Dated 2018-12-15
4
Oct
2017

35A: Sangh Parivar’s  Mission Kashmir

Is Sangh Parivar’s

K-agenda

Shaping Up?

While Kashmir’s resistance leadership is too preoccupied with how to deal with the NIA onslaught and NC and PDP vying for their survival and restoration of whatever little image they had among the masses, the family of the Hindu nationalist organisations is insidiously treading on the path to integrate J&K with the Union of India. Sangh Parivar’s commitment to the abrogation of Article 35A is unflinching, reveals Bilal Handoo.

Some fifteen years after the fall of Dhaka, a mini-Bangladesh threatened to emerge from Kashmir’s Budgam district. Among those who sensed a big scoop in its wake was a scribe from Srinagar, where the war of attrition against the Indian state was covertly shaping up. When MK Bangroo, PTI’s Srinagar correspondent, began his fact-finding, he discovered how some men were trading Bangladeshi teen brides in Kashmir. Some quarters set off the alarm bells, seeing the trend as something that could alter the demography of the place. Somehow, the uneasy calm prevailed.

Three years prior to that, an outright war of words had threatened to revive the vintage tussle between Srinagar and New Delhi. The row erupted after a controversial Resettlement Bill was passed by both the houses of the state legislature in March 1982. Any person who was a state subject of J&K before 14 May, 1954 and had migrated to Pakistan after 1947 was to be recommended for resettlement as per the bill. It gave hopes of homecoming to the million migrant Kashmiris in Muzaffarabad.

But the NC-moved bill landed in the soup after BJP threatened to launch an agitation against this “mischievous piece of legislation.” The rightwing outfit (a vocal minority back then) argued that the bill had eroded the sole authority of the Centre to grant citizenship of India.

Then a fiery lawmaker, Abdul Gani Lone contested the BJP’s claim thus: “It is fully within the powers of the state legislature to pass this kind of a bill.” Amid raging row, the Sheikh-led NC defended the enactment citing the Delhi Agreement of 1952, wherein a specific provision was included for ensuring the rights of those Kashmiris who went to Pakistan in 1947.

“In any case,” Sheikh argued, “many of them (migrant Kashmiris) would not come back. Only 117 persons have returned since 1947. But we cannot deny them their right. They are free to return to their home any time.” But BJP whipped up the passions, arguing the Bill might encourage “anti-national infiltrators.” The right-winger went on to instigate the three lac non-Muslim refugees who migrated from West Pakistan in 1965 and 1971, and are presently occupying swaths of evacuees’ land in Jammu border areas.

As the controversy raged on, NC’s mouthpiece Navai Subha came up with fiery editorials, accusing BJP and allied outfits of fanning communal tempers in order to make inroads into the state. “The Sheikh wants to divert the public attention and play on the religious sentiments of the masses,” Presager, a Jammu-based rightwing periodical, hit back.

Some 20 Years Later, Srinagar had a visitor from Muzaffarabad. A homemaker Fareeda Ghani travelled as a passenger on the first trans-Line of Control bus on April 7, 2005. She crossed over to meet her cousins in Srinagar, after 56 years. Some foreign scribes covering the event referred to it as much intense historic reunion than “those televised scenes of Nazi concentration camps when survivors met their war-torn tribe.”

A daughter of one-time well-heeled barrister who migrated to Pakistan in 1947, Ghani visited her ancestral house and three other properties in Srinagar. Before returning to Pakistan, she filed an application at the Custodian General’s office, seeking a copy of the notification that had declared her parents’ real estate as evacuee’s property.

Ghani’s plea sparked off a political row. It was seen as an attempt to stake claim on her ancestral properties, which, otherwise, she had a right to claim under the Resettlement Act. But the Act was presented and paraded as legislation against the Hindu dominated Jammu region – where bulk of the evacuees’ properties is occupied by West Pakistani refugees. The man who created commotion over Ghani’s plea was the trenchant opponent of the Resettlement Act, the Panthers Party Supremo, Bhim Singh.

Then an ally of the Mufti Mohammad Sayeed-led PDP-Congress coalition government, Singh quickly moved to the Supreme Court and sought to restrain the state government from entertaining any application from “Pakistani nationals” for the restoration of their property in the state.

“Entertaining Pakistani nationals’ claim to property,” Singh pleaded, “could open a floodgate of demands and create a social disorder and communal unrest in the state.” The apex court swiftly issued notices to the Centre and the State. Even the apparently secular Congress assumed a communal stance over the row. “Any move to implement the Resettlement Act will be opposed tooth and nail,” said Congress’s Mangat Ram Sharma, the then Deputy CM.

Surrounded by arsonists, all the seasoned Sayeed could do was play a fireman.

While she tries to suggest all is well after her meeting with Modi, Mehbooba Mufti's assertion has no takers.| Photos: Aqeel

The political mist got cleared when the controversial PDP MP Muzaffar Hussain Baig termed the Agenda of Alliance as an unsigned document between PDP and BJP, which is “not admissible in the court.”

He assured the West Pakistani refugees “you aren’t going anywhere” and steered clear of speaking out against the Act that evokes strong passions in the Valley. “Since the Act is stayed,” his government said, “the state is legally bound not to entertain any such claim on the evacuees’ property.”

The entire controversy, Sayeed’s detractors would argue, only exposed the fears of the rightwing parties that if the Act saw the light of the day, the already dominant Muslim percentage in J&K would rise further. Perhaps, that’s why the case has been binned by Supreme Court without referring it to a larger bench. Back in the Valley, the PDP-led government was castigated for a clear ‘legal surrender’.

Before the chickens could come home to roost at the fag-end of 2013, the PDP government (in its second avatar as BJP’s partner in a tricky alliance) was seen caught in another legal surrender. But before the political Frankenstein could come of age, that year, on Dec 1, 2013, the BJP’s PM-elect came to Jammu to address his ‘Lalkar’ rally: “Does Omar’s sister who is married to an outsider have the same rights in Jammu and Kashmir?”

What otherwise was dismissed as the BJP’s traditional bashing of J&K’s special status in a run-up to the elections shortly turned out to be a real bargain. Four years later, a woman Charu Wali Khanna filed a petition in Supreme Court. By contesting the State Subject Law or Article 35A, she apparently underlined that Modi’s ‘Lalkar’ rally was more than just rhetoric.

Even the contents of her litigation bear strange resemblance to Modi’s speech. “Under the guise of Article 370 and Article 35A,” reads her petition, “the men and women are subjected to different treatments and discriminated on the basis of gender.”

Khanna is tracing her migrated family’s roots in Kashmir based on anecdotal evidences, myths and oral tradition. Walis, her ancestors, she claims, left the valley under the “brutal tyranny” of Afghan rule (1753-1819). In this backdrop, she seeks court’s intervention: “Am I not a Kashmiri?”

She challenges the Dogra legislation of 1927 that states that the wife or widow of a state subject would also be considered one so long as she does not leave the state for permanent residence outside the state. “The Instrument of Accession signed by Maharaja Hari Singh in 1947 is no different from those signed by 500 other rulers/kings,” she argues. “It’s unconditional, voluntary and absolute, wiping out all previous territorial allegiances.”

While this is read as an open onslaught on J&K’s Special Status, many in PDP hope that the post-Diwali verdict on Article 35A would meet the fate of the Resettlement Act: either stayed or referred to a larger bench.

But, as Mehbooba-led PDP-BJP coalition’s stand on Article 35A looks no different from the Mufti Sayeed-led PDP-Congress’s stand on Resettlement Act, the opposition NC decries “total surrender.” However, the state law minister Abdul Haq Khan is counting on the “best attorney-at-law” that his government has hired to put the state legal defence in SC, apart from putting up the “best” response. PDP’s ally BJP, however, has a different view on the entire row.

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Amid political hoo-ha, I meet BJP’s Jammu-based spokesperson Sunil Sethi inside Srinagar’s Ahdoos Hotel. A senior advocate, Sethi is in the town related to a case in J&K High Court. He wears a solemn look in the face of the controversy.

“You guys are leaving nothing unsaid by openly stating that it’s time for Article 35A to go,” I begin, as clattering of spoons and plates around us comes alive.

BJP, many believe, was never so close to achieving its ideological stand of integration of J&K with the Union of India as it’s today. For that, all decks seem to have been cleared. While the file of Article 35A is mysteriously missing from South Block, a larger sense prevails that BJP has mobilised spin doctors for changing discourse on the issue.

“Look, BJP has two stands on this whole issue,” says Sethi, clearing his throat. “One is ideological and other is based on the Agenda of Alliance. As per our ideological stand, we believe that the complete amalgamation of the state hasn’t taken place with the Union of India. This has hampered the development.”

So, this latest row is all about fulfilling the old dream of amalgamation, I ask.

“See, this Article 35A is an intrusion to some of the powers of the Indian Parliament. But for us, a very complex situation has risen after an NGO approached SC with a plea against Article 35A. But because of the Agenda of Alliance, we decided we won’t approach Supreme Court of India. Approaching SC with plea would mean violating the Agenda of Alliance.”

But doesn’t that speak of BJP’s double stand on the issue?  In the State, BJP is a party to the counter-petition, a stand quite contrary to the one taken at the Centre.

“Listen, we have presented the defence of the government and not the defence of the party in the State,” explains Sethi. “But let’s say tomorrow the PDP goes to Supreme Court with a definite stand on the issue, then BJP will also take its own stand.”

This, perhaps, explains why PDP has maintained a hush. Legal experts say the fear that their statements might be used against them in the court keeps the PDP leaders mum.

PDP’s silence, many say, speaks a lot more than it hides at a time when BJP is openly mouthing its position. And whatever little explanation comes from the party President and Chief Minister Mehbooba Mufti is vague.

She lately flew to Delhi, met Modi and proclaimed the PM’s “assurances” on the Agenda of Alliance, without making any direct reference to Article 35A, though trying to give an impression that all is well. Days later, she sent some PDP ministers to New Delhi to strengthen the defence on the State Subject Law.

Despite “assurances”, why she sent her ministers to New Delhi for the defence mechanism itself reflects the larger confusion in PDP’s stand. However, the political mist got cleared when the controversial PDP MP Muzaffar Hussain Baig termed the Agenda of Alliance as an unsigned document between PDP and BJP, which is “not admissible in the court.”

Baig let the cat out of the bag when he also suggested that the State hadn’t made ‘real and solid’ arguments in defence of Article 35A in Supreme Court.

At Ahdoos Hotel, the BJP spokesperson unwittingly reveals the fear factor gripping the PDP rank and file at the moment.

“What if tomorrow somebody approaches the Supreme Court with a litigation challenging the very idea of Self Rule and terms it unconstitutional and criminal? Then what would be PDP’s stand? It would be the question of their ideology, no?” A veiled threat that the Sangh Parivar can resort to that in case PDP doesn’t fall in line.

Sethi’s remark makes a complete sense in the contemporary India where courts are being regularly used to undo what many call diversity in unity. Tomorrow, as Sethi elucidates, even PDP’s political bible, the Self Rule, or for that matter, its detractor NC’s raison d’être, Autonomy, could face the court trial. This in addition to the rigorous media trial that has become the order of the day in India. At the heart of this legal blitz, many say, there’s a man, hailed by some and castigated by others: Amit Shah.

The present controversy took shape in August 2014 when BJP got its new boss in the form of Shah. No sooner did Shah (the man accused in fake encounters in Gujarat) take over when a little known NGO ‘We the Citizens’ — registered with Delhi on July 30, 2013 for engaging in the non-governmental activities — filed the petition through its president Sandeep Kulkarni. It called for the abolition of Art 35A.

Article 35A was incorporated in the Indian Constitution by the President through the Constitution (application to J&K) Order 1954. The Article 35A prohibits non-state subjects from acquiring land in the state, apply for government jobs and scholarships or participate in state and Panchayat elections.

After chairing the emergency meeting of the opposition leaders. Dr. Farooq Abdullah said that any fiddling with 35A would lead to a widespread agitation. Mehbooba Mufti called on the NC President the very next day.

“The Constitution can be amended only by the Parliament,” the NGO argued. “No process of amendment can alter it. Any action taken contrary to Article 368 shall be null and void ab-initio. In the present case the impugned action is arbitrary and violative of Article 14 of the Constitution.”

Kulkarni’s Sangh roots were no secret. But the man who served notice to Congress for “maligning” RSS, died in 2016, well before the political storm brewed in Srinagar and New Delhi alike.

That a petition doesn’t stand valid in case of the petitioner’s death seems to have no bearing on this case.

“If the petitioner dies,” says Jahangir Iqbal Ganie, J&K’s advocate general, “then the petition doesn’t survive in the eyes of the law.” But, that this litigation is still being entertained clearly underscores its sponsored nature.

Shah’s opponents have no doubt that the litigation is his brainchild. “Fighting to win has been the mantra of Shah,” brags BJP politician GVL Narasimha Rao. “Shah relishes taking on tough challenges. Like Prime Minister Narendra Modi, he does not rest and also refuses to let others rest.”

From a backroom strategist, Shah has today become the BJP’s second-most visible face after the Prime Minister. He has already achieved unparalleled success in the last three years and is on the way to reconstructing India. Amid unfolding tale of the 53-year old demagogue, the row over the Article 35A refuses to die down in Kashmir.

Inside Ahdoos, Sethi has something very significant to tell: “If somebody expects BJP to take a stand that Article 35A should remain, then honestly, we can’t take that stand. This article is really bad for the state according to us. We want it to go.”

Besides Charu Khanna and late Kulkarni, there is another person who has filed a petition against Article 35A in SC – Labha Ram Gandhi, President of West Pakistan Refugees Action Committee, and Kulkarni’s acquaintance.

Gandhi filed a petition in SC in 2015, arguing that Article 35A is ex-facie unconstitutional as “it seeks to sanctify deprivation of fundamental rights of a class of citizens of India residing in the State of J&K.” Since the partition of sub-continent, notably, the West Pakistan refugees have been seeking state subject rights in J&K.

Gandhi was in touch with Kulkarni since 2006 when the two ran into each other during a dharna in New Delhi. After years of contact, the duo addressed a presser at Jammu in October 2015 where they threatened to mobilise public opinion against the Article 35A and launch India-wide agitation for its abrogation. Like Kulkarni, Gandhi’s Sangh roots too are quite known. In 2014 parliament elections, Gandhi’s candidature was withdrawn last moment to pave way for Jugal Kishore Sharma.

In Jammu, where BJP and allied parties are almost confident about the abrogation of Article 35A, NC’s Davendra Rana is trying hard to make people aware how the law is more relevant for Jammu than Kashmir and Ladakh.

“There is a strong apprehension,” Rana said recently, “that its repeal will lead to the economic deprivation and erosion of the cultural identity of the Dogras.” In fact, this was the reason why Maharaja Hari Singh brought State Subject law on the plea of the Dogra Pratinidhi Sabha and Kashmiri Pandit Sabha in 1927, Rana said. The law shielded Dogras from domination by wealthy non-state subjects, mostly from neighbouring Punjab for the past 90 years, he said, and hugely helped in preserving the identity and interests of the Dogras.

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But in the highly polarised province, NC’s Rana doesn’t have many takers. Though, many in his camp try to remind New Delhi of the ex-PM PV Narshimha Rao’s assurances on safeguarding the special status of J&K, a year before he wanted to reinstall ‘democracy’ in the state.

For any proposal made by the State government, Rao said on Nov 4, 1995, to change any central law made after 1953 on the matters in the Concurrent List, the grant of assent to the Bill will be sympathetically considered. “If the state legislature amends the state constitution to provide for the title Wazir-e- Azam and Sadar-e-Riyasat,” he said, “there would be no objection.”

But Modi, as people know by now, is no Rao.

After not taking a direct stand on Article 35A in SC, the Modi government is encouraging its proxies that include many Sangh-affiliated bodies and media houses to hold regular discussions on the issue.

In one of the discussions held on Eid day, Sep 3, in Delhi, former Governor Jagmohan—viewed as a staunch anti-Muslim politician who is accused of watching over many massacres in Kashmir—surfaced to advocate scrapping of the Article 35A: “This law must go.”

Jagmohan was invited as the chief guest at a documentary screening function in New Delhi by the Sangh-affiliated think-tank, Jammu Kashmir Study Centre (JKSC). The body claims that the entire debate on Article 35A – its existence and role vis-a-vis Jammu and Kashmir – was established by the documentation and research done by it since its inception six years ago.

No wonder JKSC President Padamshri Jawaharlal Kaul termed the Article 35A “dangerous for the nation.” Even the director of the documentary (that “unravels the visceral realities” beyond politicization and opinions on Article 35A) Kazakhya Narayan Singh termed it his cause and contribution to the “victims” of Article 35A.

Meanwhile, inside Ahdoos, the discussion takes another turn as the footfall mounts.

“So, is the idea behind all this to achieve your political motive of changing demography to settle the Kashmir issue?” I ask.

'If somebody expects BJP to take a stand that Article 35A should remain, then honestly, we can't take that stand. This article is really bad for the state according to us. we want it to go'----Sunil Seth, Chief Spokesperson, BJP (J&K)

“We don’t want any demographic changes in Kashmir. We are only lifting the barrier to allow new investments in the state. Without investments, you can’t have progress in this world,” explains Sethi.

If it’s about investment and progress only, then what’s the need of fiddling with the state subject law?

“Let me first address the hysteria being created around Article 35A. You see in Himachal Pradesh, there’s no such law and yet no non-Himachali can purchase agricultural land there, as per a revenue law. For non-agricultural land also, you have to take permission of the government. Similar situation can exist in Jammu and Kashmir where almost 40% of land is under forests and 50% under agriculture. Both of these lands can’t be given to anyone. Around 7% of the land is used for residential and industrial use. So, only 3% will be available for the investment and new infrastructure.”

But the fear is, I retort, that even that “3%” can lead to the formation of settlements.

“To address such fears, we can have provisions. Let us make guidelines. The state government can impose such guidelines in the form of Service Laws to protect jobs. Nobody is taking your jobs. In fact, by bringing more money from outside, you will be creating jobs.”

But, that can otherwise also be done by leasing out the land.

“See, lease system has been in vogue for the last 70 years now, and it has miserably failed. Unless you give some security to the investor in the form of land, he won’t invest here. You have to give growth a chance,” says Sethi.

But is it a good idea given the situation in Kashmir?

“See, the lack of communication or selective communication is a problem with Kashmir. But now, good sense is prevailing. We must put a full stop to killings and give growth a chance.”

As a senior advocate, how does he see the State’s defence?

“The state government has put up the right defence.”

Can BJP afford another agitation in Kashmir, as predicted by many observers and politicians cutting across party lines, especially the NC patron and two-time chief minister of the state, Dr. Farooq Abdullah?

“Listen, unlike previous governments, this government is not afraid of any threats. There was a time when these types of threats used to work. They are not going to work anymore. I don’t understand why these NC people are afraid of the judgment? If they think they have logical stand on the issue, then the SC, I am sure, is likely to consider it. But let me assure you, whatever the judgement, there will be no trouble in Kashmir this time around.”

Much of this confidence, many believe, is stemming from the ongoing ‘all out war’ in Kashmir where the distinction between civilian and insurgent has almost blurred. Army Chief Bipin Rawat in his recent controversial statement said he wished the boys had guns in their hands rather than stones. Many see this as a new policy that is more martial than political.

Much of this confidence, many believe, is stemming from the ongoing ‘all out war’ in Kashmir where the distinction between civilian and insurgent has almost blurred. Army Chief Bipin Rawat in his recent controversial statement said he wished the boys had guns in their hands rather than stones. Many see this as a new policy that is more martial than political. Even the BJP high command, it is believed, wants to act tough in the Valley to stay mainstream in its stronghold, Jammu.

BJP, many believe, was never so close to achieving its ideological stand of integration of J&K with the Union of India as it’s today. For that, all decks seem to have been cleared. While the file of Article 35A is mysteriously missing from South Block, a larger sense prevails that BJP has mobilised spin doctors for changing discourse on the issue. Most of them don’t shy away from equating Article 35A with apartheid besides calling it “a symbol of Kashmiri colonialism.”

Will this judicial fiddling stop at Article 35A?

“No,” blurts Sethi, “There are various other legal issues in Jammu and Kashmir, which need to be tackled.”

Like?

“Like basic structure of Constitution, powers of President, provisions which can take away the judicial interventions in various matters. In fact, Article 35A takes away the judicial interventions in different matters. And therefore, it needs to be taken care of.”

Since all the three petitioners seem to enjoy the Sangh Parivar’s backing, does that mean, BJP is now increasingly taking legal route for fulfilling its ideological agenda?

“First of all, we have nothing to do with all the petitioners involved. We don’t do it that way. If BJP has to achieve anything, we will achieve it politically without resorting to such tactics. In fact, before coming to power at the Centre as well as here, both RSS and BJP held extensive seminars on Article 35A and J&K’s special status. I have myself spoken against Article 35A in those seminars. We have crystallised everything. So, yes, let’s wait and watch.”

If the post-Diwali judgement goes in favour of the petitioners, experts and observers believe, it will be nothing less than a constitutional coup. In that case, the political fallouts and the ensuing shenanigans of the Sangh Parivar can very well be imagined.

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