An Article of bad faith?

Arun Joshi

THERE  is no doubt that there are  genuine fears in Kashmir over scrapping of Article 35-A of the Constitution of India that debars Indian citizens from buying immovable property and settling in the state.  Legally, the right to settle permanently in Kashmir is reserved for the natives having  the  permanent resident certificate — a document that is based on the history of the family in the state. An  attempt to do away with this critically  important  constitutional provision through legal means  is taken as an ultimate step to annihilate the Kashmiri Muslim majority character of the state.  

The case is with the Supreme  Court where the  Centre has not been able  to come out with  a defence of this provision that has  great emotional, political and demographic value for the Valley. They  fear a major loss if this Article is rendered as unconstitutional. An NGO has taken the plea that  it was effected through a Presidential order in 1954 without Parliamentary approval.  Their fear is that Indian Hindus would swamp their neighbourhood and they would lose ownership of their land and identity. This  fear has been fed with meticulous planning in which the Peoples Democratic Party of Mehbooba Mufti and Peoples's Conference  of Sajjad Gani Lone  are a party,  alongwith the opposition National Conference and separatists  to warn the Indian nation against any "misadventure" of tampering with the special status of the state. Politically, Kashmiris are being told that their political ethos, rooted in the special status of the state as guaranteed in the Article 370,  is under grave threat. The other part is more toxic. The Hindus would march in hordes into Kashmir and the  religious identity of the local Muslims  would be undermined. This legal contest is  being propagated as a pernicious design to effect Israeli-type settlements in the  Valley. The fear looks real  when the overall mood and atmosphere in the country is reckoned with. Another view holds that Kashmir's  emotional and political integration has  not been possible because of the Article  370.  This thesis erroneously envisages that it is  a must to bring Kashmir under the Indian umbrella. This is a fallacy. These proponents  are trying to peddle  a partially true thesis to  soothe  the frayed emotions of the countrymen  sick of violence and killing of Indian soldiers in the Valley. It stirs emotions of  revenge. When countrymen are confronted with the constitutional reality that they cannot travel and settle in the  state, their  emotions for the integration of Kashmir  are exploited in a frenzied manner. Both these optics are  far removed from the reality in the Valley. Kashmir  is in trauma. There is worry about the Valley’s unique  Sufi culture getting  supplanted by radicalism. There is  a willingness to  adopt the ideology of ISIS and Al-Qaida. It is not  only proselytisers like Zakir Musa but also willingness on part of the youngsters to move on to that path.  ISIS flags  had started appearing seven years back but the then  government dismissed it as mere fun by youngsters addicted to social media. This line was echoed by one and all, including the PDP, the Congress and the separatists. Separatists like Geelani and Yasin Malik’s refrain was that it is the handiwork of Indian agencies. When something has to be defined as a subject of hatred, it is dubbed  “a design of the Indian intelligence agencies”. A close look at the situation reveals that militancy is becoming more lethal. Schools and colleges are shut. Businesses  are closed more often. The academic calendar has gone haywire. Two arguments are used often. One, they want to keep the state  purely Muslim majority. Secondly, if the “azadi” or freedom is not possible, greater autonomy  can serve the limited purpose in retaining their identity. Kashmiri Pandits  are natives of the Valley but have not been restored to their homes in the Valley  for the past over 27 years. And, when there was a proposal to lodge them in transit camps,  Kashmiri Muslim parties  raised  hue and cry. The state said  nothing doing when a proposal for lodging soldiers from the state in a particular enclave was mooted. When natives are not being settled in the Valley while 35-A is there on the  statute book , how would this  atmosphere be conducive for Indians to come and settle there? It's all politics  to escalate tensions between Delhi and Srinagar. 

What does the contentious Article entail? 

The Article 35-A was proclaimed by President Rajendra Prasad  on  May 14, 1954 on the advice of the Jawaharlal Nehru government  to empower the  Jammu and Kashmir legislature to define the permanent residents of the state and their entitlements. The Article was drawn from the Delhi Agreement of 1952 and Article 370 that confers special status to the state. The permanent resident is a citizen of the state as of May 14, 1954  and their descendants. This was the provision provided by Dogra rulers to prevent "non-permanent residents" of Jammu and Kashmir from settling in the state on a permanent basis. The permanent resident is entitled to 

• Employment under the state government;
• Acquisition of immovable property in the state;
• Settlement in the state; or
• Right to scholarships and such other forms of aid as the state government may provide.

Controversy: The Article was issued via Presidential Order without debate and discussion in the Parliament, thus it doesn't carry the legal weight that other presidential orders issued after Parliament approval have. An NGO, Jammu Kashmir Study Centre, has moved  the Supreme Court challenging validity of the order with a plea that it should be scrapped. Kashmir-centric parties say doing away with  Article 35- A, with its roots in Article 370, would snatch the vestige of autonomy that the state enjoys in the Indian Union. They fear scrapping of this constitutional provision would stir a revolt and no one will even shoulder the Tricolour in Kashmir. The RSS view is that the Tricolour would be held aloft when Article 370 is done away with.

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