Article 370, 35A to go? Why Centre may not budge on Jammu and Kashmir special provisions anytime soon

One of the biggest promises that the Bharatiya Janata Party (BJP) made in the run-up to the Lok Sabha elections was the abrogation of Articles 370 and 35A from Jammu and Kashmir. The partys official stand has been that both the articles have damaged the state more than benefitting it over the years. Ahead of the Lok Sabha polls, Prime Minister Narendra Modi and former Finance Minister Arun Jaitley spoke at length about how these special provisions have proven to be a stumbling block in the economic progress of Jammu and Kashmir. With the BJP emerging stronger than ever adding more muscle to Prime Minister Modis intent, there is natural anticipation on how and when the government moves on these contentious issues concerning the restive state of Jammu and Kashmir. Adding to the hopes of many of the BJP supporters is Modi choosing his most trusted lieutenant Amit Shah for the Home Affairs portfolio. A no-nonsense man, Shahs views on the special provisions are well known and is expected to act on his promise to scrap Article 370 and Article 35A. Yet, a look back at the governments actions in the last five years that it was in power offers little hope, point out those who have followed the developments in Jammu and Kashmir very closely. Kashmiri Hindu activist Sushil Pandit believes that there is no legal hurdle in removing Article 35A, but political hurdles remain. He says that senior BJP leader Arun Jaitley had once said that Article 35A should go the way it had come. Article 35A, which empowers the state to define permanent residents, was introduced by a Presidential order in May 1954. So going by Jaitley, this article can easily be removed by the President. However, nothing much has actually moved in the last five years. Article 35A in Supreme Court Article 35A was inserted through a presidential order. It did not go to Parliament. Thats why its validity has been challenged in the Supreme Court. A plea challenging the special provisions was submitted before the apex court in August 2014. Sushil Pandit says that the then state government of PDP-BJP submitted an affidavit saying there was no need to review it and demanded that the court reject the petition. The BJP did so because it had committed in its agenda of alliance with PDP that it would not take any action against the special provisions granted to the state. This irked many Kashmiri activists who wonder why would any party make such a compromise just to form its government in a state, especially when it claims to be serious about removing these provisions. Asked by the Supreme Court to put forward its views, the Centre said that it needed some time to submit its response. After six months, the Centre asked for another six months. The government kept saying that it had to consult. This way, the Centre took six extensions and wasted three years. Mukul Rohatgi was the Attorney General, Pandit said. Then came the new Attorney General KK Venugopal. On the seventh date, Venugopal said that the central government did not have any view on this, therefore, it will not file any affidavit. Venugopal said it was up to the Supreme Court whatever it wanted to decide, Pandit said. In the meantime, the BJP-PDP government fell and Governors rule was imposed. The then Governor NN Vohra urged the apex court to defer the hearing as there was no elected government to represent the state. The next Governor Satya Pal Malik filed another petition seeking more time as he was planning to conduct local body elections. Since then, the matter has not been heard in court. Pandit says that the BJP was honouring its commitment when it was in power in the state. But even after breaking up with PDP, the central government through its governors made sure that the case is not heard in the apex court. First, the Centre obstructed the court proceedings by taking extensions after did not even give its views. And then it made governors submit pleas seeking deferment of the case. The Centre deliberately delayed the matter in the Supreme Court, Pandit alleged. The way Article 35A was introduced is itself a big controversy. Because under Article 368, nothing can be added or deleted in the Constitution without the Parliament going through it. And the Parliament was not kept aware of it, forget discussing, debating or approving. It was never mentioned in Parliament that this has been done, Pandit says. So in this backdrop, all the Centre needed was a presidential proclamation to do away with the provision. However, the government did nothing.because it is very serious about not touching it. I would like to be proven wrong but have very little hope on Article 370 and 35A, Pandit says. Article 370 and 35A in BJP Manifesto We reiterate our position since the time of the Jan Sangh to the abrogation of Article 370.We are committed to annulling Article 35A of the Constitution of India as the provision is discriminatory against non-permanent residents and women of Jammu and Kashmir. We believe that Article 35A is an obstacle in the development of the state. Arun Jaitleys speech on Articles 370 and 35A In a speech delivered at Delhis India Habitat Centre in January 2014, former Finance Minister Arun Jaitley had said that Article 35A should go the way it had come. There is a sub-provision of Article 370 that says: Through presidential order, you can insert a special provision for Jammu Kashmir. Its not a legislative provision of the constitution. Someday this provision (35A) will go. Now the legal complications for it to be removed are so much that limitation has been imposed on the power of article 368 under which an amendment can be brought. Now it depends on political thinking that it be removed or end. If unfortunately, it survives then even today the government has the flexibility that will dilute its impact. It is still possible to dilute it into extinction. And the answer to that: (If) article 35A goes out the way it had come – the impact of 370 itself is diluted into extinction. I think eventually it should go. Its impact should be diluted.