Two women go to court. And it raises a storm over Kashmir’s special status
When Charu Wali Khanna had petitioned the supreme court for striking down Article 35A of the constitution, she had wanted restoration of her right as a native of Kashmir to live there. Little did she know that it would create a storm in political circles and trigger panic among people of the valley where her family had lived till a century ago. Khanna has no link with the BJP, a usual suspect in any move that seems to impinge on the special status of the state of Jammu and Kashmir. She was, in fact, a member of the National Commission for Women (NCW) during the UPA government and is a supreme court lawyer. Her co-petitioner, Dr Seema Razdan Bhargava, a Kashmiri who had married (since widowed) a ‘non-Kashmiri’, is also seeking her right to be recognised as a daughter of the soil.
“My family had lived in Karan Nagar [in Srinagar],” Khanna told Governance Now. Her father was a government employee and the family had moved from one city to another of the undivided India. Now settled in Delhi, Khanna wonders why she can’t go and settle in Kashmir.
J&K’s law on permanent residentship (PR, commonly called the state subject law) is brazenly skewed in favour of men. To understand it, let’s take the case of former chief minister Farooq Abdullah’s family. After the marriage, his wife, a British, was only required to become a citizen of India to be considered a resident of Kashmir. Their son, Omar Abdullah, is married (since separated) to a woman from Haryana; she has automatically become a ‘Kashmiri’. But Abdullah’s youngest child, Sara, is married to Congress leader Sachin Pilot, and her children have no right to inherit her share of the ancestral property. In fact, Sara’s right to inherit property had also been established recently after a protracted legal battle waged by a group of women. At the end of it the J&K high court had held that women married to outsiders can get the share of their property but they can’t pass on the same to their children.
Article 35A of the constitution empowers the state legislature to define and regulate the rights and privileges of the PRs, especially with regard to acquisition of immovable property and employment. This comes under the umbrella of Article 370 that gives special powers to J&K to legislate on everything except foreign affairs, communication and defence. It’s another matter that all these provisions have got diluted over the years due to the sheer impracticality of managing the affairs of the state.
But as Kashmir today stands mired in insurgency and separatist sentiment, the clamour for maintaining its special status is at its peak. This is the reason that a mere filing of the petition to challenge the article is being seen as a major conspiracy. The state government led by a woman, whose one sister is married to a non-Kashmiri, was the first to see a monster in the petition. “If they [the Modi government] are going to tinker with Article 35A, then one day they will find there will be nobody to even carry the national flag in the Valley,” chief minister Mehbooba Mufti said in Delhi, soon after Wali Khanna had filed her petition.
Panic spread fast in Kashmir’s political circles as the date (August 14) for the hearing of the petition in supreme court was approaching. Kashmiri leaders were reacting as if the petitioners’ target was a fait accompli; even presuming the article would be struck down by the apex court. The cries of panic came from National Conference and the Congress, apart from the ruling People’s Democratic Party (PDP). However, eyebrows were raised when separatist leader Syed Ali Shah Geelani joined the mainstream parties’ chorus of condemnation of “the attempts to banish Article 35A”! More surprise was in store: One day Mehbooba drove down from her Fairview residence to Farooq Abdullah’s Gupkar Road residence; and the arch-rivals got into a huddle on the impending catastrophe. Columnists in Kashmir-based newspapers have been writing copiously on the serious implications of ‘striking down’ Article 35A, some even suggesting and wishing that it would lead to legal separation of Kashmir from India.
As against this, Jammu and Ladakh wore a studied silence, probably signaling the people’s confidence in the institution of the supreme court.
A senior politician not wishing to be named explained that the panic is due to the fact that Article 35A was inserted through a presidential order and not through the parliamentary route, hence it could be even struck down.
Back in 1954 when Article 35A was introduced in the constitution, politics was a different game. The Muslim-majority Kashmir had opted not to go with Pakistan and its becoming a part of India was a feather in the secular cap of the country. The political leadership of that time saw Kashmir as a little kid brother whose vulnerability and insecurity should be taken care of. There were no questions asked of the Kashmiri leadership’s intention as none doubted their sincerity.
As prime minister Jawaharlal Nehru, a Kashmiri, had said in support of J&K’s exclusive provisions for retention of state citizenship, the state had always been wary of rich non-locals who could rush to Kashmir to buy property and settle down, and the same fears had prevailed when the state was acceding to India. In fact, the first provision of no-outsiders, even through matrimony (to women), was coined by Maharaja Hari Singh. Nehru – as well as the whole political setup – wanted to accommodate these fears. But now with Indian politics becoming polarised and the challenge of combating the religion-linked terrorism in Kashmir, the situation is different. Kashmiris fear that the BJP-led government at the centre would one day dilute the Muslim-majority character of the state by bringing in settlers the way Israel has done in the Palestinian territories. These fears have played out when the Congress-PDP coalition government was trying to facilitate giving more land to the Amarnath shrine board for making arrangements for pilgrims in 2008.
BJP has made its position clear: it definitely wants to abrogate all special provisions for J&K since it believes these are the root cause of terrorism and secession in the valley. It, however, says openly that it will do so after coming to power on its own in J&K. In the meanwhile, the party’s fringe – think tanks, NGOs, and proxies – are keeping the debate on these contentious provisions alive.
So in the light of this, the supreme court’s verdict on 35A will be a landmark judgment. It will address the deprivation of Wali Khanna and Razdan Bhargava – as well as the fears of Kashmiris – while upholding the sanctity of the constitution and of the special relation between Kashmir and New Delhi.
(The article appears in the August 16-31, 2017 issue of Governance Now)