Why Article 35A must stay

Scrapping of special laws would close the last opening for reconciliation in Kashmir and in South Asia.

As the colonial era withdrew, with the world map redrawn to shape new nation states, two countries took birth on the basis of religious identity: Pakistan and Israel. The toxicity of the new creations continues seven decades down the line, to increase in intensity and impact, almost hijacking the millennial developments and scripting the 21st century hate discourse.

Jammu and Kashmir, then popularly known as just Kashmir, was a semi-independent country under British suzerainty ruled by a Dogra Hindu king. This sprawling country of diverse ethnicities, climates, topographies, religions and cultures, spread from the Karakoram to Punjab plains, had one commonality: It had almost 80 per cent Muslims living in all areas. The united India was at war with itself on the basis of religious hostility, Muslims demanding a separate country and the Hindu majority acquiescing (or abetting?) to it.

Kashmir stood out in one grand, standalone adventure to reject the idea of separation based on religion. In the post-colonial nation-building effort, that was the most exciting experiment which offered the national leadership of Gandhi and Nehru some basis to retrieve their secular credentials after having been a party to the Partition. It was also the first instance in the 1,400 years of Islam that an overwhelmingly Muslim entity had given itself up to a non-Muslim country of continental size, defying the logic of Partition which unfortunately continues till this day as the defining discourse of India.

To assuage the apprehensions of being swamped in a country which was still a hundred times larger than it in population, constitutional guarantees were built into the relationship as it grew from romance to disillusionment, subterfuge to hostility. The people of the state, Muslims in particular, got to know that the architects of accession were actually trying to trick each other rather than building a nation which could work as a bulwark against the tempestuous forces that were in the womb of time.

As the Supreme Court of India heads towards a decision on the validity of Article 35A of the Constitution of India, this perspective is deliberately kept out of the discourse. It is lost in hateful rants on evening TV shows with the result that Kashmir illiteracy at the national level is now competing with the learning standards of our government schools. To youngsters in the country, Kashmir is at best the abode of Amarnath or a place inhabited by an ungrateful, dangerous species.

This won’t be the first judicial challenge to the constitutional scheme governing J&K to safeguard local laws of the state, mainly the “state subject law” which was introduced by Maharaja Hari Singh in 1927. This law came in response to apprehensions which prevailed then among the Dogras of Jammu and Kashmiri Pandits having monopoly over government jobs and landed estates about the Punjabi Muslim elite which had started acquiring land and poached on jobs in J&K. After Independence, it became the only tool of residents of J&K to safeguard their identity but many in the rest of the country could not sympathise with this genuine feeling. So it came under judicial challenge time and again but stood the test even of a five-judge constitutional bench.

The heightened apprehension this time owes to the fact that, unlike on previous occasions, the Union government is not defending the case but has left it to the court. That can be attributed to the ruling BJP’s agenda of scrapping the special status of the state altogether. The state government under the PDP organised the best possible legal defence but the governor’s administration, in spite of NN Vohra’s deep understanding of the sensitivity of the issue and his empathetic stance, is generally seen as an extension of the Union government. So it seems to an ordinary citizen of the state a lost case, which it may not be, given its strong legal standing.

Whatever the history of this arrangement, there are many contemporary factors that must be seen and considered to reach a modern understanding. In Assam 40 lakh people are sought to be robbed of citizenship rights to address the sensitivities of other citizens of Assam: Demographic change. If there is a citizenship register for the country, which is good, why can’t a state under the same constitutional scheme have its own citizenship register? If Bangladeshis, actually east Pakistanis, can be thrown out, why does someone insist that west Pakistanis should be given citizenship of a state in violation of its law?

The state subject law has served J&K and the country better than its absence would have. The state is a collage of ethnicities, all of which have flourished in a model that should guide other states. Just an example: J&K has almost the same ratio of Muslim and non-Muslim population in reverse order as that of West Bengal. Look at the services of both states for a fair assessment of that claim.

In J&K, non-Muslims outnumber Muslims in the elite Kashmir Administrative Service, which we celebrate. The state secretariat is a unique building in today’s fractured, exclusivist world, housing officials and clients from all major religions in right proportions, not mirroring symbolic representation like our national institutions. There are just a few thousand Shina speaking Dards, Pushtos, Baltis, Hindu Gaddis, nomadic Bakarwals. A mere 1.5 lakh Buddhists of Ladakh occupy a seat, as they must in all federal structures, at par with Jammu and Ladakh. The flood gates that could open with an influx from the mainland will definitely wipe these small entities out.

Finally, scrapping of the special laws would close the last opening for reconciliation in Kashmir and therefore in South Asia. Handing out a final defeat to people of the state at the hands of their own country would come in a situation where even status quo could mean victory for them, so necessary for redeeming the 70 year-old jumla of winning hearts and minds of Kashmir.

Their Lordships are the only hope in preventing that disaster as their peers have done in the past. It may only be a judicial issue, but in it could be seeds of the future — whether we continue planting chinars in Kashmir or thorny bushes from the scorched plains of the country.

Source: Indian Express, 10/08/2018