De-linking polls from Article 35A debate: HAS GOVERNOR OFFERED OLIVE BRANCH TO NC, PDP?

  • Javaid Malik
  • Publish Date: Oct 1 2018 4:31AM
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  • Updated Date: Oct 1 2018 4:31AM
De-linking polls from Article 35A debate: HAS GOVERNOR OFFERED OLIVE BRANCH TO NC, PDP?Representational Pic

The Governor’s administration in Jammu and Kashmir has tried to delink the forthcoming panchayat and municipal elections from the Article 35A controversy. It has extended an olive branch to National Conference and Peoples Democratic Party by hinting that the hearing on the Article 35A case could be deferred till an elected government returns.

The legal validity of the Article 35A has been challenged by the different groups and the matter is being heard by the Supreme Court. The Article 35A empowers Jammu and Kashmir Legislature to decide who are permanent residents of the state and confer on them special rights and privileges in public sector jobs, acquisition of property in the state, scholarships and other public aid and welfare.

A Non Government Organisation ‘We the Citizens’ which many people believe enjoys the support of the rightwing groups, has filed a petition in the Apex Court claiming that Article 35A is “illegal” as it was added to the Constitution without being presented before the Parliament.

A Supreme Court lawyer Charu Wali Khanna has also filed a petition challenging the Article 35A stating that the Article is also “discriminatory” against women.

The case was listed for hearing twice in August this year but on both the occasions the hearing was deferred. On August 6, 2018, case was deferred till the last week of the month. When the case was heard again on August 27, 2018 Jammu and Kashmir government pleaded that the hearing should be postponed till the panchayat and municipal elections are held in the state. The Apex Court conceded to the request and postponed the hearing till January 19, 2019.

Soon after the hearing was deferred, two major Kashmir based political parties National Conference and Peoples Democratic Party announced that they won’t participate in the forthcoming panchayat and municipal polls till the government assures them that the Article 35A would be defended in the Supreme Court and will be protected at any cost.

Initially Governor’s administration did not react and expedited the preparations for the polls. It created a notion that PDP and NC hardly matter and their non-participation in panchayat and municipal polls won’t affect the government. However, on September 25, 2018, Chief Secretary B V R Subrahmanyam addressed a news conference in Srinagar and put forth the view of Governor’s administration vis-à-vis Article 35A.

“The State government’s stand on the legal challenge to Article 35-A of the constitution before the Apex Court will remain consistent that an elected government should plead the case before the court,” the Chief Secretary said.

“As far as Article 35-A is concerned, the Governor (Satya Pal Malik) has gone on record multiple times saying that this is not an elected government and it will be right if an elected government within the state actually fights the case in the Apex Court,” he said.

Many people believe that J&K government has tried to pacify the Kashmir based parties by hinting that Article 35A would stay till Governor’s rule continues in Jammu and Kashmir. “Both the parties (NC and PDP) wanted the Government to clear its stand on Article 35A. The Chief Secretary has done it by stating that the J&K Government would tell the Supreme Court to defer the hearing till the elected government takes over the reins of the state,” said an analyst.     

The Chief Secretary also maintained that there was no link between the timing of holding panchayat polls in the state and deferment of hearing of the PIL challenging Article 35A in the Apex Court.

It is in place to mention here that NC and PDP while announcing their decision to boycott the forthcoming panchayat and municipal polls had claimed that “J&K government pleaded in the Supreme Court that it (SC) can take a call over the validity of the Article 35A once these elections are over and the hearing has been deferred to ensure that these elections are held.”

Kashmir based politicians also took a strong exception to the argument put forth by the Additional Solicitor General Tushar Mehta in the Supreme Court. They accused Mehta of “going beyond his brief.”

During the hearing of the case in the Supreme Court, the ASG Mehta had said that Article 35A and certain aspects needed to be debated upon. “It can’t be denied that there is an aspect of gender discrimination in it (Article 35A),” Mehta had said.

Mehta’s remarks triggered a furore in Kashmir following which National Conference called an All Party Meeting in Srinagar on September 13, 2018. After the meeting ended National Conference vice-president Omar Abdullah said that all the leaders were of the opinion that Mehta should be shifted from the case when the matter comes up for hearing in January 2019. “All the leaders in unison observed that the ASG Mehta crossed his brief. Even the state government has accepted this. So we don’t trust him. We have all decided that Tushar Mehta should be taken off the [Article 35A] case,” Omar had said.

He had said Mehta was sent to defend the state and the Article 35A case as he was representing state government and not the Central Government.

He had demanded that the lawyers who were defending the case earlier must be brought back. Omar had also demanded that the case should not proceed until J&K has an elected government.

It took nearly 13 days for the State Government to respond to the demands which were raised during the All Party Meeting (APM) convened by National Conference. The Chief Secretary did not comment on whether Tushar Mehta will be shifted or not but he made it clear that Governor’s administration would try to stay away from the controversy by pleading in the Apex Court that elected government should be allowed to defend the case. “It looks like that Governor’s administration has agreed to one of the suggestions which the leaders had put forward during the APM,” said a politician.      

He was of the opinion that the State Government adopted “wait and watch policy” to check the response the poll announcement evokes. “The response in Jammu and Ladakh regions has been good but in Kashmir it has been poor. It appears that people at the helm have realized that National Conference and Peoples Democratic Party staying away from these elections have rendered the entire process meaningless at least in Kashmir,” the politician claimed.

He was of the opinion that the Chief Secretary by endorsing the views of NC and PDP has made a last ditch attempt to make them join the poll fray.

A Kashmir watcher said that it’s for the first time during the past four months the Jammu and Kashmir Government has extended a “hand of friendship” towards the mainstream parties in the Valley. “The developments which have taken  place since the imposition of Governor’s rule in the state were making people believe that New Delhi has dumped the Kashmir based parties and it’s not interested in taking them on board,” he said. “Soon after the panchayat  and municipal polls were announced most of the politicians were hoping that Governor Malik would call an All Party Meeting and seek the opinions of the leaders  vis-à-vis holding of these elections, but it did not happen.”

After being “ignored” the mainstream politicians alleged that a few bureaucrats “misled” Prime Minister Narendra Modi, who during his Independence Day speech from the ramparts of Red Fort announced that panchayat and municipal polls would be held in Jammu and Kashmir.

After turning their back towards the Kashmiri politicians people at the helm have “softened their stand” and have made an attempt to reach out to them. It’s possibly the first step towards reconciliation with the politicians, who during the past few months were made to believe that they don’t matter anymore.