J & K – Constitution, the Controversy. Article 35A

Supreme Court next week is expected to resume hearings on a PIL challenging the validity of Constitution’s Article 35A. Amitabh Mattoo , who was adviser to Jammu & Kashmir’s former chief minister Mehbooba Mufti, speaks to Pradeep Thakur on the continuing relevance of the constitutional provision to the state:

Can you contextualise Article 35A in the events leading to J&K’s integration with India?

In 1947, J&K was the only princely state which had a Muslim majority, was ruled by a Hindu king and had contiguous borders with both India and (what would become) Pakistan. According to the letter and spirit of the British Partition plan, it could have stayed with India or become part of Pakistan. When Pakistan sponsored tribal forces attacked Kashmir, the Maharajah acceded to India in October 1947 and handed over the interim administration to Sheikh Abdullah.

Given that the state itself was a product of unique historical circumstances and was, in many ways, culturally unique, Article 370 and Article 35A were introduced in the Constitution of India to give J&K considerable political autonomy and give its residents special rights.

Do events of that era still matter to today’s Kashmir Valley?

Article 35A still has exceptional resonance in the state. The special rights given to the residents of the Valley were introduced during the Maharajah’s rule (especially on the plea of the Jammu Dogras and Kashmiri Pandits) in 1927, to prevent land alienation and to ensure that jobs in public services were not taken away by non-residents from the plains of Punjab. This concern is of great validity even today.

J&K is hardly unique in providing special rights to residents. Himachal Pradesh and most of the north-east states have laws that prevent outsiders from buying land or property in these states. Every nuanced anthropological study has recognised that land alienation and cultural identities are intertwined: you take away the former, you destroy the latter.

Some separatists supported a bandh call in connection with the SC hearing of Article 35A. Doesn’t it imply they have implicitly accepted the Indian Constitution as their basic reference point?

The fact that people and organisations across the political spectrum have opposed the removal of Article 35A proves beyond doubt that support for state subject rights cuts across ideological differences.

Now, various administrative and judicial interpretations have implied that there is an inbuilt gender discrimination within Article 35A. If indeed there is strength in this argument, it should be dealt with firmly under Article 14 (the right to equality) of the chapter dealing with Fundamental Rights and the State Constitution which guarantees gender equality. The issue of gender rights can be dealt with even administratively although now that the issue is sub judice, that executive remedy may not be possible.

Doesn’t Jammu region resent Article 35A?

I think the issue seems polarised when really people of J&K should be making common cause on the issue. Unfortunately, in the age of Manichean politics, every issue becomes Jammu versus Kashmir when on 35A it should be the people of the whole state united against the erosions of these rights.

During your association with Mehbooba Mufti government, did you ever feel that BJP was willing to revisit its position on special status to J&K?

Every political party is a work in progress. They have to moderate their absolute stance once faced with the reality of public opinion and electoral politics. BJP had agreed to put Article 370 on the back burner when they negotiated the Agenda of Alliance. Was this a strategic shift or done for tactical reasons? Only time will tell.

How do you characterise the current phase of militancy where entire villages in south Kashmir seem to be coming out in support of people who have taken up arms?

I think there is a frightening new anger and angst amongst the young people especially, and an unprecedented level of radicalisation. I have never seen a deeper sense of alienation in the last three decades.

There are multiple causes for this anomie, this bitterness. It is related to global, national and local factors. Globally, social media has emerged as a powerful engine for radical indoctrination and mass mobilisation, across traditional boundaries. Nationally, there is a feeling of minority marginalisation and discrimination. Locally, there are lack of opportunities, of creative outlets, and resentment against poor and often corrupt structures of governance.

The short life of a militant is one which to some, at least gives them agency – even if for a brief while. Force is hardly the answer; in this case force acts as a multiplier of the anger and every death’s mourners today are on the cusp of becoming a militant tomorrow.