Constitutional experts remind it is Article 35A, not Article 370, that bars outsiders from acquiring land in J&K
Srinagar: After the financial integration of Jammu and Kashmir with India through the Goods and Services Tax (GST), a political campaign is underfoot to abrogate Article 35A of the Indian Constitution, which grants the JK Legislative Assembly powers to determine permanent residents of the state.
Lawyers and constitutional experts in Kashmir say that if Article 35A goes, the little that remains of JK’s special status and autonomy within the Indian Constitution will also be finished. How serious this matter is for the state can be seen in the state government’s hiring of eminent constitutional lawyer Fali Nariman to plead its case in the Supreme Court, where a petition has been filed for abrogation of Article 35A.
“We have hired the best constitutional lawyer of the country, Fali Nariman, to fight the case. We have taken this case very seriously,” said state Law Secretary Abdul Majeed. “We have represented the state in previous hearings. The next hearing is in the upcoming month of September. We have utilised all resources to defend the provision (Article 35A).”
Constitutional lawyer Tasaduq Hussain told Kashmir Reader that the People’s Democratic Party (PDP)-led government had allowed the state’s financial integration with India by passing the GST bill. He said the government is now further paving the way for political and administrative integration of the state with the Indian union.
“The final outcome of this process will only depend on the ruling of the Supreme Court. They have to decide whether they will abrogate Article 35A or not,” Hussain said. “However, it has become evident that the RSS and BJP are taking legal means to abrogate the Article. If it is removed, they will say they were not responsible as it was done through the court’s ruling. The abrogation of Article 35A will lead to the state’s complete merger with the Indian union. You can say it will be the last nail in the coffin of Article 370.”
Hussain said that Article 370 had been reduced to an “empty shell” by successive state governments that gave concurrence to central laws in Kashmir. “There is nothing left in Article 370. The centre has now more powers than just control over foreign affairs, communications and currency, as enshrined in Article 370,” he said.
Hussain said that Article 35A gave Sheikh Abdullah, the first prime minister of Kashmir after 1947, guarantees in 1954 that land ownership would only be permitted to subjects of the state, and it would be the state that would define state subjects and only state subjects would be employed in government services in J&K.
“There were a few Indian Administrative Services (IAS) posts for outsiders under a special cadre. For the rest, employment had to be from within the state,” Hussain said. “If Article 35A is abrogated, it will change this scenario. Anybody from India will be able to buy land in Kashmir. And anybody from India could be employed in government services in Kashmir. The BJP and RSS are working towards the complete integration of the state with India.”
A petition was recently filed in the Supreme Court by an RSS backed NGO claiming that Article 35A violated the right to equality enshrined under Article 14 of the Indian Constitution.
The JK government filed a counter-affidavit seeking the dismissal of the 2014 petition, but the Government of India did not. Then Attorney General KK Venugopal told the court that the government of India “wanted a larger debate on it”. He also asked that the matter be referred to a larger bench, given the constitutional issues in the case, following which the apex court referred the matter to a three-judge bench and reportedly set a six-week deadline for its disposal.
Political analyst and Professor of Law at Kashmir Central University, Dr Sheikh Showket Hussain, said that “we often mistakenly believe that outsiders can’t purchase land here due to Article 370. It is actually Article 35A that bars non-state subjects from purchasing land and getting employment here.”
“It seems the idea of the petitioners is to stealthily abrogate 35A though a court order, as it would not then create a hue and cry. Article 19 of the Indian Constitution guarantees freedom of movement and residence throughout India for its citizens. The petitioner had been planning to invoke this Article in the Supreme Court so as to repeal Article 35A,” Prof Hussain said.
He said that if Article 35A was abrogated, it would redefine the relation between India and Kashmir. “The relation would automatically revert to the pre-1953 position,” he said.
“The problem is that the state government is taking dictation from the centre and is implementing all its laws, like they recently did in the case of the GST. Five IAS officers are taking policy decisions and the ministers seem to be helpless,” he added.
On August 8, Opposition parties in Kashmir met under the leadership of National Conference leader and former chief minister Farooq Abdullah and expressed concern over the potential repeal of Article 35A. The parties decided to form a ‘United Front’ to create awareness among the people of Jammu, Kashmir and Ladakh about the fallout of the removal of the Article.
PDP general secretary Nizamuddin Bhat told Kashmir Reader that instructions to not speak on the issue have come from party president and chief minister Mehbooba Mufti.
“Our stand has been made clear by the chief minister. She has given her statement on the issue. That is our version,” Bhat said.
Mehbooba Mufti has warned against repealing Article 35A, saying it will weaken the cause of those who have fought to keep Jammu and Kashmir integrated with India.
“I will not hesitate in saying that nobody will carry the national flag in Kashmir [if the Article is scrapped]. Let me make this very clear,” she had said.
In response to this statement, her party’s ally, the BJP, said that Article 35A “was not a sacred cow that cannot be touched”.
Commenting on the Opposition’s decision to form a ‘United Front’ against moves to repeal Article 35A, Nizamuddin Bhat said that instead of creating a hue and cry, they should go to the Supreme Court and fight the case along with the state government.