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Article 35A bars outsiders from acquiring land in J&K: Experts

Wednesday, August 9, 2017
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‘Abrogation of this article will be last nail in coffin’
Lawyers and constitutional experts in Indian held Kashmir are of the opinion that after the implementation of Goods and Services Tax (GST) by India, a campaign has been launched to abrogate Article 35A, which grants special status to Jammu and Kashmir.

These lawyers and constitutional experts in their media interviews said that with the abrogation of Article 35A of Indian Constitution, the little that remains of Jammu and Kashmir’s special status would also go.

A petition was recently filed in the Indian Supreme Court by an RSS-backed NGO claiming that Article 35A, in existence for last more than six decades, violated the right to equality enshrined under Article 14 of the Indian Constitution.

The JK government filed a counter-affidavit seeking the dismissal of the 2014 petition, but the Government of India did not. Then Attorney General KK Venugopal told the court that the government of India “wanted a larger debate on it”. He also asked that the matter be referred to a larger bench, given the constitutional issues in the case, following which the apex court referred the matter to a three-judge bench and reportedly set a six-week deadline for its disposal.

The next hearing of the petition is in September. Fali Nariman will plead the case on behalf of J&K govt in the Indian Supreme Court.

Constitutional lawyer Tasaduq Hussain was quoted by Srinagar-based English daily Kashmir Reader as having said that the People’s Democratic Party (PDP)-led government had allowed the state’s financial integration with India by passing the GST bill. He said the government is now further paving the way for political and administrative integration of the state with the Indian union.

“The final outcome of this process will only depend on the ruling of the Supreme Court. They have to decide whether they will abrogate Article 35A or not,” Hussain said. “However, it has become evident that the RSS and BJP are taking legal means to abrogate the Article. If it is removed, they will say they were not responsible as it was done through the court’s ruling. The abrogation of Article 35A will lead to the state’s complete merger with the Indian union. You can say it will be the last nail in the coffin of Article 370.”

Hussain said that Article 370 had been reduced to an “empty shell” by successive JK governments that gave concurrence to central laws in Kashmir. “There is nothing left in Article 370. The centre has now more powers than just control over foreign affairs, communications and currency, as enshrined in Article 370,” he said.

Hussain said that Article 35A gave Sheikh Abdullah, the first prime minister of Kashmir after 1947, guarantees in 1954 that land ownership would only be permitted to subjects of the state, and it would be the state that would define state subjects and only state subjects would be employed in government services in J&K.

“There were a few Indian Administrative Services (IAS) posts for outsiders under a special cadre. For the rest, employment had to be from within the state,” Hussain said. “If Article 35A is abrogated, it will change this scenario. Anybody from India will be able to buy land in Kashmir. And anybody from India could be employed in government services in Kashmir. The BJP and RSS are working towards the complete integration of the state with India.”

Political analyst and Professor of Law at Kashmir Central University, Dr Sheikh Showket Hussain, said that “we often mistakenly believe that outsiders can’t purchase land here due to Article 370. It is actually Article 35A that bars non-state subjects from purchasing land and getting employment here.”

“It seems the idea of the petitioners is to stealthily abrogate 35A though a court order, as it would not then create a hue and cry. Article 19 of the Indian Constitution guarantees freedom of movement and residence throughout India for its citizens. The petitioner had been planning to invoke this Article in the Supreme Court so as to repeal Article 35A,” Prof Hussain said.

He said that if Article 35A was abrogated, it would redefine the relation between India and Kashmir. “The relation would automatically revert to the pre-1953 position,” he said.

“The problem is that the state government is taking dictation from the centre and is implementing all its laws, like they recently did in the case of the GST. Five IAS officers are taking policy decisions and the ministers seem to be helpless,” he added.

Senior lawyer of High Court Zaffar Shah said, challenging Article 35A in the Indian Supreme Court is a very serious issue. “In totality of all the circumstances, I believe that the people of Kashmir would unite to defend Article 35A.”

Meanwhile, lawyers from Pir Panjal area of Jammu region said that the abrogation would not only hit Kashmir but would also affect Jammu and Ladakh.

Member of J&K Assembly, Engineer Rasheed said that by allowing the extension of New Delhi-legislated laws to Kashmir, the PDP-led govt was razing Jammu and Kashmir’s special status brick by brick.

Source: Kashmir Reader, Kashmir Media Service