Article 35-A in cold storage
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Article 35-A in cold storage

Mehbooba Mufti in an exclusive interview with Greater Kashmir (published: 18.

Mehbooba Mufti in an exclusive interview with Greater Kashmir (published: 18.09.2018) quoted PM Modi assurance on Article 35-A. The assurance relates to a strange claim that Article 35-A would go to a larger constitutional bench and then be put to cold storage.

Mehbooba Mufti's take on PM's assurance has serious legal repercussions. It amounts to saying that the federal government in Delhi either knows the mind of judiciary of the highest court in the land or is capable of influencing decisions, whatever the manner of doing so. Either way, it could be constructed as serious miscarriage of justice. Whatever the merits and demerits of Ms. Mufti's assertion, questions remain on state government's legal handling of Article 35-A in Supreme Court, in the face of federal government's evasive attitude. To say the least, defence of Mehbooba Mufti led government was inadequate, as challenges mounted.  

The fact stands that various challenges to Article 35-A were motivated by political forces inimical to constitutional safeguards of J&K State. RSS chief Mohan Bhagwat's assertion that articles 370 and 35-A are not acceptable explains the queer phenomenon. The challenges to Article 35-A started coming up, as RSS inspired cultural nationalists assumed power. Arun Jaitley had sounded the bugle, as early as 2013 by calling the said article an infringement of rights of Indian citizens. He did talk of challenges to it, wondering why it has been so late in coming. The challenges did come, several in fact from frontline formations of right wing extremists. While the federal government in Delhi was totally evasive in responding to the challenges, the defence of state government lacked muscle, as several hearings went by in the Apex Court without any progress. The dichotomous stand of the BJP led Delhi regime and the J&K state government cast a shadow on the case. 

The evasive attitude of the federal government should have been taken head on by PDP running a coalition government with BJP. PDP should have taken on BJP on the assurances in the much propagated, 'Agenda of Alliance (AoA)'. The assurances were founded on the assertion that vis-à-vis constitutional safeguards status quo would be maintained. Article 35-A forms a vital constitutional safeguard, along with article 370. It was evident right from the initial Supreme Court hearings that BJP does not want to keep its word, and is in fact backtracking on its assurances. Several statements of BJP leaders could be quoted to support the contention. And, RSS—the parent organization of the Sangh Parivar was and remains explicitly opposed to any constitutional safeguards for the Muslim majority state. In the recent Delhi meet of RSS, it was clearly stated by Mohan Bhagwat that anyone living within the Union of India is basically a Hindu, irrespective of his religious denomination. In such a train of thought, how could a Muslim majority state expect constitutional safeguards? The fact that the Muslim majority J&K state stays within the Union of India on a temporary, conditional accession does not weigh with RSS, nor does the fact that J&K state acceded, but did not merge with Union of India. The train of RSS thought carries to all the constituents of Sangh Parivar, and BJP is no exception.    

BJP led federal government acted true to its RSS colours by being evasive on Article 35-A in Supreme Court. The evasion was meant to convey to its core Hindutva constituency that BJP would not be averse to challenges posed to Article 35-A, and Supreme Court taking a note of these challenges. In a normal run of events, the legal representatives of federal government in tandem with J&K government's legal representatives should have asked the Apex Court to dismiss the petitions challenging Article 35-A. There were enough legal reasons to take this course. In 1955 Lakhanpal case, as well in the 1968 Sampat Prakash case, a five member Supreme Court Bench had taken a clear view on constitutional safeguards applicable to state of Jammu and Kashmir. In both the instances constitutional safeguards were challenged and summarily dismissed by Supreme Court. In the face of these verdicts, there should have been no ambiguity, yet the federal government took a weird view, taking cover of the matter being sensitive, requiring a larger debate.

BJP strategy remains multi-pronged. One, to keep the matter hanging by calling Article 35-A a sensitive issue, requiring a larger debate. Two, BJP led federal government wants to assess the Kashmir scene vis-à-vis repercussion of constitutional review. Apart from framing Article 35-A as sensitive, in one of the hearings, it was pleaded that an interlocutor was interacting in Kashmir. Three, BJP had to assess the outfall on its running a coalition with PDP, a coalition contradictory in extremes, thus non-functioning.   Mehbooba Mufti's assertion that PM Modi told her that Article 35-A would go to constitutional bench, and thence in cold storage should be weighed in the perspective of a running coalition. It could have been passed to keep her in good humour, as long as she was needed.  BJP kept the coalition running, as long as it suited their overall strategy vis-à-vis J&K state. The non-functioning coalition was adversely affecting BJP's core constituency within the state and beyond it. The decision to try a new dispensation was taken, which translated to governor's rule. It is operative now, with several question marks? The strategy of evasion continued during gubernatorial rule.  In the last Supreme Court hearing conducted with the new power dispensation in place, the plea taken was the conduct of local body and panchayat elections, and the possible implication on law and order. It would be interesting to see how long the strategy works?

Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival]

iqbal.javid46@gmail.com  

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