Abrogation of Article 370 and 35A

The beginning of this month marked two full years since India revoked Articles 370 and 35A of its constitution. This action formed the legal basis for the extreme repression and the decimation of civic life in Jammu and Kashmir. The repression continues unabated to this very day.

What is Article 370?

Article 370 delegates limited autonomy to Jammu and Kashmir. It allows the region to have its own constitution, flag, and autonomy on all issues except for international affairs. For a hundred years before the partitioning of India, Jammu and Kashmir were organized as a princely state, a distinct legal entity that was separate from the British Raj.

When the United Kingdom partitioned the subcontinent into Pakistan and India, it was assumed that Jammu and Kashmir, having a large Muslim-majority, would be more likely to join Pakistan. However, Maharaja Hari Singh tried to preserve his monarchic rule over the territory by taking advantage of the political tensions between Pakistan and India. He was under growing pressure from a Muslim rebellion in the western part of Kashmir. He offered for both India and Pakistan to sign the so-called Stand Still Agreement to buy more time to decide his own future. Pakistan readily signed the agreement but India, having set its eyes on occupying Kashmir by whatever means it could, refused to sign the document.

Tribesmen from Pakistan’s adjacent Frontier Province came to support their Kashmiri kin to deport the Hindu King. India used that intervention as an excuse to invade and occupy part of what has come to be the disputed region of Indian occupied Kashmir. Pakistan then pulled into the first war between India and Pakistan.
The Maharaja was forced to flee to the winter capital of Kashmir. India cajoled him into seeking their help and created the first-ever fake document, called the Instrument of Accession, which in fact was never produced in any international forum, including the United Nations Organization.

Kashmiri political leadership, under coercion, entered into an ad hoc arrangement with India under which Jammu and Kashmir would have an autonomous status. India repeatedly violated the provisions of the mutual agreements and then, in 1954, incorporated Article 370 into its constitution.

Thus, Article 370 was a way for Jammu and Kashmir to retain some degree of attenuated autonomy while at the same time being legally recognized as part of India.

Ending 35A protections

Article 35A of the Indian constitution would also give the region the ability to preserve its culture and confer special rights and privileges to permanent residents of the region. Jammu and Kashmir had historically used privileges under 35A to protect property from being owned by people outside of the region, voting, and protecting education and healthcare for permanent residents.

The abrogation of Article 370 meant the end of all 35A protections that were enacted.

The end of sovereignty

When someone tells you who they are, listen. The Bhartiya Party has long called for the end of Article 370, both in its party manifesto for the 2014 elections and in 2019. In 2019, the Parliament of India voted in favor of ending Article 370 and making Jammu and Kashmir a state within India without any special provisions.

That same day, Indian President Ram Nath issued a new presidential order stating that all privileges under Article 35A were to be voided.

The negative impact of this unconstitutional power grab on Jammu and Kashmir cannot be overstated. In the following two years, the Indian military occupied the region as well as arrested and unlawfully detained suspected militants, journalists, and political activists.

Illegal and Unconstitutional

To borrow a phrase, governments derive their just powers from the consent of the governed. In this case, it is abundantly clear that the actions of India do not constitute consent from the people of Jammu and Kashmir. Any change of political status or a change to the valley’s political status would require approval either by popular referendum or by a supermajority of duly elected representatives to declare changes to their governing structure.

This did not happen.

And the people of Kashmir do not accept, nor will we suffer, the whims of a Hindu nationalist party to dictate our future.

Not only has the High Court of Jammu and Kashmir declared that Article 370 cannot be abrogated, repealed, or even amended, but the Supreme Court of India has declared that Article 370 has acquired permanent status because of the way it was adopted to the Indian Constitution. But it was not within the power of the Congress or the President to revoke, because it was between the autonomous state of Jammu and Kashmir and India.

A dead letter

Since August 5th, the Modi administration has continued with their grand designs on Jammu and Kashmir. Even their calls for peace and restoration for normalcy have conveniently left out any mention of the restoration of Article 370 or 35A. It is clear that as long as the current government continues to sit in Delhi, nothing will change.

Also, there has been a systemic annihilation of the culture and people of Jammu and Kashmir. Government institutions have purged administrators perceived to be disloyal to India. Thus, if any stability does return, voices who call for a restoration of autonomy will still be silenced and excluded from the political process.

Put simply, for peace to exist in Kashmir, the first steps require that Article 370 and 35A be returned as part of any lasting settlement.

Self-determination has long been a dream but a denied reality in Kashmir. Since the partition, Jammu and Kashmir have been caught in a never-ending cycle of violence, intimidation, and bloodshed. Our voices, so long muzzled in the chess game of geopolitics, should no longer be silenced.

This is our home and our country. We must be the ones who chart its future.