Erasing Kashmir’s autonomous status

In 1989, Indian-administered Kashmir broke out into an armed revolt for self-determination and independence from India. Since 2008 a civilian resistance, known widely as the “Kashmiri intifada”, is resurging. To date, more than 70,000 Kashmiris, both combatants and non-combatants, have been killed in Indian counter-militancy actions.

Now, there are renewed fears that Kashmir is going to lose the last vestiges of its autonomy through the removal of an article of the Indian constitution.  

In 2015, the ideologue of India’s ruling Bharatiya Janata Party (BJP), Hindu fundamentalist Rashtriya Swayam Sevak Sangh (RSS), backed a public interest litigation (PIL) in the Supreme Court seeking to repeal Article 35A of the Constitution. The court is expected to make a final decision on the issue in six weeks.

This article restricts non-natives of Jammu and Kashmir state from having immovable property or political franchise there. On the surface, the article seems preferential but it has an important historical context. Article 35A is key to Article 370, which is the original provision that established the quasi-autonomous relationship Kashmir has with India. 

The BJP is historically belligerent to Kashmir’s autonomous status and the RSS openly claims that Kashmir’s Muslim “majority” is “oppressive” and a “headache for the country”. The removal of 35A can facilitate a demographic change which BJP considers prescriptive for controlling the territory. Kashmiris fear what they call the BJP’s “Israeli model” to establish settlers that will favour Indian rule in the region.

Kashmir is in uproar.

The victim of Partition

The region of Kashmir is a festering wound since the partition of India by the British in 1947. Hari Singh, the Hindu Maharaja of the dominantly Muslim territory of Kashmir, which extended from Jammu province in South to Gilgit Baltistan in the northwest, initially remained undecided about acceding to either India or Pakistan. Even though there was an antimonarchy movement going on against him, the Maharaja hoped to stay independent. While the majority of Kashmiris wanted an independent state, the partition logic deemed they either join India or Pakistan. As the Maharaja’s indecision continued, partition violence engulfed the region and he was forced to flee and declare the accession of Kashmir to India. But this accession was fraught, conditional and temporary until a plebiscite was to be held.

OPINION: The partition – the British game of ‘divide and rule’

After a brief Indo-Pakistan war over the future of the region, the United Nations brokered a peace splitting Kashmir temporarily into two. What is now called Azad Kashmir became a semi-autonomous entity under Pakistan, and the Kashmir Valley and the provinces of Jammu and Ladakh ended up under Indian control. The UN promised a plebiscite to decide the final fate of the people.

A year earlier, all princely states including Kashmir were invited to send representatives to India’s Constituent Assembly, which was formulating a constitution for the whole of India. In a counter move to the Maharaja’s declaration of accession, Kashmir’s representatives in the assembly negotiated with the government of India the inclusion of Article 370 in the new constitution.

The fear of an Indian settler influx that would alter the demography of the region in India's favour is real for Kashmiris.

by 

Article 370 allowed Kashmir to retain autonomy in all matters, except defence, currency, and foreign affairs. It established a separate constitution and a separate flag. As a result of this article, all the provisions of the Indian constitution are not applicable in Kashmir and need the concurrence of the local government. Yet many Kashmiris saw this as a weak and unjust replacement for the plebiscite and one of the first sly moves by India to usurp the territory.

Unlike Article 370, Article 35A of the Indian constitution has a history prior to 1947.

Prior to 1947, Kashmir was a princely state under the British Paramountcy and the people living there were “state subjects”, not British colonial subjects. 

The Maharaja of Kashmir had proclaimed the Hereditary State Subject Order in 1927, granting the state subjects the right to government office and the right to land use and ownership, which were not available to non-state subjects. The law was constructed to protect the interests of the native ruling elites, mostly Kashmiri Pandit Hindus, from non-natives dominating the administration and buying or selling land in Kashmir.

The continuity of the state subject law had been a core condition in the autonomy negotiations with India. In 1954, a Presidential Order granted the Kashmiri legislature the right to define “permanent residents” and safeguard their privileges through Article 35A. For most Kashmiris, who abhorred the increasing Indian hegemony, the law meant at least their rights and resources would be relatively protected.

Fear of ‘land grab’

Since 1991, the Armed Forces Special Powers Act has become pivotal in controlling the region with 700,000 Indian troops. Today, the soldier civilian ratio of 1:8 makes Kashmir one of the most militarised zones in the world.

And if Article 35A is repealed, things can get even worse for Kashmiris.

The fear of an Indian settler influx that would alter the demography of the region in India’s favour is real for Kashmiris. Recently, in the election manifesto for the Kashmir’s state assembly, the BJP has promised to provide land at cheap rates for the establishment of colonies for retired soldiers. In July, the Goods and Services Tax, which is a single tax system across India, was finally imposed on Kashmir, much to the fear and resistance of people and constitutional experts who say that state’s fiscal autonomy has essentially ended. 

The renewed Kashmiri intifada in 2008 was triggered by the fear of “land grab” and what a Kashmiri political analyst Shiekh Showkat Hussain has called “demographic terrorism”. That year, the Kashmir government agreed to transfer 40 hectares of forestland to the Amarnath shrine, a Hindu pilgrimage site in the Himalayas. The proposal included setting up new housing facilities for the pilgrims. Kashmiris took to streets fearing establishment of separate settlements. The resistance leaders called the move “establishing a state within a state”. Parallels were drawn with the Israel Land Authority’s new constructions in Har Homa, East Jerusalem in 2005.

OPINION: Kashmir – the communalisation of a political dispute

Hindu fundamentalist parties continue to fan nationalistic flames to this day, heavily infusing politics with religion. Hindu pilgrims are mobilised to visit Hindu holy sites in Kashmir more as a patriotic duty than spiritual salvation. In 1963, about 4,000 pilgrims visited Amarnath; in 2015, the number has grown to about 200,000.

In 2015, the High Court in Kashmir passed a historic judgment stating the Article 370 was “permanent” and the Indian Supreme Court declared that only the parliament could remove the article.

Nevertheless, the BJP has always vowed to abrogate the Article 370 once they have the required majority. With their current strength in India, and dominance in Kashmir’s coalition government, the push for repealing Kashmir’s autonomy is increasing and 35A is first in the line. 

The gender justice argument

A lot of misinformation around these two articles is being disseminated to make a case for removal. The BJP leaders, including Prime Minister Narendra Modi, often invoke gender justice as an argument, which constitutional experts say is erroneous and misleading.

Recently, a case was filed in the India Supreme Court by a Kashmiri-Hindu woman, claiming Article 35A disenfranchises women, especially if they marry a non-resident man. In 2002, a High Court ruling in Kashmir made it clear that Kashmiri women would not lose their residency under any condition. Also, in the monarchial law or the new state subject law, there has never been any gender discrimination. But these facts are being sidelined in politically motivated cases for the removal of article 35A.

It is true that, in the 1960s, Kashmir’s Revenue Ministry began issuing residency certificates to women that were valid only until marriage. The ministry refused to renew the residency status of Kashmiri women who had married non-residents. But legal experts say this unjust proclamation has no basis in the Constitution and should not be upheld.

Also, the 2002 verdict made Kashmiri women’s residency rights clear. The only lacunae in the High Court judgment concern the rights of children born to Kashmiri women who are married to non-resident men. But, these rights are also being adjudicated at the moment. Despite this, the issue of gender discrimination continues to be used to rouse passions against Kashmir’s autonomy.

As the deadline for the Supreme Court decision on the petition for the removal of Article 35A approaches, the issue is snowballing into a nightmare for constitutional experts on both sides. Some legal experts say that 35A is beyond removal, while others disagree. Many believe that any tampering with Kashmir’s autonomy will revert the situation to its 1947 status and even make a plebiscite inevitable.

On the other hand, the Kashmiri masses have a “do or die” stance against the Indian rule and their movement stands strong, not just in demanding self-determination but “azadi” (independence).

Having faced India’s unjust political and brutal militaristic policies for decades Kashmiris have lost all fear. And even though the UN resolutions and constitutional law are on their side, they are preparing for the worst.

Ather Zia is a poet and a political anthropologist who teaches Anthropology and Gender Studies at University of Northern Colorado Greeley. She is the founder editor of Kashmir Lit. 

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.