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Row over Article 35A nears flash point in Kashmir

By Mohammed Sayeed Malik
August 23, 2017 11:15 IST
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'Underestimating its potential implications, in the event of an 'adverse' verdict, could turn out to be a huge political blunder,' says Mohammad Sayeed Malik, the distinguished commentator on Kashmir.

The Jammu and Kashmir government has said it will protect the special status granted to the state under the Constitution. 'We are here to safeguard and protect Article 370 and Article 35A,' then law minister Basharat Bukhari told the J&K assembly on October 6, 2015. Photograph: Umar Ganie

'You have saved Kashmir for India.'

That was how a greatly relieved Prime Minister Jawaharlal Nehru instantly responded to the telephonic report flashed to him by his Intelligence Bureau chief B N Mullick, on January 4, 1964, that Prophet Mohammad's holy (hair) relic stolen from the Hazratbal shrine in Srinagar had been recovered.

Fifty-three years later, today, a similar situation, sparked by the furious controversy over the fate of Article 35A of the Constitution of India is ominously spiraling towards a point where one might have to face the inevitable question: Who is it going to be, this time, to 'save Kashmir for India', if and when it comes to that.


With each passing day, that troubling possibility is nearing the dreaded probability.

The 1964 incident was perceived here to be a sinister attack on the 'faith' while the present challenge to the technical legitimacy of Article 35A is seen as a disguised assault on the 'existence' of the demographic status of India's only Muslim majority state.

Massive eruption of public anger, in 1964, across the valley and its shock waves across the subcontinent had shaken the citadels of power and authority between Srinagar and New Delhi and overturned the local political landscape.

The unresolved mysterious theft of the holy relic on the night of December 26-27, 1964 and its equally mysterious recovery a week later, on January 4, both remain shrouded in mystery till this date. Lingering dormant fears on that account are now coming to the surface.

As in the case of the holy relic, surging sentiment over the issue of Article 35A cuts across all divisions: Political, ideological and sectarian.

Existence of this controversial proviso, vulnerable to widely divergent technical interpretation, is commonly understood to be crucial to safeguarding Jammau and Kashmir's existing demographic status.

People here perceive some design behind seemingly a stray legal challenge to the Constitutional legitimacy of Article 35A. This move is generally feared to be the proverbial thin end of the wedge. Hence, the stiff resistance.

The hotly debated issue is fast gathering momentum as the scheduled day of the hearing (August 29) of the writ petitions by the apex court draws near.

It has left no segment of Kashmiri society untouched.

From lavish wedding gatherings to austere congregations, from shop fronts to spacious convention halls, there is only one topic of discussion -- Article 35A, precisely its fate.

It is as if a huge calamity is about to befall the 'paradise on earth'.

There is no doubt that this raging debate has dismantled traditional lines of division across the board.

Usual politics and ideology have receded into the background.

Traditional bickering across the divide has vanished into thin air.

Only Article 35A remains on the menu.

Outline of this build up resembles the 1964 scenario which had culminated in the overthrow of a decade-old unpopular (G M Bakshi) regime, never to be seen again.

All the symbols and signs of that regime were consumed in the fury of the agitation over the holy relic theft.

Yet another commonality between the holy relic incident in 1964 and the present controversy over Article 35A lies in their fallout that goes far beyond their declared immediate objectives.

Recovery of the stolen holy relic did not end the mass unrest. Ironically, it got aggravated.

The row over Article 35A has aroused quite a few dormant fears that are likely to linger long after the main issue is decided, one way or the other.

To recall the connected events, mass protests continued to rock the valley even after recovery of the stolen holy relic on January 4, 1964, a week after its disappearance from the sanctum santorum of the Hazratbal shrine.

Devotees demand its proper identification by a competent religious authority which then was easier said than done,

At that stage, the overall command of the ground situation in Kashmir was held by then Union home secretary V Vishwanath who set up his headquarters in Srinagar.

His bureaucratic narrow approach sparked a more dangerous controversy after he arrogantly declared that those demanding identification of the recovered holy relic would be viewed and dealt with as 'agents of Pakistan'.

His shoot-at-sight orders resulted in avoidable casualties (a rare phenomenon those days, unlike now).

As the situation escalated, the political leadership in New Delhi got into the act and Lal Bahadur Shastri was rushed to Srinagar.

Ultimately, it was his sagacity that 'saved Kashmir', as it were.

Shastri, over ruled the Vishwanath-led bureaucracy and conceded the demand for proper identification of the holy relic by respected local religious personalities.

That was a fraught move as well, but a lesser evil in the given difficult situation.

The situation demanded calculated risk and in the end it did pay.

Acute tension and suspense over the possible outcome of the holy relic identification literally paralysed life in the valley.

From Srinagar to Delhi, everyone waited with bated breath.

It was like the dread of watching a violently pulsating volcano.

The scene on the ground abruptly changed to relaxation and rejoicing after the priests declared the recovered relic to be the original one.

The valley was back from the brink.

An unassuming Shastri's political sagacity made all the difference. He instantly won the hearts of Kashmiris.

A similar surcharged atmosphere is building up in the valley over Article 35A.

Suspense over its fate is thickening by the day.

The Narendra D Modi government's silence in the matter is an aggravating factor and fuels all sorts of fears.

Fears on this account cut across all lines and, like in 1964, the momentum of the sentiment is galvanising emotions on the ground.

The surcharged emotional/political atmosphere in Kashmir virtually leaves no room for even contemplating the possibility of an adverse verdict -- invalidation of Article 35A that safeguards the maharaja's 1927 'state subject' law.

Non-state subjects are barred from buying land or settling here permanently.

Fears on this account were aggravated with the Bharatiya Janata Party's coming to power at the Centre and later sharing power in this state.

That is an added reason for mounting tension this time although it is not for the first time that Article 35A is being challenged.

Earlier (non-BJP) governments in New Delhi had directly intervened and managed to ward off the adverse political fallout of stray writ petitions filed in the apex court.

Legal/Constitutional opinion on the issue is sharply divided outside Kashmir.

The crucial factor is said to be the 'legitimacy' (or otherwise) of Article 35A as being a part of the Constitution of India without Parliament ever having adopted it.

On the other side, the argument is that its direct linkage with Article 370 (granting special Constitutional status to Jammu and Kashmir) bestows legitimacy as well as unchallengeable permanency to Article 35A.

Be that as it may, the issue is dragging Kashmir to the brink, ominously like that in 1964.

Underestimating its potential implications, in the event of an 'adverse' verdict, could turn out to be a huge political blunder.

IMAGE: The Jammu and Kashmir government has said it will protect the special status granted to the state under the Constitution.
'We are here to safeguard and protect Article 370 and Article 35A,' then law minister Basharat Bukhari told the J&K assembly on October 6, 2015. Photograph: Umar Ganie

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Mohammed Sayeed Malik