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Forget Article 370, gun is on Article 35A’s head in Kashmir

The little known article creates special categories with special rights, and denies even basic ones to 'permanent residents'.

 |  Metrosocial  |  3-minute read |   12-07-2015
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One thought it would come crashing like a comet through the window. Instead, the challenge to Kashmir’s constitutional "otherness" is creeping in like ivy over the backyard wall.

And who would have thought a little-known Article 35A, and not the famous Article 370, could be the centrepiece of this challenge. Who would have thought things would start moving while Narendra Modi’s BJP is in bed with PDP, the party which comes closest to accommodating the separatist voice in the Valley.

As Mail Today reported first on Thursday, the Jammu and Kashmir Study Centre, an RSS-affiliated think tank operating from a stark office on Delhi’s Deen Dayal Upadhyay Marg, is ready to move the Supreme Court challenging Article 35A. It was not part of the Constitution but added by a presidential order on May 14, 1954.

The petitioners contend that then prime minister Jawaharlal Nehru got the Constitution illegally amended by first President Rajendra Prasad, bypassing Parliament. Article 370 does not anywhere confer on the President legislative or executive powers so vast that he can amend the Constitution or perform the function of Parliament, the petitioners argue.

Many in the RSS have maintained that the real devil is in Article 35A, not Article 370, because it creates special categories with special rights, and denies even basic rights (including owning land and getting educational seats) to those who are not "permanent residents".

And the creative legal attack on Kashmir’s special powers does not come in isolation. Mail Today principal correspondent Siddhartha Rai’s story in the July 12 edition shows how manual scavengers who had been brought to Kashmir from Punjab by the J&K government in 1957 are set to approach the SC/ST commission and the National Commission for Safai Karamcharis. After nearly six decades of service in the state, they have been denied the right to quit scavenging and choose any other profession.

The other challenge to Article 35A will come from "non-permanent" women residents of the Valley who say they have been denied property and inheritance rights. Some of them will shortly move the National Commission for Women and the National Human Rights Commission.

Even those who fled West Pakistan during Partition and settled in Kashmir are still refugees in the eyes of the state’s laws. One such West Pakistan refugee — a certain Manmohan Singh — whose family migrated to Amritsar, went on to become the prime minister. He would not have come even close to that office if his family were to settle in J&K.

The Sangh Parivar, through its affiliates, is bringing all such strands together to make its case in the Supreme Court stronger.

Its view that Kashmir ought to be brought into mainstream India is old and well-known. It has started its action quietly, insidiously, taking an unpredictable and creative legal route.

The RSS is also looking forward to the stormy debates which would ensue. “We are eagerly waiting for intellectuals like AG Noorani, who support Kashmir’s extraordinary status, to discuss this in public. We would love him to be on a TV debate,” says an RSS senior, smiling.

After the first report in Mail Today, small protests have already started breaking out in the Valley. One such reportedly happened on Saturday in Srinagar.

The first metaphorical stone has been cast. The worry is that in Kashmir, the real ones usually follow swiftly.

The former Jammu and Kashmir chief minister's reaction to the article:

Writer

Abhijit Majumder Abhijit Majumder @abhijitmajumder

Journalist. Managing editor, Mail Today.

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