The arrogance of manipulated and stage-managed victimhood is being replaced by the fear of losing the game.

 

For the first time in the 70-year-long history of Kashmiri unrest, the competition of extracting increasingly bigger pounds of flesh from a meek opponent, that is New Delhi, is giving way to a desperate unity. The arrogance of a manipulated and stage-managed victimhood is getting replaced by the fear of losing the game. Kashmir valley is witnessing unforeseen bonhomie among a wide range of politicians, separatists, clerics, activists, intellectuals and terrorist gangs who wouldn’t otherwise see eye to eye and who, until a few months ago, used to compete with each other fiercely to blackmail New Delhi and hold to ransom this nation.

On 5 and 6 August, the so-called Joint Resistance Leadership (JRL)—a rehashed forum of divided Hurriyat leadership—supported by almost all Kashmiri political parties, separatist groups, front desk managers of terrorist groups and associations of lawyers, traders and transporters etc., gave call for a two-day-long Kashmir bandh. Their immediate goal was to put pressure on the Supreme Court to stop hearing the public interest litigation (PIL) challenging the legal validity of Article 35A of the Indian Constitution. The bandh, as expected, was very successful in five districts and reasonably successful in five other districts of Kashmir valley. But as has been happening over the past 70 years, not even an iota of support for the bandh came from the people of Jammu and Ladakh, two territories that occupy more than six times the area of Kashmir, and comprise the remaining 12 districts of the state of Jammu & Kashmir.

The reason behind this divide is obvious. Kashmiri leaders fear that declaring Article 35A as an “illegal” insertion or an “unconstitutional” provision will put an end to Kashmir’s supremacy over the rest of state. However, the people of Jammu and Ladakh see the abrogation of 35-A as their last chance to get freedom from the clutches of what they term as “Kashmiri colonialism”.

It was this desperation of the valley that was reflected in the statements made by two archrivals last year, when Mehbooba Mufti, then Chief Minister, threatened New Delhi that there would not be anyone “in Kashmir to carry the Indian flag”, and when Farooq Abdullah, the chief of the National Conference and former Chief Minister, warned of a “bloodbath” if Article 35A was removed.

The credit for this sudden surge of Kashmiri unity goes to a Jammu based NGO, We The Citizens, which has challenged the Constitutional validity of Article 35A, which forms the fountainhead of what is popularly perceived as the “special status” that J&K enjoys in the Indian Union. The fact is, while “special status” has kept the state insulated from answering to institutions such as the Human Rights Commission, the SC-ST Commission, National Commission for Women, National Commission for Protection of Child Rights, Right to Information Act and even the Comptroller and Auditor General of India and rest of India’s courts, at the same time, it has ensured that all the privileges and powers guaranteed by this status get concentrated in the hands of Kashmiri leaders, bureaucrats, religious leaders and even separatist outfits.

A well orchestrated campaign has been carried out to throw out the non-Muslims and non-Kashmiris from the valley so that almost all instruments of power could get concentrated in the hands of those who rule the valley and dictate the fate of the rest of J&K. No wonder the so-called Kashmir issue has remained confined to the dominant Sunni Kashmiri leaders and that too in only five out of the valley’s ten districts. While all the other communities, such as the Dogras of Jammu, the exiled Kashmiri Pandits, the Ladakhi Buddhists, Shias of Kargil, the Valmiki community, the doubly exiled refugees from POK, West Pakistan refugees of 1947, the descendants of the Gorkha soldiers of the pre-1947 Army of J&K and even the women citizens of the state have been on the receiving end of the Kashmiri whip. It is not a coincidence that since the Kashmiri Pandits and the Sikhs of Kashmir valley were pushed out in 1990, the Kashmiri part of the state Assembly (46 out of 87 functional seats in an Assembly of 111) is a 100% Muslim (read “Sunni Kashmiri”) bloc, which controls the fate of the entire state of J&K.

THIS TIME THINGS ARE DIFFERENT

It is not for the first time that the Supreme Court is hearing a case related to J&K. On dozens of occasions many lower and higher courts, including the Supreme Court, have thrown away appeals or have demonstrated their constitutional helplessness vis-a-vis the J&K government because of this “special status”, which emanates from Article 370 of the Indian Constitution. But this time things are different. If the Supreme Court agrees with the plea of We The Citizens on the legality of Article 35A, the supremacy of Kashmir valley over the rest of J&K will end for good.

If so happens, a major part of the credit will go to Jammu Kashmir Study Centre (JKSC), a think tank devoted to the justice for the people of Jammu, Ladakh and other “victim” communities. Through the fine sieving of Parliament proceedings and the Indian Constitution, the researchers of JKSC discovered that Article 35A was included as a “new Article” into the Indian Constitution through a Presidential Order on 14 May 1954. According to Prof D.K. Dubey, who is a Supreme Court lawyer, a law teacher and a member of JKSC, “It is interesting to note that the Presidential order introduced Article 35A as a ‘new Article’ with the instruction to be added after Article 35. But it is strange that instead of adding this ‘new Article’ in the main body of the Constitution of India, it was added as ‘Annexule-1’ to the book. This Article gives exclusive powers to the Legislative Assembly of J&K to form its own laws and rules to define who shall be the citizen of J&K and what rights he/she will enjoy.”

Article 6, adopted by the J&K Assembly on the strength of Article 35A of the Indian Constitution, bars other Indian citizens from employment under the state government, acquisition of immovable property in the state, settlement in the state and even the right to higher education and scholarships in state government institutions. In their memorandum to the Human Rights Commission, the Prime Minister and the Home Minister of India, organisations such as the Jammu Kashmir People’s Forum and POK People’s Forum have been pointing out that through a biased interpretation of Article 6, more than 10 lakh refugees from POK, who are living outside of J&K due to discriminatory policies of the state government, as well as West Pakistan refugees and members of the Valmiki community, have been denied their right to citizenship. They have pointed out that same Article 6 has been used by the state Assembly for granting permanent citizenship and associated rights to post-1959 Muslim refugees from Tibet and Xinjiang of China. Even in the case of Rohingya Muslim refugees from distant Myanmar, the valley-dominated government has been going out of its way to accommodate them in the state despite strong public opposition.

Deliberating on the “constitutional vulnerability” of Article 35A, Prof Dube says, “No doubt that every honourable President is within his rights to issue such an order. But since such an order amounts to amendment to the Constitution, it is bound to be discussed and passed by the Parliament to include it as a part of the Constitution. The way this Article was quietly added as an annexure to the Constitution without the knowledge and expressed consent of the Parliament, it amounts not only to the contempt of the Parliament but also renders Article 35A as an ‘illegal insertion’ in the Constitution. That is what cannot stand the scrutiny of Supreme Court today. The first thing to be thrown out after such a judgement is Article-6 which is the most handy tool of maintaining illegal Kashmiri grip over the state and people of J&K. That explains why these Kashmiri leaders are so worried and annoyed with the Supreme Court today.”

One rule implemented by the State government under Article 6 says that any woman citizen of J&K who marries an “outsider” will not only lose her own citizen rights, but her husband and children too will have no rights to jobs or higher education in the state or any rights over her ancestral property in the state. The Supreme Court has clubbed the appeals of some victims of this law along with the hearing on Article 35A. In view of the constitutional seriousness and impact of these laws, it appears that the Supreme Court might opt for a larger bench for a detailed scrutiny of Article 35A and Article 6. Its verdict is bound to have a big impact on the legal and political status of Jammu & Kashmir. But the worries and desperation of Kashmiri leaders and groups indicate that their political aspirations and manipulations of the victimhood game may soon come to an end.

Vijay Kranti is a senior journalist and Chairman, Centre for Himalayan Asia Studies & Engagement, CHASE.

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