PAKISTAN — KASHMIR SPECIAL STATUS: WHAT ARE ARTICLES 35A & 370?
By Vincent Lyn & Sardar Nouman Azam Khan
On 5th August, 2019 India scrapped a law that grants special status to Indian-administered Kashmir amid an indefinite lockdown and massive troop deployment in the disputed region. Minister of Home Affairs Amit Shah, a close ally of Prime Minister Narendra Modi, told parliament that the president had signed a decree abolishing Article 370 of the constitution, stripping the significant autonomy Kashmir had enjoyed for seven decades. The move further inflamed already hostile tensions in the Muslim-majority region of more than seven million people and infuriated rival Pakistan.
Article 35A of the Indian Constitution was an article that empowered the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to them. It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 — issued by the President of India under Article 370. The state of Jammu and Kashmir defined these privileges to include the ability to purchase land and immovable property, ability to vote and contest elections, seeking government employment and availing other state benefits such as higher education and health care. Non-permanent residents of the state, even if Indian citizens, were not entitled to these ‘privileges’.
The provisions facilitated by the Article 35A and the state’s permanent resident laws have been criticized over the years for their discriminatory nature, including the hardships imposed on immigrant workers, refugees from West Pakistan, and the State’s own female residents, who could lose their permanent resident status by marrying out of state.
Article 370 of the Constitution of India is described as a “temporary provision” that grants the state of Jammu and Kashmir a special autonomous status within the Indian union. Under article 370(1)(b), the Union Parliament can only make laws for the state, “in consultation with the Government of the State,” on certain matters that were specified in the Instrument of Accession — namely defense, foreign affairs, and communications. Other matters in the legislative subject lists can apply to Jammu and Kashmir only with the “concurrence of the Government of the State” through a presidential order. Article 370(1)(d) stipulates that other constitutional provisions may be applied to the state from time to time, “subject to such modifications or exceptions” made by the president of India, also through a presidential order, as long as they do not fall within the matters referred to above and except with the concurrence of the state government.
As a result of this status, the state of Jammu and Kashmir enacted its own Constitution, which was formally adopted by a Constituent Assembly on November 17, 1956, and entered into force on January 26, 1957.
However, the most important part of article 370 for purposes of recent developments is article 370(3), which gives the president of India the power to amend or repeal article 370 itself through a public notification (declaring that this article “shall cease to be operative or shall be operative only with such exceptions and modifications”), provided that “the recommendation of the Constituent Assembly of the State” is given before the president issues such a notification.
Most recently in November, 2021 the new wave of deadly attacks in Indian-administered Kashmir has brought back haunting memories of the 1990s, when militancy in the region was at its peak. Kashmir, a picturesque valley nestled in the Himalayas that is often lamented as a lost paradise, witnessed a total of 39 killings in October alone, including 13 civilians and several Indian soldiers and militants. After the attacks continued into November with the shootings of a policeman and a local Muslim shop staffer, New Delhi deployed an additional 5,500 troops into the valley.
The spate of attacks began on the evening of Oct. 5, when pharmacist Makhan Lal Bindroo was shot to death by Islamist militants in Srinagar, the capital of Indian-administered Kashmir. That same evening, a Hindu street vendor from an eastern Indian state was killed in one of the city’s bustling markets. Two days later, militants marched into a government-run school there and shot the principal and a teacher — a Sikh and a Hindu, respectively — at point-blank range.
Each killing carried a message. Bindroo’s family is among the last 800 Kashmiri Pandit families that remain in their ancestral region. In the 1990s, hundreds of thousands of Kashmiri Pandits — an upper-caste Hindu group native to Kashmir — fled the valley after receiving threats from radical Islamists to forcibly convert to Islam. Experts said Bindroo’s cold-blooded killing was meant to dissuade the diaspora Kashmiri Pandit community from returning.
The Resistance Front (TRF), the outfit that claimed responsibility for the attacks on Bindroo and others, is reported to have said it will attack any “stooges and collaborators” and “outside domicile holders” to discourage them from seeking residence and buying property in Kashmir. Around 400,000 Indian workers travel to Kashmir every year to work as carpenters, tailors, and masons. But ever since the Indian government revoked Kashmir’s special status in 2019, they can seek permanent residency.
Dilbagh Singh, the director-general of police in Indian-administered Kashmir, said the TRF is a front for the Pakistan-backed terrorist outfit Lashkar-e-Taiba and a local militant organization called Hizbul Mujahideen. “There is a pattern as they want to terrorize the minority community,” Singh told the Daily Excelsior. Lashkar-e-Taiba has carried out many lethal attacks in India, including the 2008 Mumbai attacks, in which terrorists killed as many as 166 people. Pakistan has steadily denied all charges of involvement in terrorist attacks against India.
Cross-border artillery shelling by both Pakistani and Indian military units has led to further victims, property damage, and tensions. Some claim that as many as 600,000 Indian soldiers operate in the entire Kashmir region to suppress the rebellion. Estimates of the number of lives lost since the current troubles began range from 20,000 to 60,000.
Following photos are the heinous crimes perpetrated by the Indian military on innocent Kashmiri women and children:
Kashmiris, for their part, are still waiting to sample the economic growth Modi guaranteed when he snatched their political autonomy. Many feel angry and frustrated that they were silenced into acquiescence by boots on the ground and the ever-looming fear of arrests by authorities.
The only solution that should be ruled out is doing nothing. Time will not heal the Kashmir problem. Time has made things worse in Kashmir. If a strategy for resolution of this conflict had begun in the early or mid-1980s then we probably would have averted some of the crises that arose later in that decade, and certainly would not regard Kashmir now as one of the world’s nuclear flash-points. To those who would argue that the situation is not ripe for a solution (a view expressed by senior officials in the Bush Administration) it should be pointed out that not only are one hundred million Indian Muslims held hostage by the fate of Kashmir (oddly, a favorite argument of those Indians who do not want to do anything), but in reality a billion people are held hostage by the dispute itself. Imagine what South Asia would be if India and Pakistan were to cooperate, not only on bilateral trade, water, and population issues, but on preserving the strategic unity of South Asia? Each would, then, be truly counted among the great regional powers. It would not be a question, as it is now, of Indian power minus Pakistani power, but of a formidable block of states, with some differences, but with even more in common.
As Lewis Carroll has suggested, if you don’t know where you are going, any road will take you there. That has been the quality of many proposals to deal with Kashmir. They suggest action on one or another aspect of the Kashmir crisis. But we do not know, now, which of the Kashmir-related problems must be solved first before we can tackle a second, third, or fourth. Thus, we should begin to move down several paths at once. Some will be clear right to the end, on others there will be obstacles. Certainly, it is better to find out where the obstacles are sooner rather than later. It would be prudent, therefore, to pursue the following six paths simultaneously. After a few years an assessment of how far we have gone along each route, and where, if any, are the shortcuts to a settlement.
Conclusion: Problems without Solutions, Solutions without Problems
While Kashmir consists of layers of problems we cannot assume that removing the source at each layer will lead to a solution. Certainly, nothing can be done about the original British decisions. That Kashmir has strengthened the conflicting identities of the two states is a fact that will not go away, and cannot be compromised. India and Pakistan can work around this history, but cannot rewrite it. However, Kashmir is nowhere near as important domestically in either state as it was a number of years ago, and the military/strategic issues embedded in the Kashmir conflict could be finessed by introducing various verification and inspection regimes, agreement on force levels, pullbacks, and so forth. More problematic are strategies to deal with Kashmiri separatism (plebiscite or referendum — and if either, on what basis?). But here, also, there should be general agreement between India and Pakistan that accommodating Kashmiri sensibilities should not be the prelude to the break-up of either state. So, in addressing the issue of self-determination the two sides should be able to achieve an understanding over ground rules and context.
An initial strategy of conflict-amelioration, moving across a broad range of issues, is suggested as the best that can be done now. Some of these problems may not be amenable to solutions (the tension between Indian and Pakistani identity, for example). And, there may be solutions in search of problems. Confidence building measures are not solutions to any particular problem, but address the difficulty of getting both sides to meet and talk.
However, the biggest obstacle to movement on any of the Kashmir sub-problems seems to be their perception of time. Clearly, all sides to a dispute need to agree on the need for a solution. Yet Islamabad and Delhi seem to be on a teeter totter — when one side is up, the other side feels that it is accelerating downward. As they briefly pass through a point of balance or equilibrium neither wants to negotiate since both believe that time is on their side, that they are just about to, or will after some time, regain the advantage. And what is the advantage?
Again, both sides seem to assume that the other will not compromise unless confronted by superior force. “Punjab rules” — a zero-sum game with a club behind the back — seem to dominate India-Pakistan relations. The greater Kashmir problem is getting both sides — and now the Kashmiris themselves, whose perception of how time will bring about an acceptable solution is not clear at all — to examine their own deeper assumptions about how to bring the other to the bargaining table, and reach an agreement.
On balance, we should be optimistic that this will be done. A review of the history of the issue, and of recent crises it has helped to generate convinces me that while South Asia has had its wars and man-made disasters, it is well-stocked with responsible policy-makers and that India and Pakistan have increasingly well-informed publics. In the face of greater internal economic and ethnic problems, India — and now Pakistan — have built democratic institutions that are the envy of many nations. They can, I believe, extend this success to their own relations. Outside powers, especially the United States, Russia, and Japan should be willing and capable at some time in the not-too-distant future to do more than stand by and watch.
Vincent Lyn
CEO/Founder at We Can Save Children
Director of Creative Development at African Views Organization
Economic & Social Council at United Nations
Middle East Correspondent at Wall Street News Agency
Rescue & Recovery Specialist at International Confederation of Police & Security Experts
Sardar Nouman Azam Khan
Sardar is a descendant from the family of the Mughal Empire. A true patriot to the State of Azad, Jammu & Kashmir and who I can call a dear friend and colleague. I wholeheartedly believe that Sardar should be given the opportunity to speak and address the United Nations and present the case to the Security Council on the issues that the people of AJK have been subjected to since 1948.