By Tayab Banna
The challenge to the constitutional validity of article 35A has both legal and political aspects. However, the timing of the petition and the right wing background of the petitioner points to the broader ideological underpinnings behind it.
From the legal-constitutional point of view the contention is that 35A being an exception to the constitution should have been incorporated via a constitutional amendment instead of a presidential order. It is also claims that article 370 is intended to be a temporary provision of the constitution.
Article 35A had been promulgated in 1954 under the 370(1)(d) which empowers the President to make exceptions to the constitution in its application to Jammu and Kashmir. The constitutionality of the said provision has been upheld by the Supreme Court in the Puranlal Makhan Lal case. The current petition challenges 35A on the ground that it was not an exception to any article of constitution but a new Article altogether. On the face of it, this is a very weak base to build a case upon. Add to this the fact that the Indian constitution has many special features for stars other than Jammu and Kashmir too and the case looks weaker. However, it is the politics more than legal nitty gritty and even minutiae that will decide the outcome.
So what is the politics behind the petition?
The answer is very clear if we look at the background of these petitioners. It is an NGO led by right wing activists. The Sangh Parivar -the spectrum of right wing Hindutva is a wide and diverse enterprise- has a presence in every aspect of the social milieu in India from the media, business, think tanks, sports, gau raksha samitis, paramilitary organizations, publishing houses, bar associations, civil services coaching institutes, trade unions, student unions, publishing houses and political parties. The BJP, it’s political representative, is the most visible but in reality it is just a tip of the ice berg.
Most of this presence is in the form of ostensibly independent organizations. This independence is for tactical reasons mainly to obscure the background, to smoothen rough ideological edges, to increase the room for maneuver, to appeal to a wider cross section of the society and so on. In reality, most of these organizations are organically linked (independence being only in name). These organizations are led and manned by RSS cadre which acts as a feeding centre for them.
There are a few issues which could be said to be the core themes of the Hindutva movement in India. These include cultural nationalism, Ram Mandir, Uniform Civil Code and Article 370. The Parivar has seen the special status as an affront to India since the time of independence. It’s post independence hero Shyama Prasad Mukherjee lost his life in the “one country one constitution” agitation in Jammu. Whatever BJP might have agreed under the Agenda of Alliance, did not bind its parent or sister organizations from pursuing agendas so close to their heart.
The alliance with PDP was in any case a stratagem to pull it into a suffocating bear’s embrace. The RSS is a very patient organization. It is willing to wait, to adapt, to metamorphose and then to strike at the right moment. BJP’s purported moderation of RSS agenda is a ruse to make it palpable to a wider audience.
In some quarters, it is believed that the Indian state knows that tampering with the demography in Jammu and Kashmir is highly infeasible at the moment. The security situation, on the ground, and the spectre of war with neighbours are held to be reasons for the same. What then explains it’s enabling of the questioning of the provisions that safeguard demography? The answer lies in the interest of the state to change the narrative from azadi to autonomy in Jammu and Kashmir. This hypothesis may or may not be right.
What is true however is that the agenda of the Parivar towards the Kashmir issue is clear. It’s permanent solution to Kashmir problem is increased militarization, zero tolerance for separatism, forceful assimilation and possibly demographic change. However, it is in no hurry and is willing to bide it’s time. In the meanwhile, it is making good use of the disturbance in the state to supplement its polarization agenda in the mainland. Brash and rude panelists of hazy backgrounds from Kashmir have been hired to fight shouting matches with right wing Indian panelists. This serves the right wing agenda by reinforcing the Muslim and Kashmiri stereotypes that it has done so much to embed in the social milieu of India.
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