On February, J&K Government sacked its lawyer Sunil Fernandes in purported response to the Supreme Courts December 16 order which ruled that the state had no vestige of sovereignty outside the Constitution of India thereby effectively surmounting the importance of the J&K Constitution. Fernandes had refused to file a review petition in the court as according to him no valid legal grounds for doing so were made out.
The top courts order had also made it clear that the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) would apply also to J&K, something that was disputed by J&K Government. According to State Government, only state subjects can own property in the state as per the provisions of the Article 370. Hence, the extension of SARFAESI Act to J&K is seen as a dilution of the special status of J&K as only J&K Bank is a state subject and the other banks cannot take over the property of their defaulters and own it.
The court orders like these are thus perceived as an infringement on the states constitutionally validated special position in the Indian Union. There is thus a paranoia about a perceived hostile centre allegedly conspiring to dilute Valleys Muslim majority character. It is bringing into full play the issues of land and identity, hitherto more or less dormant elements of the ongoing conflict which operated so far largely along political and militant dimensions. It is this sense of being under sustained legal and political assault that had brought people to bay just before the popular Hizbul Mujahideen commander Burhan Wani was killed on July 8.
But as Kashmir returns to normalcy, the anxieties havent disappeared. And with Supreme Court overturning the J&K High Courts October 2015 order which had drawn a parity between Indian and J&K Constitution, and ruling that J&K Constitution was subservient to Indian Constitution, the fear hasnt got even time to remain dormant for a while. And if the signals from New Delhi continue to stoke these anxieties, as is the case, another unrest may return sooner than we expect it.
There are already six challenges to the Article 370 and Article 35A which governs the Valleys state subject laws four in Supreme Court and two in Delhi High Court. For Sangh groups, it is Article 35A and not Article 370 which comes in the way of settling Indians from other parts of the country in J&K. They believe that the only way to resolve Kashmir issue is through a sweeping demographic change in the state. Last year, a petition against Article 35A was filed by an RSS-linked Think Tank J&K Study Group in Supreme Court. The petitioner seeks the repeal of the unconstitutional provision since it was added by Presidential Order and not by approval of the parliament.
The Article 35A was extended to the state through a 1954 Presidential Order. It gives protection to the state subject laws in J&K whereby outsiders are not allowed to settle or acquire property in the state. The legal challenge to such constitutional safeguards and the speculation about their apprehended outcome has created a fraught situation in J&K and if nothing is done to pre-empt this assault, Kashmir could be headed for another eruption sooner than later.
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