Home >Opinion >Columns >Opinion | Revocation of 35A may ring alarm bells in other states

Readers of this column may recall discussions over splitting of Jammu & Kashmir (J&K) into Union territories under the direct control of New Delhi. I flagged it as a possibility in September 2016, after protests flared up after the killing of Kashmiri militant Burhan Wani. And again, in June 2018, right after the Bharatiya Janata Party (BJP) withdrew support to the Mehbooba Mufti-led Peoples Democratic Party (PDP). Indeed, with seismic developments over Article 370 and Article 35A of the Constitution earlier this week, it seems incredible that the BJP had actually entered into an alliance of convenience with PDP after a fractured mandate in assembly elections in J&K in 2014.

A couple of backgrounders on the matter—the split of the state and, implications of the abrogation of Articles 370 and 35A.

The flurry of the parliamentary debate and nationalistic chest-thumping has minimized talk of just how far back the split was considered. In the run-up to the J&K assembly polls of 2002, the Jammu State Morcha, a coalition of small parties and independent candidates, was guided by the Rashtriya Swayamsevak Sangh to demand statehood for the Jammu region. Indresh Kumar, a senior RSS official I met in Jammu at the time, as a part of election coverage for the news magazine India Today, claimed it was a logical move.

This logic has also existed beyond right-wing silos for several years. Essentially, it advocated trifurcation of J&K. Kashmir Valley its own entity; so too Jammu; and Ladakh a Union Territory. It was driven by an attempt to strategically isolate Kashmir from Jammu and Ladakh. With the BJP’s move in Parliament, this has now translated into bifurcation—of Jammu and Kashmir as one Union Territory, the other being Ladakh. The umbilical that still ties Jammu and Kashmir has already shored up support for the party from non-BJP nationalists and BJP hardliners alike.

While the bifurcation can bring hawkish deliverables, it is also being projected as necessary for economic development. Here, it must be noted that the BJP’s election promise to abrogate Article 370 and, in particular, annulling Article 35A on account of being “discriminatory against non-permanent residents and women of Jammu and Kashmir" and it being “an obstacle in the development of the state" has outstanding issues. Some analysts have pointed to Article 370’s effective demise proving to be a point of concern for other states, particularly in North-East India. But it’s not Article 370 that reflects various provisions and concerns in North-East India, but Article 35A, which resembles such provisions.

Article 35A, among its various provisions, granted special rights to permanent residents of J&K for: “(i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State …" and, of course, defining such residents.

This closely resembles Article 371A of India’s Constitution that permits for Nagaland primacy of “religious or social practices of the Nagas", “Naga customary law and procedure", “administration of civil and criminal justice involving decisions according to Naga customary law", and “ownership and transfer of land and its resources". Besides government jobs and such.

Similarly, Article 371C provides for administrative safeguards for the tribal “Hill Areas" of Manipur; while local laws safeguard the land and customary rights of tribal folk. Article 371G applicable to Mizoram is nearly a mirror of the provisions for Nagaland. Arunachal Pradesh restricts access, residency and ownership of property to outsiders. Special provisions also govern the rights of tribal folk and forest dwellers—although the latter is under severe stress on account of policies of the current central government—in other North-Eastern states such as Assam and Meghalaya. Indeed, ownership of property is also reserved in Uttarakhand, Himachal Pradesh, and parts of Jharkhand and Chhattisgarh, among other states. This discrepancy has been noted by such states. If Article 35A prevented development of J&K, and is therefore cauterized, then how can similar provisions aid development elsewhere? There are already vocal concerns about such matters in North-East India, where it is being linked to concerns of erosion of autonomy, property and livelihoods, at a time of great political flux in the region, with volatile immigration issues and several peace talks with rebel groups in progress. New Delhi will need to provide answers.

This column focuses on conflict situations and the convergence of businesses and human rights and runs on Thursdays.

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