch opponent of the Resettlement Act and then Mufti Sayeed-led PDP-Congress coalition government ally, Bhim Singh created commotion over the Ghani’s plea.

Bhim Singh.

The Panthers Party Supremo moved to the Supreme Court and sought to restrain the state government from entertaining any application from Pakistani nationals for restoration of their property in the state. “Such claims could open a floodgate of demands and create social disorder and communal unrest in the state,” Singh argued.

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

Soon as the Indian apex court issued notices to both GoI and the State, even Congress assumed a communal stance over the row.

Unlike his daughter’s suspicious stance on Article 35-A row, Mufti Sayeed cleared his stand on the issue. “Since the Act is stayed,” the late PDP patron argued, “the state is legally bound not to entertain any such claim on the evacuees’ property.”

While Mufti’s take was read as a major jolt to the Act, the row over Ghani’s legitimate plea went to expose the rightwing parties’ fears, that if the Act sees the light of the day, then Muslim percentage in J&K, specifically in Jammu, will further rise. That’s why, perhaps, the case was binned by the Supreme Court without referring it to a larger bench, as is feared in the case of Article 35-A now.

For its failure to secure the rights of uprooted JK citizens, the PDP-led coalition government was accused of a clear ‘legal surrender’. Years later, as an ally of BJP, PDP in its second power stint stand accused of ‘total surrender’ on Article 35-A. As history was repeated, many felt that the Self Rule party paved way for the larger constitutional assault.

By using courts to erode JK’s State Subject Law, the Sangh outfits reportedly sponsored five petitioners in the Supreme Court. One of those petitioners happened to be a woman who traces her Kashmiri roots through some family accounts.

But some two years before she would file her petition, the then BJP’s PM-elect Narendra Modi had come to Jammu on Dec 1, 2013, to address his ‘Lalkar’ rally. In a first veiled attack against Article 35-A, Modi made his party’s agenda clear: “Does Omar’s sister who is married to an outsider have the same rights in Jammu and Kashmir?”

After Modi’s advent as Prime Minister of India, the Supreme Court started receiving petitions challenging Article 35-A. Suddenly, it seemed, as if the ‘Lalkar’ rally was shaping into a courtroom trial.

During the same time, the woman petitioner and a Supreme Court advocate Charu Wali Khanna wanted to buy land to build a house in Kashmir. She was debarred by the PDP-BJP government citing Article 35-A.

Charu Wali Khanna.

The Article, added to the Constitution by a Presidential Order in 1954, allows the Jammu and Kashmir legislature to define the list of ‘permanent residents’ of the state, who are eligible to vote, work for the state government, own land, secure public employment and college admissions. Non-permanent residents are denied all these rights.

“Under the guise of Article 370 and Article 35A, men and women are subjected to different treatments and discriminated on the basis of gender,” Khanna argued in her petition to Supreme Court. Her petition contents, many believed, bear the stark resemblance with the Modi’s ‘Lalkar’ rally speech.

She challenges the Dogra legislation of 1927 that states that the wife or widow of a state subject would also be considered one so long as she did not leave the state for permanent residence outside.

Khanna is intriguingly tracing her family’s roots in Kashmir based on anecdotal evidences, myths and oral tradition.

Unlike Ghani, she argues that her ancestors, Wali, left the valley due to the “brutal tyranny” under the Afghan rule during the late 1700s. In this backdrop, she seeks court’s intervention, “Am I not a Kashmiri?” While her petition based on some family fable was entertained, Ghani’s plea based on the Resettlement Act was trashed in the Indian Apex Court.

Amid all this, many hope that the post-Eid verdict on Article 35-A should be dismissed. But in case the three-judge bench refers it to the five-judge bench, then many fear what is being called a constitutional coup — which is likely to push the state into an agitational mode.

 

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