Article 35A

Jammu and Kashmir is the only state that enjoys a little bit of autonomy in certain matters in a parliamentary system that is out and out unitary. The saffronites seem to be in a hurry to destroy whatever special status Kashmir still has because of a bitter legacy left by history. Right now the bone of contention is Article 35A. This Article is a provision incorporated in the Indian Constitution awarding J&K legislature a carte blanche to decide who are the ‘permanent residents’ of the state and grant them special right and privileges in state-run public sector jobs, acquisition of property etc. For all practical purposes it is a kind of special reservation mechanism to allow the Kashmiris to get naturalised, slowly but steadily, with what they call mainstream political culture. Not that the Sultans of Delhi willingly granted this special status to Kashmir. Having failed to have Kashmir completely integrated with Indian Union under circumstances beyond their control the Special Status device was enacted to pacify the Kashmiris. That Special Status has a historical background cannot be denied even if the saffronites find no logic behind it.

Article 35A was incorporated into the Indian Constitution in 1954 by an order of President Rajendra Prasad on the advice of the Jawaharlal Nehru cabinet. In reality the 1954 order followed the 1952 Delhi agreement entered into between Nehru and Sheikh Abdullah extending Indian citizenship to the ‘state subjects’ of Jammu and Kashmir. No doubt it was a complex manoeuvring to facilitate the process of integration of Kashmir with India. That the mechanism has failed to achieve the desired results is a fact of life. But that doesn’t mean it has outlived its utility. The saffronites being a part of the J&K government cannot resort to anti-Article 35A agitation overtly. So they have resorted to legal activism without involving their party directly. Now Article 35A is being challenged in the apex court. Surprisingly, it is being challenged at a time when interlocutor Dinesh Mishra, appointed by the Modi government, to put the dialogue initiative back on track by involving all the stake-holders, including separatists is in Srinagar. The hearing over Article 35A in the Supreme Court has been postponed by eight weeks against the Centre’s demand of six months in view of the on-going soft approach started by the Mishra mission. If the mission succeeds in creating an atmosphere conducive to negotiation in a peaceful manner, it will be an achievement. But the murky business of electoral politics as Gujarat, prime minister Modi’s home state, is going to polls very shortly, has complicated the situation to such an extent that the Mission’s exercise may be derailed even before it begins proper functioning.

Congress leader P Chidambaram’s statement that J&K should be given more autonomy beyond Article 35A has added fuel to fire. And Modi lost no time to attack the Congress party for overtly extending their support to calls for ‘Kashmir’s independence’. But the Chidambarams didn’t do anything to give more powers to J&K when they were in power in Delhi. The hard fact is that the autonomy clause as enshrined in Article 35A, has already been diluted over the years and Chidambaram’s party was no less responsible for it. At least on this issue, all Kashmiri political entities, both separatists and non-separatists, are united. And Farooq Abdullah’s National Conference that ruled the state several decades many a time in league with the Congress while carrying the legacy of Sheikh Abdullah, now the main opposition in J&K state assembly, passed a resolution, demanding restoration of autonomy to J&K in its ‘‘original and pristine form’’. In his view it is the only viable way to win the hearts of the people of Kashmir.

The saffron camp’s calculation is simple—scrapping of Article 35A means more violence and more violence means more security forces. J&K is already under army rule and induction of some more platoons in the restive valley can at worse inflate the roster of martyrs. The limits of autonomy vary from place to place but it is an international phenomenon. The ruling elites tolerate it till it doesn’t reach the point of separation. What is happening in Spain is a case in point.

The ruling parties and opposition engaged in Indian parliamentary politics are all against the true spirit of federalism. In other words they are essentially against granting autonomy even to ethnic minorities and tribals. Once upon a time the political left of India used to agitate against the Centre’s colonial approach to states, particularly eastern states. They rightly dubbed state legislatures as bigger municipalities with little power to develop on their own. These days the centre interferes blantantly in the state’s ‘law and order’ which is after all a state subject. Centralisation of powers in Delhi has been going on since the days of Nehru, mocking at constitutional federalism. The Congress party did it in the past and it is the turn of the Bharatiya Janata Party (BJP) to describe any attempt to raise demand for autonomy as anti-national.

For one thing the BJP is running the country in Nazi style and they are doing it rather nakedly, without showing any respect to the aspirations of the people. Left parties as also non-left regional parties have been mellowed over the years, saying ‘goodbye’ to autonomy power to decide their destination. All are busy to maintain the status quo at any cost. Autonomy for states, rather true federalism, may be an area of sustained agitation for the parties that are in search of new slogans to cope with the changing political scenario. The systematic encroachment on state subjects by the centre sometimes by the back door in a manipulative way, must be challenged. Legal activism is no answer to authoritarian tendencies developing very fast in absence of federal polity. The heat generated over Article 35A may die down but the question of autonomy remains—there is no way to escape it. Without democracy Kashmiris will have no right to dissent—and without right to dissent there is no democracy.

Vol. 50, No.19, Nov 12 - 18, 2017