Article 35 A: Mainstream’s identity lost

Shafqat Bukhari

The legal challenge to article 35 A of the Indian constitution governing citizenship and property rights to the people of Jammu & Kashmir has brought mainstream politics at the cross roads of its seventy year old post-1947 political history for the first time in Jammu & Kashmir state. Since National Conference has remained at the centre stage of mainstream politics for about 50 years the party can’t evade explanation for its failure in resisting the neutralization of the special status by successive central government. The PDP which emerged an alternative to National Conference too is responsible for the present mess created only after the party entered into an unacceptable alliance with BJP just for government and it was during this three year long alliance that BJP sponsored several legal and administrative attacks on article 35 A. Though the onus of responsibility for the attacks on political identity of Jammu & Kashmir carried out by an NGO “we the citizens’ obviously remote controlled by RSS back BJP lies on PDP which failed to persuade the Narendra Modi led BJP Government to file an affidavit against the PIL filed for abrogation of Article 35 A but National Conference which during the heydays of one party rule in the state instead of resisting the application of several objectionable central laws to Jammu & Kashmir missed very big opportunities in seeking the ratification of article 35 A by parliament from Congress and BJP led central governments despite having power sharing pacts with them.
The faith of the people in the Jammu & Kashmir Government’s commitment to defend article 35 A was virtually shaken when Chief Justice of India during August 6 hearing on petition filed by NGO “we the citizens” for abrogation of article 35 A said Jammu & Kashmir government has a “very limited” and “minimal” role, we would like to hear Attorney General representing Government of India during the preliminary arguments. Though counsels representing National Conference and CPI(M) Secretary M Y Tarigami objected to the observations of Chief Justice India in which they said “Jammu & Kashmir has a very key role” but Kashmir’s mainstream leaders need to be remind that observations of Chief Justice of India and not the remarks of those who have filed applications of intervention matter in the proceedings of the case. Kashmir’s mainstream leaders particularly those who belong to National Conference must regret the historical blunders of the founding leaders of their party responsible for allowing the extension of the Jurisdiction of the Supreme Court to Jammu & Kashmir in mid fifties. Had the founding leaders of National Conference particularly late Sheikh Mohammad Abdullah not allowed the extension of the jurisdiction of the Supreme Court of India after signing Delhi agreement with first Prime Minister of India in 1952 the lesser known NGO “we the citizen” won’t have even dared to think about challenging the article 35 before Jammu & Kashmir’s own Supreme Court. While the National Conference is morally oblige to regret over the historical blunders of their party founder the other Kashmir based mainstream political party PDP owes an explanation for misleading people of Jammu & Kashmir by claiming that Jammu & Kashmir government has role to contest the case against article 35 A. Now when the Chief Justice of India has said Jammu & Kashmir government has a “very limited” and “minimal” role, we would like to hear Attorney General K K Veenugopal representing Government of India during the preliminary arguments the contention of PDP that J& K government has a role in the case article 35 A is questionable on legal grounds. Question can be asked that if the Jammu & Kashmir Government has a “very limited” and ‘minimal’ role then home come it can assure the citizens of Jammu & Kashmir that it would defend the case against the Article 35 A when Chief Justice of India says it’s role to defend is “very limited’ and ‘minimal’. Surprisingly National Conference Vice President and Former Chief Minister Omar Abdullah while challenging the right of the separatists to challenge article 35 A said “protecting article 35 A is a tacit acceptance that future of Jammu & Kashmir lies in the constitution of India” but can he tells that should separatists not contest a legal invasion on the religious and regional demography of the state keeping in view their demand for a plebiscite as per UN resolutions on Kashmir.
Omar seeking restoration of political autonomy attracted huge criticism when he as Chief Minister of the state gave RBI the operational control of the Jammu & Kashmir Bank after the government commanded and controlled by him signed a MoU with the RBI in the year 2011. At a Constitutional level, this move legitimizes the surreptitious extension of the RBI Act 1934 to J&K done through the contentious Jammu and Kashmir (Extension of Laws) Act, 1956 (62 of 1956). Omar having played a key role in eroding the autonomy of Jammu & Kashmir Bank the premier financial institution of the state ceases the right to deliver sermons on defending a key constitutional guarantee like article 35 A.
After Omar Abdullah, Mehbooba Mufti too did not missed any opportunity to further erode the financial autonomy of the state when she as Chief Minister of the state did not challenge the appeal of the State Bank of India (SBI) against a landmark judgment of the Jammu & Kashmir High Court in the Supreme Court of the country for enforcement of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Interestingly the Supreme Court in its judgment said ‘while holding that provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) are within the legislative competence of Parliament and can be enforced in Jammu and Kashmir’. Mehbooba as Chief Minister had to defend the verdict of the Jammu & Kashmir High Court which had said ‘SARFAESI Act would collide with the Transfer of Property Act of Jammu & Kashmir, 1920’. SARFAESI is an enactment which entitles banks to enforce their security interest outside the court process to take possession of secured assets of the borrower and sell them outside the court process. Even naives can understand that when banks like state bank of India are allowed to take possession of secured assets of the borrower outside the court process the banks can sell mortgaged assets of the borrows outside the court process even to non state subjects and henceforth Mehbooba government has given a legal route to non state subjects to occupy immovable property in Jammu & Kashmir. Even after giving a legal route to non state subjects to occupy immovable properties of the people of Jammu & Kashmir Mehbooba takes pride that her government defend special status of the state. Was this the agenda of alliance and was this the dream of Mehbooba’s father late Mufti Mohammad Sayeed. Mehbooba can’t talk about defending special status of the state when she as chief minister and ally of BJP has failed to persuade Modi led BJP government at the centre to file a counter affidavit against the petition filed a lesser known NGO ‘we the citizens’ for the abrogation of article 370.
Since Omar and Mehbooba have offered no resistance to the extension of RBI control over Jammu & Kashmir and extension of SARFESI the Modi government the only challenge to Modi government is the resistance of the separatist leadership and some key civil society groups in unison with Kashmir trading bodies. An unprecedented shutdown across Jammu & Kashmir barring districts of Jammu, Udhampur and Samba against the attempts to tinker with article 35 A on the call of separatist leadership is an eye opener for the Modi government in Delhi and isolation of Mainstream leadership can’t be covered up now. Now when even the Supreme Court of the country has said that Jammu & Kashmir Government has a “ very limited’ and a ‘minimal role’ in contesting case against abrogation of article 35 A the people of Jammu & Kashmir are politically conscious enough to understand that government in Delhi use mainstream leaders including the likes of Omar Abdullah and Mehbooba Mufti as pawns in execution of their own policies on Jammu & Kashmir. By their actions both Omar Abdullah and Mehbooba Mufti have mutilated the face of mainstream politics in Jammu & Kashmir.
(The author of this cover story is Editor-In-Chief of English Daily “The Kashmir Horizon”)