History of the Kashmiri Occupation (Pt.2) – How Kashmir lost its autonomy

Jul 5, 2023 | Blog, Monthly Blogs

The modern state of Kashmir has never known freedom – its people and its culture are always a pawn sacrificed in the chess game of the world powers.

In our last blog, we explored the partition of India and the violence and genocide that erupted from a divided subcontinent. Kashmir did not survive the violence intact and would be divided between India, Pakistan, and China.

With Jammu and Kashmir’s accession to India – the region was promised autonomy to govern itself and preserve its unique heritage, but as we will see in this blog – that promise turned out to be made of wind.

The origins of Articles 370 and 35A

In the aftermath of the partition, as India organized itself into a federal republic, questions emerged as to how to maintain the sovereignty of the valley with limited integration into India.

The answer was Article 370 of the Indian Constitution.

Under its provisions, Kashmir would have its own Constitution, with its own legislative assembly, prime minister, and flag. However, all citizens of Kashmir would be citizens of India and elect their members to the Indian Parliament to represent their interests. India would also be responsible for defense and international relations.

The drafting of Article 370 called for the Constituent Assembly of Jammu and Kashmir to choose which provisions of the Indian Constitution would apply to Jammu and Kashmir as a whole. More importantly, the Constituent Assembly would, through a free election, choose whether the people of Kashmir would join the State of Pakistan or India for its final accession.

An important factor also was that the Constituent Assembly could vote to abrogate 370 and have the entire Constitution apply.

It chose not to.

India has the world’s longest Constitution – consisting of 448 Articles. By way of comparison – the United States has the world’s shortest, consisting of only seven articles.

The Constituent Assembly voted that only two Articles of India’s Constitution had force within Kashmir – with limited availability for others.

Early presidential orders modified this arrangement under the demand of Kashmiri leadership with the Presidential Order of 1954, which incorporated Article 35 A, which empowered them to define special rights for permanent residents. It also extended the fundamental rights to Kashmiri citizens and extended the jurisdiction of the Indian supreme court to the region.

While the agreement with India was by no way perfect – as outlined, it would provide a way in which Kashmir could preserve its heritage and govern itself.
Unfortunately, this situation would not last.

Death by a Thousand cuts

Almost immediately, India began to backtrack on its constitutional obligations. The Presidential Order of 1954 was continuously amended and changed to apply more and more of the Indian
Constitution to Jammu and Kashmir.

Not ten years after the order, Prime Minister Jawaharlal Nehru expressed his desire to fully erase Article 370 and annex Kashmir.

Article 370 has been eroded even under the previous regimes, but now Kashmir stands fully decimated. We feel that the impact of this process of gradual erosion is still going on. Some fresh steps are being taken, and in the next month or two, they will be completed.

They wasted no time eroding Article 370. Through sometimes complicated and intricate political maneuvering – changes were made that not only applied more of the Indian Constitution to J&K but also eliminated the concept of self-rule in Kashmir.

The region’s Constitution was superseded by executive orders from New Delhi. Officials were replaced with ones that would be compliant with New Delhi’s wishes.

In 1965, the Indian Congress passed the Constitution of Jammu & Kashmir (Sixth Amendment) Act. With this unilateral amendment, Sadar-i-Riyasat (President of the State) of Jammu and Kashmir was replaced with a governor that could be controlled by New Delhi. This governor had the authority to amend the state constitution and would be compliant with India’s dictates.

Ultimately, the Prime Minister of J&K found their office downgraded to the role of Chief Minister. In time, the region would even be denied a Chief Minister.

Year after year, autonomy continued to be stripped away from the people of Kashmir, and self-government became impossible. Before Article 370 was abrogated, over 260 Articles of India’s Constitution had been forced upon the region, and the Presidential Act of 1954 was amended over forty-seven times.

2019: The end of 370

The long-term erosion of the fundamental right to self-government and self-determination made the abrogation of Article 370 nearly inevitable. For 65 years, New Delhi schemed, undermined, and occupied Kashmir. Their goal was always to make the region a state under their control.
Modi supercharged their efforts. While ending autonomy was easy, what he did was far worse than mere constitutional violations.

Through the continued use of settler colonialism, he has ruined the lives of Kashmiri Muslims and those who oppose the Hindu nationalist takeover. It is clear his government views the region as a Hindu-only territory, and he will replace the population and imprison those who resist.

Final thoughts: A legislative coup

Kashmir has been amended out of existence. When the voices of the people are silenced, when they are deprived of the ability to make changes to their government, freedom, and autonomy become a bad joke.
To add insult to injury, the Indian Supreme Court did nothing to stop these blatant constitutional violations. It’s unlikely they will ever summon the will, especially since the BJP has co-opted all the branches of the government.

What’s important to remember is this: This erosion of Kashmir’s self-determination is illegal. Only the Constituent Assembly had the power to abrogate Article 370, and it dissolved itself without doing so.

The abrogation of 2019 is illegal because neither the Prime Minister nor the Indian Congress had the right to do so, and years of constitutional erosion had no basis in law.

All of it is illegal.

It should be repeated until the world listens. What India is doing in Kashmir is illegal.

Remember that.