'J&K may lose its special status'

'J&K may lose its special status'

Be it GST, Statistical Bill or Article 35A, you can see a clear onslaught on the state’s autonomy. There are clear attempts to reduce or undermine the state’s special status

On August 21, 2015, the Supreme Court sent a notice to the Centre and J&K on the state’s special status. In Kashmir, the notice, issued in response to a writ petition filed by the NGO We The Citizens, seeking removal of Article 35A from India’s constitution, was read as a judicial onslaught on J&K’s special status.

The article grants special privileges to the state’s permanent residents in matters of employment, acquisition of immovable property, settlement, scholarships – essentially safeguarding the State Subject laws notified by the Dogra rulers in 1927 and 1932. It was enforced in J&K through a Presidential Order in 1954.

The NGO contended that the addition of Article 35A to the Constitution through a Presidential Order was invalid: “The Constitution can be amended only by the Parliament as per procedure clearly laid out in Article 368.”

The petition essentially replicated the contentions of three affidavits filed in the apex court in 1956, 1961 and 1970. The court had dismissed all three, while upholding the President’s power to pass constitutional orders.

But unlike in past, the Indian government has refused to take a definite position on the matter, leaving the outcome of the case wide open.

The NGO, We The Citizens, enjoys “proximity” to the RSS, the mother ship of Hindutva organisations, including the ruling BJP, which seeks to settle the Kashmir dispute by altering the state’s demography. Article 35A, which bars any settlement of Indians in J&K, is the main obstacle in this project.

Still, the ongoing legal battle has caused deep anguish in J&K, with the civil society and the pro-freedom leadership calling for a People’s Movement to defend Article 35A. In fact, even Chief Minister Mehbooba Mufti has warned New Delhi of serious consequences if there is any judicial fiddling with Article 35A. In the court, her government has assailed the NGO’s locus, arguing that the “petitioner is a busybody, a meddlesome interloper who has filed the instant petition seeking publicity”.

Seeking dismissal of the NGO’s petition, the government has stressed that J&K had not acceded to either India or Pakistan. It was only owing to “tribal invasions that the Maharaja signed the instrument of accession with certain conditions that were accepted by Governor General of India”. It has pointed out that the apex court’s judgements in Puranlal Lakhanpal v President of India (1962) and Sampat Prakash v State of Jammu and Kashmir (1969) endorse its views.

More than anything, though, it’s the Narendra Modi regime’s unclear stand that has people worried. “A conscious decision has been taken by the Government of India not to file any counter affidavit in the case because the issues which are raised for adjudication are pure questions of law,” Attorney General KK Venugopal said.

By not filing a counter affidavit, the Modi regime has apparently toed the petitioner’s line. This, the National Conference has argued, is a “dangerous” approach that could cause “irreparable damage” to J&K’s special status. The opposition party has alleged that after actively collaborating with New Delhi to extend the Goods and Services Tax to the state, “the PDP seems to have teamed up with the powers that be yet again to facilitate an assault on Article 35A”.

Amid the politicking, legal experts have advised the state government to be extra-cautious in handling the case. The worry stems partly from how the Supreme Court has, of late, questioned and overturned the rulings of the J&K High Court. On December 17, 2016, for example, it rejected the high court’s view that the J&K Constitution was equal to the Constitution of India and has “sovereignty” and “sovereign powers”. Many fear that the Supreme Court may treat Article 35A similarly.

But is there a realistic chance of the Supreme Court striking down Article 35? And if it does, what happens? For answers, Kashmir Ink caught up with the eminent lawyer Zafar Shah at his busy chamber in Hyderpora, Srinagar. Article 35A is the basic tenet of the constitutional relationship between New Delhi and Srinagar, Shah said, and entertaining any petitions on it is simply a betrayal of the peoples’ faith in constitutional democracy.

 

Excerpts:

 

First Goods and Services Tax (GST), then the Statistical Bill and now Article 35A. How do you see this sudden and systematic attack on Kashmir’s special status?

J&K’s special status cannot be tinkered with politically. The BJP has always been against it, but after coming to power and realising that amending the constitution to change this position isn’t possible, they are trying to achieve their objective through the judicial process.

Be it GST, Statistical Bill or Article 35A, you can see a clear onslaught on the state’s autonomy. There are clear attempts to reduce or undermine the state’s special status.

 

What can we read into the Supreme Court’s notice to state and central governments in a fresh challenge to Article 35A by a little known NGO?

Everyone has the right to approach the Supreme Court with a petition. And the subsequent issuing of a notice is a matter of judicial practice. It does not mean that the Supreme Court has agreed to what the petitioner has said. After getting the counter-petition, the court will take a view. If it finds that the petition repeats points that have already been adjudicated by the court, then I am confident it will dismiss the petition.

But if the court is of the opinion that some other dimensions of the controversy need to be examined, then it might proceed further.

 

Despite getting the notice, the Modi regime, rather than file an affidavit in the court, has sought a “larger debate” on this “very sensitive” issue. Does it mean they want to weaken J&K’s special status as they have long promised their voters?

 

See, the stand taken by the Attorney General before the Supreme Court has made New Delhi’s position uncertain. Normally, filing an affidavit means clearing one’s position on a legal matter. By not filing the affidavit, the government has kept its options open and made the issue uncertain. It also means they have committed themselves to a position that Article 35A should or shouldn’t remain. We will have to wait and see which way the cat jumps.

The J&K government has filed a counter-petition in the court, but the National Conference is saying that until the central government decides to defend Article 35A, the state cannot do much because Article 35A is part of the Constitution of India.

The state has filed a short counter-petition informing the court that the issue raised by the petitioners has already been decided by the court in the past. The state has stated that, should the need arise, they will file a detailed affidavit.

Now, here is a paradox: the J&K government is composed of two ideologically opposite parties but such is not the case with the central government. Even if they call themselves the NDA, the dominant party is the BJP. So, it’s the BJP at the Centre which hasn’t filed the affidavit. Being their coalition partner, the PDP may be extra-cautious in asking the BJP why their central government didn’t take a stand.

Previously, whenever such petitions were filed, the central government took a clear-cut stand. But this time, the response of the central government has made the position ambiguous. Therefore, legally, the National Conference is right when it says that the position of the central government is important in such a judicial matter.

 

What would this judicial tinkering with Article 35A entail for Jammu and Kashmir?

Article 35 is not part of the Constitution of India. It has been applied by the President under Article 370, in recognition of J&K’s special status and position.

There are two reasons for J&K’s special position. One is the limited nature of the state’s accession to the Indian union. Two, the international dimension of the problem. Recognising this, Article 35A provides for protecting the state’s laws privileging its permanent residents in employment, acquisition of immobile property and scholarships.

 

Some people feel eroding the scope of Article 35A will leave nothing of J&K’s constitutionally-guaranteed special status.

People saying so aren’t wrong. If this article is abolished or declared invalid, it would mean that the state laws related to permanent residency can no longer exist. It would also mean that non-permanent residents can acquire property here and employment opportunities available to people of Jammu and Kashmir will also be available to Indian citizens. It will have a devastating effect on the present status of Jammu and Kashmir.

 

But can they really do it?

See, the people who have approached the court have raised a technical issue. Their case is that Article 35 is not part of the constitution. But at the same time, the President of India has made a special provision for the people of Jammu and Kashmir. So, their contention is whether the president can make or create a new provision for J&K that is not in the constitution. Now, much depends upon the Modi government and what stand it will take.

 

But isn’t the Modi government’s position already favouring the petitioners?

It’s still unclear how the BJP is supporting the petitioners. What is also unclear is whether the petitioners are bona fide people or sponsored litigators. But giving its timing, soon after the BJP came to power in Centre, it appears to be a sponsored writ petition aimed at achieving a political motive. So, yes, the political posturing clearly makes the Modi regime a party to it.

 

That means the state needs to worry?

Yes, the state needs to worry. As I said there is a paradox here. While the state government, in which the BJP is a partner, has filed a counter affidavit in the Supreme Court against the NGO’s petition, the BJP-ruled Centre has decided against it. Therefore, the state government needs to be cautious.

 

Do you see Article 35A going the GST way, and the Statistical Bill?

Given the nature of such things, the Supreme Court should dismiss the petition. But we must realise that judicial decisions are unpredictable. The state government must work hard on its arguments.

The other stakeholders who want to safeguard the state’s special status need to make representations before the Supreme Court. The state can only present arguments. But whether or not the special status remains or not is, to a large extent, in the hands of the central government.

(First published in the latest issue of GK weekly Kashmir Ink)