35-A

Old wine in new bottles: Why offence is the best defence for Kashmir

FPK CARTOON/ANIS WANI.

Sponsored erosion of Kashmir’s ‘Special Status’ through local collaboration and courtroom campaigns is nothing new, but as the Supreme Court of India is all set to hear a bunch of sponsored litigations against Article 35-A on August 31, many see it as a classic case of old wine in new bottles. While a battery of lawyers from Kashmir is already preparing their defence in Delhi, many believe that offence is the best defence to save the last vestiges of Jammu and Kashmir’s unique identity.

As newsprints carrying details of the Bhartiya Janata Party (BJP) chief Ram Madhav driving around Srinagar to meet Kashmiri politicians in an effort to manufacture a government in Kashmir hit the stands, speculation of a political coup started doing rounds.

An exercise that may look like restoration of democracy to the rest of the world, to form a government that represents people, after New Delhi appointed governors ruling Kashmir since the BJP pulled out of the alliance it had with the Peoples Democratic Party (PDP), experts in Kashmir believe that these schemes have been repeatedly plotted in Kashmir, starting with toppling governments, and placing favourable and subordinate rulers, who have no mandate, but are selected by the concessions they can give New Delhi.

“If one commits a mistake once it is forgiven, but if one repeats the mistake again and again without learning any lessons then it is not a mistake,” a man in his late 40s tells me while shifting used clothes he is selling on a cart in the Hari Singh High Street, a stone’s throw away from the Civil Secretariat and the High Court.

But if one looks at the history of government formation and toppling, and more formation, and more toppling in Kashmir, the man’s words almost read like an analysis in a sentence.

Barrister K. L. Gauba (Kanahya Lal) who went on to become the minister of Education in Punjab during the British rule, and converted to Islam and named himself Khalid Latif, in his book Passive Voices that details the ‘pathetic condition of Indian Muslims’ dedicates a chapter to Jammu and Kashmir.

He writes in detail the events that explain how through presidential orders, one after the other, the autonomy promised to the government and people of Kashmir was eroded, and how favourable governments were placed in Kashmir for the same.

Much of the blame of what we see today, directly goes to G. M. Sadiq.

Barrister K. L. Gauba

Starting from when the then Prime Minster of Kashmir, Sheikh Mohammad Abdullah was arrested and dismissed as the head of the government, it was not only done in a manner that is disgraceful, but also a sign of what was to come.

It was General Kaul on whose orders Abdullah was detained by a low rung police officer. Kaul in his book The Untold Story writes that it was contrary to Nehru’s wishes, that Kaul planned and executed the mission, and although Nehru stormed on the phone after getting to know about it in the newspapers the next day, he went on to claim the credit for it the following day.

Gauba, in his book published in early 1970s writes that although Abdullah was in constant and close collaboration with Nehru, he was not wholly certain that he would not be ‘betrayed by his friends, eventually when his collaboration was no longer needed’.

“… I had the opportunity of meeting Sheikh Abdullah in Bombay. In the course of discussion, Sheikh Abdullah, over and over again, expressed apprehension that he might eventually be let down much in the same way, as the Frontier Leader Abdul Ghaffar Khan had been “thrown to the wolves” by the Congress, when his support no longer remained important to them,” Gauba writes.

He goes on to write that these apprehensions of Sheikh Abdullah did not prove to be unfounded.

“In spite of all his services to Kashmir and to India, on August 9, 1953, while he was still Prime Minster (of Jammu and Kashmir), he was not merely summarily dismissed by the Sadr-e-Riyasat, who owed his position more to Sheikh Abdullah than to anyone else, but was also interned and incarcerated forthwith without a trial.”

Abdullah’s detention without trial, almost like how PSA today functions, his release and detention again on charges of Treason and Conspiracy Against the State, passed some 11 years before he went to Makkah for pilgrimage on his release, coming back from where he was again arrested without trial for more than three years, until his final release in 1968.

Sheikh Abdullah coming out of the Central Jail, Jammu.

In the years that passed, while Abdullah was in jail, through presidential orders and tacit support by the local government placed after Abdullah’s imprisonment, New Delhi managed to demote the Prime Minister’s position to the Chief Minister, and Sadr-e-Riyasat (Head of State) to the title of the Governor, along with many other such ordinances.

On Abdullah’s Home Minister, Bakshi Ghulam Mohammad, who was made Prime Minister after Abdullah’s first imprisonment, Gauba writes, “Bakshi served Kashmir well, served India better and served himself perhaps best. According to Ayyangar Commission, Bakshi and his immediate family members amassed wealth aggregating to Rs 1.46 crores. But to him must be given the credit, if credit be, for the Kashmir constitution of 1955 and two elections, in which he obtained by various devices, overwhelming majorities successfully directed equally to maintaining himself in power, and Kashmir in India.”

Bakshi however, while maintaining that ‘Kashmir was an integral part of India’ by including it into the first part of the Kashmir constitution, did not surrender any substantial powers to New Delhi. While Abdullah was dismissed by Sadr-e-Riyasat without Nehru’s approval, Bakshi as he led the National Conference government was ousted by Nehru himself under the Kamraj plan.

“By 1963, being more or less sure about the stability of the ‘integration’ of Kashmir with the Indian Union, the Pandits of Srinagar, and the Dogras of Jammu with their allies in Parliament and elsewhere now pressed a campaign for the repeal of Article 370.”

Bakshi Ghulam Mohammad

General Kaul, on whose orders Sheikh was arrested, spearheaded the anti-Article 370 campaign, and talks about the same in his book The Untold Story. Kaul was the same General who in the war with China had abandoned his troops.

As the campaign against Article 370 grew stronger, voices in Kashmir started opposing it.

It was here that Sadiq entered the scene, by writing an article in the Hindustan Times’ Delhi edition, advocating the abrogation of Article 370. He had thrown bait, in the paper that was well-read in Lutyens, and New Delhi had found its man.

A Kashmiri Muslim against Article 370, and for complete merger of Jammu and Kashmir with India, Sadiq suited New Delhi.

In the elections that followed, after Bakshi was ousted in the Kamraj process for corruption and amassing wealth, Sadiq however did not get many seats. Although he was New Delhi’s favourite, the voters had voted for Bakshi’s National Conference, that after Bakshi’s corruption scams would have Shamsuddin Khan on the Prime Minister’s chair, albeit for a very short time.

Bakshi’s National Conference secured 56 out of 75 seats, and Sadiq’s Democratic National Conference only received 13. Sadiq saw no prospect of power without supporting the Bakshi led NC, and thus supported the government, only to take over the party in a coup.

Within months of the new government taking oath, the mysterious disappearance of the 1,400 year old Holy relic in Hazratbal Dargah created chaos on the streets. ‘The relic is stolen’, was the word on the street, and while Kashmir fumed, Bakshi’s properties in the Valley went up in flames.

Under pressure, Shammusudin Khan had to step down. With anger against Bakshi growing, the power vacuum continued as the Prime Minister’s chair remained empty.

A sea of people protesting against the sacrilege of the holy relic

This allowed Sadiq to step up, merging his party with the National Conference, emerging as its leader, exactly as New Delhi wanted. Sadiq had successfully taken over the government, even after receiving a mere 13 seats originally. His 13 along with NC’s 56 seats after the merger gave him a clear majority, required to change the Kashmir constitution.

It was not just the Presidential order that was enough to change the Prime Minster to the Chief Minister, the assembly had to pass it too, although in grey legal area, politically it had to look like the Kashmiris wanted it. With Sadiq’s majority in the assembly, the presidential order was certain to be accepted.

On New Delhi’s orders, Sadiq amended the constitution, changing the Prime Minister of Kashmir to Chief Minister, the Sadr-e-Riyasat to the Governor, the President of India to supersede the legislature and be able to enforce president’s rule. Still unsatisfied with Sadiq’s services, New Delhi pressurised him to merge the party with the Congress, which then directly ruled Kashmir.

About the situation in 1973, Gauba writes, “the unique position of Kashmir was not limited to the terms of Constitution. Kashmir has become the bivouac of a vast assembly of Indian Military and Air Force personnel, who have for nearly 20 years constantly and at most street corners stood guard against possible second thoughts by the legislatures and the Government of Kashmir on the integration of the State with the Indian Union. Democracy in Kashmir is thus underlined at all times in form and substance by the arms of the Indian Army.

“The treatment meted out to the three successive Prime Ministers is illustrative of the influence and power wielded from Delhi, in the internal matters of the State, in spite of its unique constitutional facade… it is, therefore, hardly surprising that Sheikh Abdullah, now around seventy, is the undisputed leader in Kashmiri ranking, and the younger generation is eager for independence.”

Today, many decades later, Kashmir finds itself in a similar position.

As the Supreme Court of India hears pleas to challenge the Article 35-A, and 370, constitutional experts in Kashmir believe that the decision will not be binding to Jammu and Kashmir, as long as the assembly does not pass it.

The decision, when it comes, removes the law from the Indian constitution, not from the Jammu and Kashmir Constitution, where it remains. Even a mere presidential order will not do. The deal again requires local collaboration, and it comes full circle as Madhav meets more and more Kashmiri legislatures willing to bend over backwards.

With fissures in the PDP wide open, they must not just defect but do so while claiming the party to support the BJP in the endeavour. The anti-defection law has been trampled upon often, like everything else in Kashmir, and the power vacuum remains.

Why offence is the best defence

The issue of the State Subject Law has brought people across the political and regional divide together, saying in unison now that the article must not be tampered with.

The removal of Article 35-A of the Indian Constitution, Hereditary State Subject Law in the JK Constitution, people fear, can lead to Israeli style settlements in Kashmir. This, many believe, is being done to change the demography of the Muslim majority region, to change the outcome of a possible referendum, and to remove the last peg in declaring India a Hindu Rashtra.

Even the PDP, that slept on the matter and created a weak, if not incompetent defence, has sent its member Muzaffar Hussain Beigh to defend the act brought into the constitution of India by a presidential order.

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

Through following Presidential orders, 94 out of 97 entries in the Union List are extended to Jammu and Kashmir, and 260 out of 395 articles of the Indian Constitution are made applicable.

RSS backed think-tank called the Jammu & Kashmir Study Centre that first challenged Article 35-A in the Supreme Court, argues that the presidential order added, and not modified a law, and was not passed through the parliament, and is thus unconstitutional.

Indian Lawyer and constitutional expert, Abdul Gafoor Noorani, known popularly as A. G. Noorani, has written on the matter, and argued that the Article 35-A is beyond challenge.

“In India the lust for uniformity possesses communal-minded majoritarians. They look askance at Muslim Personal Law and they adopt double standards always,” he writes.

The legal luminary draws parallels with Article 371-A of the Indian Constitution, which says that land and resources belongs to Nagas and confers special rights to Nagaland.

“Will that amendment also be challenged as being violative of the basic structureof Indias Constitution? For that matter, the others on Nagaland and Mizoram too, to mention two. However, while they were all enacted under Art. 368 by Parliament in exercise of its amending power, Article 370 is part of the Constitution of India as it was enacted on 26 November 1949. And Article 35-A flows inexorably from it,” Noorani wrote in an article published in Srinagar based Greater Kashmir.

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

In the Valley, another top notch lawyer says that the Supreme Court of India cannot amend the constitution, like removing any act, that power lies with the parliament, but, in case an amendment is in contradiction to another law, the court does have the power to remove it. This is what the latest PIL filed in the courts say, that the Article 35-A contradicts the constitution, and denies the citizens of India the right to own property.

As per the inconsistency law, the Supreme Court can strike down a law only if there is a clear constitutional violation and not merely because of its falling into disuse or because the perception of society has changed regarding legitimacy of purpose and need of the law in questions. [Suresh Kumar Kaushal Vs the Naz Foundation].

While the efforts of the Rastriya Swamsevak Sangh (RSS) backed petitioners continue despite the fact that the court has rejected the PIL several times earlier, news of the members of the Jammu & Kashmir High Court Bar Association sending teams, to defend the article made it to the front pages in Kashmir.

ALSO READ: Meet comrade Sampat Prakash, Kashmir’s vintage campaigner of Article 35-A

Kashmir based advocate, Zaffar Shah, has argued that Article 35-A has been added by Constitutional Application Order 1954 and if it is challenged then all Orders passed after that shall be invalid too.

However, the SARFAESI Act passed by the Indian parliament in 2002, which allows banks to auction the properties of defaulters to anyone, was not passed in Kashmir because the property could not be sold to anyone, but only to a subject of the state, but was still surreptitiously implemented during PDP’s Haseeb Drabu’s tenure as Finance Minister.

This, many say, opened a window, a leak of sorts, in the dam that holds the flood of settlements from India into Kashmir, that is Article 35-A.

While the High Court of Jammu and Kashmir judgment had said otherwise, the act was enforced, and while delivering its verdict, the Supreme Court of India rejected the JK High Court’s view that the state’s Constitution was equal to the Constitution of India and said that the dual sovereignties cannot exist.

The Constitution and Court of India, in the its own opinion, reigned supreme over the Constitution and Court of Kashmir.

But, if the presidential order of Article 35-A can be challenged, a Kashmir based constitutional expert tells me, in his posh office, in uptown Srinagar, so can the other presidential orders that have been brought into effect by schemes and coups.

“By this logic, even the order that has changed the nomenclature of the Prime Minster to the Chief Minister can be challenged though PILs in all courts across India and Jammu and Kashmir. So can be the order that changed the Sadr-e-Riyasat to Governor, and the one that superseded the Election Commission of Kashmir with election commission of India, and many, many more.”

Although the PILs are bound to be rejected, like the PIL on Article 35-A should have been, the expert says, that offence is the best defence and the lawyers must not just defend, but launch an all out offensive.

The RSS, they say, didn’t stop the PILs because the court wouldn’t hear them, so mustn’t the defenders of the disputed status of Kashmir.

 

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

 

Like this story? Producing quality journalism costs. Make a Donation & help keep our work going.


Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

To Top