Srinagar
As the Supreme Court is slated to hear the petition regarding the Article 35(A) from Tuesday, for three days, Kashmir is pushed to the edge. Already grappling with the post-Lethpora attack and scarcity of essential supplies because of the continued closure of the Srinagar-Jammu highway, the fear of the case has overtaken everything. On Monday, when the crowds are huge, the movement on the roads was much less, in comparison to routine, and not many people are moving around.
Kashmir sees the challenge to the Article 35A as a trespass to the set of guarantees that was negotiated post-accession to help the state retain its identity. A hugely emotive issue, the parties, cutting across political lines and ideological boundaries, are keen that it survives the judicial scrutiny as has happened earlier.
In anticipation of the hearing, a crackdown in the last few days led to the arrest of around 200 activists of Jamaat-e-Islami and Jamiat-e-Ahlihadis. JKLF leader Yasin Malik was also arrested as Mirwaiz Umer Farooq, Syed Ali Geelani and Prof Abdul Gani Bhat were under house arrest. The arrests followed the overnight arrival of 100 coys – more than 11,000, additional paramilitary personnel from Delhi.
What will happen in the courtroom is the most important question being asked everywhere, in offices and the streets. The local lawyers have constituted a committee to defend the constitutional guarantee and some political parties have also hired attorneys to present their version in its defence. But what will be the outcome of the in-camera proceedings starting on Tuesday is not anybody’s guess. The case is likely to be listed before a five-member bench.
The hearing came in the wake of a series of letters that panicked Kashmir. All gazetted officers were asked not to proceed on leave; winter vacation of the doctors was cancelled; medical school students were reportedly asked to vacate the hostel for the time being; coaching centres in various districts were asked to declare week-long holiday; hospitals were asked to collect necessary medicines and other supplies in time as the Consumer Affairs Department was asked to exhaust the stocks within a specific time frame. All these orders added to the panic in the state, even though some of these orders were withdrawn later.
Though state’s newly appointed spokesman Rohit Kansal asked people to avoid paying any heed to the rumours, the government failed to offer any plausible explanation for the chain of orders that took place in last three days. Many thought the scare was deliberately generated.
“There is some security related action being taken by the forces, but this is purely related to the Pulwama attack which is unprecedented one,” Jammu based newspaper Excelsior quoted Governor Satya Pal Malik saying. “Response of security forces is guided solely by the need to counter both impact and any further action that may be taken by terrorist groups, who are still out to disturb our country and its democratic process.”
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Even on Article 35A, the state has not been able to offer any assurances. The case gradually emerged into a serious crisis when in 2014, Sangh supportive NGO, We the People challenged the Article through a PIL. Subsequently almost a score odd petitions were filed. Since then, the case was adjourned almost 14 times.
JK Govt Stand
Talking to media in Jammu, Kansal said the state government has already cleared its stand. “The state government has already written a letter on February 11 and requested for adjournment of the proceedings (in pleas challenging Articles 35A and 370, which provide special status to state). That remains the government’s stand on the issue,” Kansal said in his maiden presser on Sunday.
This is the stand that former governor N N Vohra has taken when he took-over in wake of the collapse of the BJPDP government. He wrote a note to the MHA that the court must be requested to adjourn the case till an elected government is in place in the state. It also took recourse to plea that adjournment would trigger law and order situation which can impact the urban local body polls.
It was in this backdrop that state’s standing counsel Shoeb Alam in the Supreme Court had moved an adjournment letter before the court on February 11, citing the absence of elected government in Jammu and Kashmir to adjourn the hearing.
The last hearing of the case took place on August 31, 2018. Since then, it has been getting adjourned even though it routinely is listed in weekly cause list. Its initial adjournment came on the request of the attorney general K K Venugopal on the ground of panchayat polls in the state.
Apparently apprehensive that the central government may use the governor’s administration in tinkering with Article 35A, NC and PDP with the help of Congress had staked the claim for forming a government to defend the case. Insiders said the idea behind the maha-gathbandhan was aimed at defending the case and putting in papers after that. “It was not the government for the balance term of the assembly,” one insider who knew of the developments said. However, the governor Satya Pal Malik said he received multiple claims – one from Sajad Lone, and dissolved the assembly.
Delhi Stand
The central government avoided responding to the petitions even after the notices were issued by the Supreme Court. The last government, once, sent a delegation of its ministers to meet the decision-makers in the central government. They had made certain suggestions insisting that Delhi must put its stand before the court so that it helps address the confusion. It did not happen. It, however, could manage the adjournment of the case that continues.
What Delhi wants now is still unclear even though the case is being taken up this week. Though nobody has officially talked on the issue, various newspapers have quoted sources to drop some broad hints.
“Although the Centre had sought multiple adjournments of the hearing, post-Pulwama it is inclined to revisit the issue,” Times of India reported on Sunday. “There are indications that it may change its stand to seek an expeditious hearing. In fact, sources said the government is also considering the option of promulgating an ordinance to scrap the provision which is key to the endurance of the “special status” provided to the state through Article 370 of the Constitution.”
The newspaper further added: “Government functionaries confirmed on Saturday that a review of the Centre’s stand in the SC on Article 35A is under way. They refused to confirm whether recourse to the ordinance route was an option, but emphasised that the pendency of the matter in court will not be a deterrent should the government choose to exercise it. “A matter being sub judice does not injunct the government from acting on it,” said a government source.”
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Reporting the same day, India Today quoted sources saying that “there was more than one proposal on the table on how to go about the move, including employing the same route that was taken to bring the clause into existence.”
The government, it said, would avoid “a direct measure” but may make its stand clear as a “signal of intent”.
“Sources have confirmed that the centre will not be making a written submission on the issue but make an oral mention in the inchamber SC hearing,” India Today reported, insisting the official stand is devised by a select group comprising Prime Minister Narendra Modi, BJP president Amit Shah, home minister Rajnath Singh and finance minister Arun Jaitley.
It quoted Home Minister Rajnath Singh saying: “The government will do whatever is possible within the confines of the constitution of India.” However, it quoted a “senior BJP leader” saying: “If the assessment (by security and intelligence agencies) is negative the government may be forced to ask the Supreme Court to postpone the issue till elections are held.”
Informed sources in Delhi said that the MHA is keen that the state government’s counsel should approach the Supreme Court and seek an oral audience. There has not been any final decision yet, sources said, adding that centre may tell the state counsel to do it.
State Parties React
NC and PDP, the two parties with a main support base in Kashmir are angry and fed up with the sudden importance that the centre is giving to the particular article that protects the state’s Muslim majority status. The article which is part of the constitution of India (for Jammu and Kashmir) is the key constitutional guarantee that protects the demographic composition of the state and has been there a few years after the accession.
“You keep threatening us with article 35 A. Look at what is happening in Arunachal Pradesh now where there is no militancy. They have interfered with their Permanent Residence Certificate (PRC) as we have. See what is now happening there,” NC, Vice President, Omar Abdullah said while talking to his party workers on the occasion of Farooq Shah’s joining the party. Shah, a senior bureaucrat, joined NC after resigning last week. “Hold elections. Let people take the decision. The new government will itself work towards safeguarding Article 35A.”
Omar added: “Any misadventure in fiddling with the state’s special status will unarguably have serious and far-reaching consequences in Jammu and Kashmir.”
“Don’t play with fire; don’t fiddle with Article 35A, else you will see what you haven’t seen since 1947, if it’s attacked then I don’t know which flag people of J&K will be forced to pick up instead of the tricolour,” former Chief Minister Mehbooba Mufti and PDP president told reporters after flying in from Delhi. “Article 370 is the constitutional connection between Jammu and Kashmir and the Indian Union. The instrument of accession is contingent on Article 370, which is inextricably linked to Article 35A. Any tampering will render the Treaty of Accession null and void.”
The Pakistan Factor
Islamabad which is attempting to avoid war with India has also expressed its concern over the issue. Its foreign minister Shah M Qureshi has cancelled his Tokyo visit.
“We understand that the Supreme Court of India is due to deliberate, shortly, on the petitions calling for the scrapping of Article 35A of the Indian Constitution,” Dr Muhammad Faisal, Foreign Office spokesperson was quoted saying. “Any move in this direction would be a blatant violation of international law and the relevant United Nations Security Council resolutions, which prohibit introducing material changes to the disputed territory.”
Scare Continues
Even though everybody from Delhi to Srinagar is trying to address the panic in which Kashmir is living for the last couple of days, the situation has remained the same. “People remained busy in making panic purchases during the whole days. Please don’t buy essentials impulsively and tank up fuel and stock gas and medicine. It creates problems for commoners and daily wagers. Don’t pull up things madly from stores,” senior journalist Mufti Islah wrote on his Facebook wall. “This ‘fickleness’ is used by some greedy stores to fleece. Demand gives them the pretext to create artificial scarcity and the black market.”
