Debating Article-35A

Debating Article-35A

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Many moderates in India had dreaded the rise of BJP in the Indian high offices that it will bring in its blind lust of Hindutva, chaos and rift in Indian society.

This anticipation proved very true in case of the Muslim majority, State of Jammu and Kashmir. In July 2015, an RSS think-tank came up with the blood-tainted idea of challenging Article35A in the Supreme Court of India.

Think-tanks are meant to think bigger than average people, reminding the people the broader structure of things; structures that are lodged in history and societal values of the people. Think-tanks bring to vision the reasons behind long-running resentments and unresolved issues – reasons that have faded away from immediate memory due to focus on the present state of affairs – they bring back lost wisdom and give foresight by travailing into the past. Based on sound analytics and thorough research they present solutions that can resolve conflict, not by selective truths but by embracing all truths.

But sadly the above mentioned RRS-backed think-tank did not bother to look in the matter of Jammu and Kashmir in its not-so-old historical context nor did they care to certify the resentments of the people, rather diametrically they chose to take the case in a closed-box formulary. And dismally the blinding closed-box in which they have put the Jammu and Kashmir case is the hate-coated Hindutva that sees the whole of the Indian Subcontinent as a case of Ghar-Wapsii (return of all people to Hinduism, regardless of their right to belief).

Article 35A was penned down by Jawal Lal Nehru in 1954 when he used the power conferred to him in Article 370 of the Constitution of India. So what was Article 370 and why was it needed?

When the Subcontinent was partition in August of 1947, it was clear to the people of Jammu and Kashmir and to the State of Pakistan that Kashmir was going to be a part of Pakistan, due to religious oneness and geographical proximity – the two criteria for Accession. Therefore Maharaja Hari Singh’s secretly passing the letter of Accession to India was seen as connivance on his part by the people of Kashmir. The conflict in the matter was not undefined in the logbooks of India’s history; Lord Mountbatten who sent his approval to Hari Singh for the Accession, wrote in his reply, “…in the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State, it is my Government’s wish that, as soon as law and order have been restored in Kashmir and its soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people”.

On the call and desperation of the people, Pakistan had launched its first war against India in the held-Kashmir in October 1947, just 2months after creation. In this war, Pakistan liberated one-third of Kashmir, which operates independently in alliance with Pakistan, while two-thirds remains occupied by India. Hence forth the Issue of Kashmir was presented to the United Nations by the two disputing sides. The Issue remains unresolved in the UN to this day, making it an international conflict, which cannot be dealt with by any one side unilaterally.

This was the reason why, in 1949, when Nehru called in a representative of all Princely States to either present their own constitutions or comply with the Indian Constitution – Jammu and Kashmir was dealt with differently.

As Kashmir was a conflict pending resolve, Nehru accepted Sheikh Abdullah’s plea that Kashmir will be bound to the Indian Constitution only in matters agreed in the Instrument of Accession i.e. defence, foreign affairs and communications, while Kashmir would be autonomous in all internal matters – this was Article 370.

In 1952, as the Kashmir Issue was still being pursued by the UN, Nehru explained the Delhi Agreement to the Lok Sabha saying, ‘…the present Government of Kashmir is very anxious to preserve that right (that outsider cannot buy land in Kashmir) because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places…’, ‘so, we agreed and noted this down (that) the State legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State, more especially in regard to the acquisition of immovable property, appointments to services and like matters’ – this was Article 35A.

Now Nehru was being very polite here and diplomatically wrapped the flaring issue of the Kashmiri people – who were agitating against Indian control, resisting and protesting in the streets – in a concern for ‘delectable places’ only. This is exactly the kind of passivity up-taken by the RSS and BJP in the Kashmir Issue today. They have an over-generalized image of a Kashmir that is ‘not’ a conflict-zone, ‘not’ a state asking for self-determination, ‘not’ consisting of a populace that is always at wars with the Indian Forces controlling them – rather contrarily they want to portray Kashmir as a State stealing the rights of the people of India!

The current rouse over Article 35A is based on a petition against the State of Kashmir’s Constitution, filed by a Kashmiri woman, Charu Wali Khan, who seeks changes in the provision that denies property right to a woman who marries a person from outside the state. To this the Supreme Court sent notices to the Centre and State, making way for a ‘larger debate’.

All this is very good for raising the Indian conscience in regards to safeguarding the rights and bringing justice to a ‘woman’. But the sting of the matter is ‘what of the justice due for 12million Kashmiris asking for the right of self-determination? How can the Supreme Court of India forget the real-time situation of Kashmir?

Several political movements seeking independence from India have emerged in Kashmir since 1947. The key slogan for the movements that went on in the 1950s and 1960s was, ‘Hold the plebiscite now, holds it fast’. In the popular uprising that broke out in 1990 the slogan was, ‘Until a plebiscite is held, our struggle will continue’.

On March 1, 1990, more than a million Kashmiris marched up to the UNMOGIP headquarters in Srinagar, shouting pro-freedom slogans. They called for a ‘UN supervised plebiscite’ and the ‘right to self-determination’.

The uprisings and resistance have been ongoing since 1990. Again on August 18, 2008, a sea of hundreds of thousands of people gathered close to the UNMOGIP office in Srinagar urging the UN to intervene in Kashmir. They carried placards reading, ‘Stop Genocide of Kashmiris’, ‘Intervene UNO’, ‘Ban Ki Moon, Come Soon’, ‘We want Plebiscite’ etc.

Pakistan has fought three wars with India, the first two over Kashmir and the third over Bangladesh. The pretext of each war was that India was trying to pull off territory belonging to Pakistan. The UN role over the Kashmir Issue was put to a cold only after the third war in 1971, when India and Pakistan agreed in the Simla Peace Accord, on a bilateral solution to the Kashmir Issue.

From India’s point of view, this was a success – it had avoided any chance to give the Kashmiris any right of self-determination under UN pressure – now it would be easier to delay Pakistan, a smaller party. India also thought that time would allow it to change ground realities in Kashmir and it may be able to buy loyalties and culture consent in the occupied land in passing decades. It is true that time heals many wounds, but many wounds are such that turn malignant and eventually burst, bringing death to both the wound and the host.

Kashmir is such a wound – time is not its antidote – its cure is only the air of liberty and the breath of self-actualization.

Surely time erodes mountains; time brings back showers of life to dried, parched lands and bends the hearts. But to the severe misfortune of India, the hearts were only tilted away. Why?

Because there has always existed in the powerful elite of Hindu society an element that has harboured hatred and vengeance against Islam and its beholders, since history. This very, elite minority of the powerful has been the enemy of a united India from the onset. In the 1937 elections, this extremist sector of Indian society proved to the Muslim populace of the Subcontinent its detestation for the beliefs and identity of the Muslims. Their short-lived mandate forced leading pro-unity Muslims to change their mind and probe for a separate Muslim homeland and so this hatred caused the Subcontinent to be divided into two states – two states corresponding to two nations of uniquely separate identities.

After that, this same extremist sector got power with the creation of India as a Hindu state – thereof starting the next chapter of Hindu atrocities over a Muslim populace. Jammu and Kashmir since then became the laboratory for suppressing a Muslim population of 12million with a military force of 700,000 – to every 5 Kashmiris, there is an occupational force with the license to kill, rape, torture and getting rewarded for doing so, under the Armed Forces (Special Powers) Act.

93,801 extrajudicial killings, 6,996 in custody, 120,392 arrests, and 10,042 reported rapes, 6000 unmarked graves – these are only headings of uncountable tragedies and abuse that Kashmiris face day to day at the hands of a hateful Hindu armed force that quashes them. India re-proves the Two Nation Theory every day in Kashmir, it proves to the people of Jammu and Kashmir that it does not want assimilation or embrace, it wants submission, it wants servitude, and it wants it under permanent duress.

But freedom-lovers cannot submit, aspirant souls cannot be bounded in bondage, hearts cannot be chained. This love for liberty makes for the zeal that drives the like of Maqbool Bhatt and Afzal Guru to the gallows of the Tihar Jail in Delhi. This ‘no’ to submission causes the ruptures in the fabric of Kashmiri society that is identified as uprisings and separatism by the outside observer. Every young boy or girl that enters maturity is a separatist in Kashmir, every house is a safe-haven and every movement is an uprising.

Uprising is so often and ongoing in Kashmir that they are not cited as incidences but as periods of years or decades. The newest uprising starting in July 2016 with the killing of Hizbul  Mujahideen Commander, Burhan Muzaffar Wani at the hands the Armed Forces, still goes on. Since then protests, mob violence, stone-pelting and strikes have become everyday occurrences in Jammu and the Vale.

But to some extreme elements of Rashtriya Swayamsevak Sangh, all this does not come to any reckoning; all they remember is that over a millennium earlier all that was east of the Sindhu River was Hindu – Hindu meaning an aggregate of belief which has not really been defined as yet. How much people thought in all this time, how many choices they made, how exponentially knowledge increased and moulded human civilization – is of no concern to RSS and BJP. For them, if they are still Hindu, everybody else should also be still Hindu, and what better scheme could they think of to make Kashmir Hindu than diluting its demography?

Jammu and Kashmir is an international dispute; it has an autonomous Constitution and an autonomous parliament. India cannot be allowed to cheat its way into Kashmir, by buying out politicians, by harassing the populace or by enforced demographic change akin to genocide.

What will be life like for the Muslim majority of Kashmir if 35A is repealed? What if the Indian government gives incentive to the 700,000 Hindu armed personnel currently residing in Kashmir to buy land at cheap prices and settle there, bringing their families along, how will they treat the Kashmiris then? What if the countless Hindu billionaires arrange to buy all delectable lands, where would the Kashmiris be drawn to then? Will there be Kashmiri Bantustans or will there be ghettos? Or will there be another mass exodus of Kashmiris fleeing for their lives and dignity to the other side of the Line of Control?

 

Author is a geopolitical analyst. She tweets at @aneelashahzad. 

Disclaimer: Views expressed are exclusively personal and do not reflect the position or editorial policy of Oracle Opinions.

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