Legal and Political Aspects of Article 35-A

Legal and Political Aspects of Article 35-A

The challenge to the constitutional validity of article 35A has both legal and political aspects. However, timing of the petition and the right wing background of the petitioner points to the broader ideological underpinnings behind it.
From the legal-constitutional point of view the contention is that 35-A being an exception to the constitution should have been incorporated via a constitutional amendment instead of a presidential order. It is also claimed that Article 370 is intended to be a temporary provision of the constitution.

Article 35A had been promulgated in 1954 under the 370(1)(d) which empowers the President to make exceptions to the constitution in its application to Jammu and Kashmir. The constitutionality of the said provision has been upheld by the Supreme Court of India in the Puranlal Makhan Lal case. The current petition challenges 35A on the ground that it was not an exception to any article of constitution but a new article altogether. On the face of it, this is a very weak base to build a case upon. Add the fact that the Indian constitution has many special features for states other than Jammu and Kashmir too and the case looks weaker. However it’s the politics more than legal nitty gritty that will decide the outcome.

So what is the politics behind the petition? The answer is very clear if we look at the background of these petitioners. It is an NGO led by right wing activists. Now Sangh Parivar -the spectrum of right wing Hindutva is a wide and diverse enterprise. It has presence in every aspect of the social milieu in India from media, business, think tanks, sports, gau raksha samitis, paramilitary organisations, publishing houses, bar associations, civil services coaching institutes, trade unions, student unions, publishing houses and political parties. BJP, it’s political representative is the most visible but in reality it is just a tip of the ice berg.

Most of this presence is in the form of ostensibly independent organisations. This independence is for tactical reasons mainly to hide the background, to smoothen the rough ideological edges, to increase the space for manoeuvre, to appeal to a wider cross section of the society etc. In reality most of these organisations are organically linked, the independence being only in name. These organisations are led and manned by RSS cadre which acts as a feeding centre for them.

There are a few issues which could be said to be the core issues of the Hindutva movement in India. These include cultural nationalism, Ram Mandir, uniform civil code and Article 370. The Parivar has seen the special status as an affront to the nation since the time of independence. It’s post independence hero Shyama Prasad Mukherjee lost his life in the ‘one country one constitution’ agitation in Jammu. Whatever BJP might have agreed under the Agenda of Alliance does not bind its parent or sister organisations from pursuing agendas so close to their heart.

The alliance with PDP was in any case a strategem to pull it into a suffocating bear’s embrace. RSS is a very patient organisation. It is willing to wait, to adapt, to metamorphise and then to strike at the right moment. BJP’s purported moderation of RSS agenda is a ruse to make it palpable to the wider audience.

In some sections it is believed that the Indian state knows that tempering with the demography in Jammu and Kashmir is highly infeasible at the moment. The security situation on the ground and the spectre of war with neighbours are the reasons for the same. What then explains its enabling of the questioning of the provisions that safeguard the demography? The answer lies in the interest of the state to change the narrative from Azadi to Autonomy in Jammu and Kashmir. This hypothesis may or may not be right.

What is true however is that the agenda of the Parivar towards the Kashmir issue is clear. It’s permanent solution to Kashmir problem is increased militarisation, zero tolerance for ‘separatism’, forceful assimilation and possibly demographic change. However it is in no hurry and is willing to bide it’s time. In the meanwhile it is making good use of the disturbance in the state to supplement it’s polarisation agenda in the mainland. Brash and rude penalists of doubtful backgrounds from Kashmir have been hired to fight shouting matches with right wing Indian penalists. This serves the right wing agenda by reinforcing the Muslim and Kashmiri stereotypes that it has done so much to embed in the social milieu of India.

Author can be reached at tayabbanna@gmail.com.

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

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