What You May Not Know About Kashmir and Articles 370/35A

What are Articles 370 and 35A?

Article 370 established the relationship between the central government of India and the state of Jammu and Kashmir — which also administratively encompassed the region of Ladakh. It essentially limited the Indian parliament’s legislative powers in the state to only defense, foreign affairs, and communications. Other aspects of legislative and constitutional authority ordinarily handled by the central government were also handed over to the state.

Article 35A was introduced through a presidential order (not parliamentary process) in 1954 to continue the old provisions of Article 370. It allowed Jammu and Kashmir’s legislature to define who would legally be considered a permanent resident. It also gave the state the power to limit the rights of non-resident, Indian citizens which translated to non-residents being prohibited from owning property, obtaining government jobs, and getting government scholarships or assistance in the state. Article 35A also decreed that no act of the state legislature passed under it could be challenged for violating the Indian Constitution or any other law of the land.

Wait, prior to the abrogation of Article 370 and Article 35A, residents of the Indian State of Jammu and Kashmir didn’t have the same rights and protections as other Indian citizens?

No they didn’t. Residents of the state of Jammu and Kashmir, though citizens of India, lived without the protection of the Indian Constitution and were governed by a separate set of laws, which in many ways granted them fewer rights and protections than other Indian citizens.

Some examples?

Under Indian law, women are not penalized for marrying someone from another state. Until the abrogation of Articles 370/35A, Kashmiri women who married someone from outside the state were discriminated against, being barred from owning property and their children being barred too.

Under Indian law, women have protection against domestic violence under a comprehensive act providing expanded definitions and legal remedies.  Until the abrogation of Articles 370/35A, Kashmiri women were excluded from this act.

Under Indian law, Muslim women are protected against automatic divorce or “triple talaq” in which the husband's repetition of the word “talaq” three times constituted a formal repudiation of his wife. Until the abrogation of Articles 370/35A, Muslim Kashmiri women were not afforded this protection.

Under Indian law, members of Scheduled Castes have access to a number of affirmative action programs for educational, economic, and political opportunity. Until the abrogation of Articles 370/35A, members of these historically disadvantaged communities from Jammu and Kashmir did not.

Under Indian law, children under the age of 14 have a right to education. It’s also illegal to marry children. Until the abrogation of Articles 370/35A, Kashmiri children did not enjoy this right nor were they protected against child marriage.

Under Article 35A, the indigenous Hindu Kashmiri Pandit population — after being ethnically cleansed from the state in 1989-1990 — was stripped of their permanent residency with no way of gaining it back. This cemented into law a massive demographic shift in the state, reducing the Hindu population of the region to a miniscule fraction of what it had been prior to the largest ethnic cleansing that occurred nearly 30 years ago. Thanks to the abrogation of Articles 370/35A, Kashmiri Pandits finally have hopes of returning to their ancestral homeland.

Under Indian law, it’s not illegal to be gay. Until the abrogation of Articles 370/35A, these laws didn’t apply to Kashmiri gay and lesbian individuals.

Under Indian law, a third tier of governance known as local-self-governance at the village level (similar to city councils), is accorded official legal recognition and certain protections to ensure free and fair elections. This system has not only placed local decision-making in the hands of local people, but has greatly empowered women across India’s the rural heartland. Until the abrogation of Articles 370/35A, the laws pertaining to local elections were not applicable to Kashmir.

Under Indian law, special agencies have been set up to combat corruption in government agencies and public sector businesses. Until the abrogation of Articles 370/35A, many of India’s anti-corruption laws were not applicable in Kashmir.

Are the recent moves to abrogate Articles 370/35A and bifurcate the state democratic?

Yes. Articles 370 and 35A were only intended to be temporary provisions, and were removed consistent with the Indian Constitution. Clause 1 of Article 370 itself allows for these provisions to be removed through Presidential order, as was recently done. The bill in the Indian Parliament repealing Articles 370 and 35A also passed with broad, multi-party support.

The reorganization of the state of Jammu and Kashmir into the Union Territories of Jammu and Kashmir, and Ladakh was also done through similar democratic means and a legislative and parliamentary approval process.

The moves will also ensure that all democratic laws passed in the Indian Parliament are applied to the residents of Jammu and Kashmir, and Ladakh, ensuring that they enjoy equal protection under the law and all the rights afforded other Indian citizens, regardless of gender, sexual orientation, religion, or social background, and have access to better educational and economic opportunities.

 

And consistent with India’s democratic system of checks and balances, the abrogation of Articles 370/35A and the reorganization of the state are now subject to independent judicial review and challenges to them will be heard by the Indian Supreme Court.

Didn't the Government of India need to consult the people of Jammu & Kashmir before repealing Article 370?

No, but Jammu & Kashmir and Ladakh are represented in the Indian Parliament and participated in the vote to remove Article 370, with some voting in favor.  

The text of Article 370 states: ““(3) ...the President may, by public notification, declare that this article shall cease to be operative…”

And, that’s what happened. The President of India publicly removed Article 370, with the Parliament overwhelmingly voting in support of the move — 351 to 72 in the lower house and 125 to 61 in the upper, with members of multiple parties voting in favor.

A small survey conducted in most parts of the state by CNN News 18 survey reflects trends similar to that of the votes. It revealed that 84% of the residents of Jammu and Kashmir support the decision to remove Article 370. 

You also can’t overlook the fact that the people of Ladakh — a mostly tribal population of Buddhists, Shia Muslims, and Hindus. They’ve been wanting to become a Union Territory for years, believing that their needs have been ill-met by the dominant politicians in the Kashmir Valley.

Why have people in Ladakh been wanting to split off from the rest of Kashmir?

Religious and political leaders in Ladakh had long called for separate Union Territory status for Ladakh and have always wanted to remain an integral part of India. Just eight months prior to the bifurcation of the state of Jammu and Kashmir, the Ladakh Autonomous Development Hill Council, representing Buddhists, Muslims, and Hindus in the districts of Leh and Kargil, unanimously passed a resolution demanding “complete autonomy from Kashmir's administrative setup.”

The people of Ladakh have complained of being socially, economically, and politically marginalized by state policies that favored the Kashmir Valley.

For instance, despite constituting approximately 60% of the land of the former state of Jammu and Kashmir, Ladakh was deprived of adequate funds in the state budget and infrastructure development projects frequently stalled. This had a deleterious impact on the primarily tribal population (90% of Ladakh’s population are tribals) living in the underdeveloped region.

And according to Jamyang Tsering Namgyal, a Member of Parliament from Ladakh, “Ladakh’s identity, language and multi-cultured demography has been neglected for many years…”

What is a Union Territory? How many other Union Territories are there? How are they different than states?

Prior to the establishment of the two new Union Territories of Jammu and Kashmir, and Ladakh, there were seven Union Territories across the nation: Andaman and Nicobar Islands, Chandigarh (the joint capital of the states of Punjab and Haryana), Dadra and Nagar Haveli, Daman and Diu, the National Capital Territory of Delhi, the Lakshadweep islands, and Puducherry.

Of these Puducherry and Delhi have their own legislatures, and Jammu and Kashmir is planned to have its own legislature as well — making them function very similar to states.

Those Union Territories without their own legislatures are governed directly by the central government of India. People living in Union Territories have the same rights and protections as all other Indian citizens.

It is possible for Union Territories to become states. The current states of Arunachal Pradesh, Goa, Himachal Pradesh, Manipur, Mizoram, Nagaland, and Tripura were all former Union Territories that later changed administrative status.

Why is Pakistan so upset about this? Isn’t this an internal issue for India?

The change of administrative status for the former state of Jammu and Kashmir into the Union Territories of Jammu and Kashmir, and Ladakh, is absolutely an internal issue for India.

Pakistan’s claim that India’s recent actions are provoking further conflict over the territory ignores the fact that Pakistan itself has been fighting an active proxy war over Kashmir, which legally and historically is an integral part of India. Pakistan has supported insurgent groups intending to terrorize and destabilize the region for decades. The most recent terrorist attacks in the region were all conducted by groups operating with the support of Pakistan or based there.

Given Pakistan’s decades-long provocation of armed conflict in Kashmir, it has little standing to criticize a change in administrative status in the areas of Kashmir on the Indian side of the Line of Control.

What is the status of Pakistan and Chinese Occupied Kashmir?

After Pakistan orchestrated an invasion of the former Princely State of Jammu and Kashmir in 1947 and the state legally acceded to India, Pakistan continued to militarily occupy a portion of the state. Pakistan refused to comply with the requirements of United Nations Security Council Resolution 47 and withdraw its military forces from the state, a necessary precondition before any plebiscite could be held. Since Pakistan never withdrew its military, it rendered the possibility of a plebiscite moot.

Pakistan continues to occupy 30,160 sq. miles of the former state (out of a total of 85,807 sq. miles), which is known as Pakistan Occupied Kashmir (PoK) and the Northern Areas or Gilgit-Baltistan.

In PoK, the Pakistani government has failed to provide basic rights and democratic representation to the Kashmiri people. Moreover, local Kashmiris are discriminated against, while Pakistanis are given preferential treatment. There have been reports of human rights violations by Pakistan’s military and ISI—including extrajudicial killings of at least 100 Kashmiri activists, rigged elections, and repression of Kashmiri political activists. These concerns have been echoed by the US State Department.

China controls a total of 16,500 sq. miles, of which 2,000 sq. miles in the Shaksgam Valley was ceded to them by Pakistan in a 1963 boundary settlement (which India does not accept). The remaining 14,500 sq. miles, known as Aksai Chin was seized by China during the 1962 Indo-China war. Chinese occupied Kashmir is predominantly Buddhist. Similar to other parts of Chinese territory, the residents enjoy few rights or freedoms.

What about cutting off telephone/Internet access, isn’t that needlessly draconian?

The communications blackout has no doubt made independent assessment of the situation difficult for journalists and civil society, as well made it difficult for people with relatives in Kashmir to determine their safety and whereabouts. That said, given the precarious nature of the situation on the ground, recent terrorist incidents, and the well documented use of social media to inflame communal tensions across the nation, the initial cutting off of telecommunications in the region, while certainly a decisive move, is a measure routinely taken by many governments to ensure safety and security.

We encourage the Government of India to re-open telecommunications as soon as possible.

What about detaining local Kashmiri politicians?

There have been reports of Kashmiri politicians being detained and placed under house arrest, such as Omar Abdullah and Mehbooba Mufti. Given their reported connections to separatist groups in the state, their detentions were preventative measures to ensure peace, law, and order and prevent widespread violence that would affect innocent civilians. Similar measures have been taken by previous central governments in order to prevent the flare up of violence in Kashmir.

We encourage the Government of India to release these politicians and life other restrictions in the state when law and order can be ensured and the lives and property of Kashmiris protected.

What about the protests? Hasn’t the police response been heavy-handed?

In the past several years of the Kashmir conflict, the response by local police and the military has been heavy-handed at times. Inadvertently, efforts to root out terrorist and insurgent groups, have increased hostility and resentment in the Kashmiri population.

We encourage the Government of India to abide by international human rights norms in all anti-terror operations, as well as to respect the rights of all citizens to peaceful protest.

It should be noted, however, that in videos of protests that have occurred since the abrogation of Articles 370 and 35A, many of the flags being waved by protestors are those of hardline Islamist groups such as Jaish-e-Mohammed and the Islamic State — groups whose ideology is fundamentally anti-democratic and repressive towards any community that does not submit to their extreme interpretation of Islam. Their goal in Kashmir is not the creation of a modern, secular, democrative state in South Asia, but rather a theocracy which would be in direct opposition to the principles of secular pluralistic democracy upon which India was founded.

How has the spread of Wahhabism in Kashmir impacted Kashmiriyat and Sufi culture?

The spread of Wahhabi ideology facilitated by the leading political parties - National Conference and People’s Democractic Party - has undermined the traditional Sufi form of Islam practiced in Kashmir and torn at the fabric of Kashmiriyat, a pluralistic Kashmiri identity and set of values shared by Kashmiri Muslims and Hindus. It has also led to attempts to impose edicts and rules that suppress free speech, women’s rights, and minority rights. Wahhabi funded groups have tried to segregate men and women and end coed education, restrict the use of social media, and shut down movie theaters and music programs. Militant Wahhabi groups have also targeted Sufi shrines and leaders.

Recent reports show that Saudi Arabia has promoted Wahhabism through a local organization known as Jamiat Ahl-e-Hadith and funded more than 700 mosques in the Kashmir Valley. According to Indian intelligence sources, Saudi charities have funneled large sums of money to Wahhabi groups in Kashmir through illegal hawala networks. Local Kashmir groups, such as the Jammu and Kashmir Peace Foundation (JKPF), are worried by the influx of Saudi influence in the state, and believe that Saudi funded madrassas and schools are indoctrinating their students in extremism.

Who are the Kashmiri Pandits?

Kashmiri Pandits are Hindus indigenous to the Kashmir Valley in the Indian State of Jammu and Kashmir. They are the original inhabitants of Kashmir and have a unique ethno-religious culture that dates back more than 5,000 years. Ancient Kashmir was renowned as a center for Hindu and Buddhist learning and had a majority Hindu population until the 14th century C.E. Invasions in the region, however, led to several historic mass migrations and cleansing of Hindus from Kashmir.

Between 1989 and 1991, over 350,000 Kashmiri Pandits were ethnically cleansed from the Valley (over 95% of the Valley’s indigenous Hindu population) as a result of a Pakistan-sponsored insurgency and campaign of targeted killings, rape, threats, and destruction of properties and religious sites. Public announcements were placed in newspapers, sermons made from mosques, and posters hung on houses ordering all Kashmiri Hindus to leave the Valley, threatening violence if they did not. An estimated 14,430 businesses and shops were destroyed, and more than 20,000 Kashmiri Hindu homes were destroyed, looted, or occupied. Additionally, several hundred Kashmiri Pandit cultural, religious, and educational sites have been destroyed, damaged, or illegally occupied since 1989.

For the past 30 years, thousands of displaced Pandits have lived in camps in Jammu and New Delhi as Internally Displaced Persons, while successive governments have failed to safely rehabilitate them to the Valley.

Will the abrogation of Articles 370/35A help the Kashmiri Pandits return to the Valley? Couldn’t they have been enabled to return by some other method?

The abrogation of Articles 370/35A was absolutely necessary to create the conditions for the full rehabilitation and resettlement of the displaced Kashmiri Pandits in Kashmir, after being ethnically cleansed 30 years ago. Law and order is critical to ensuring the safety and security of returning Kashmiri Pandits and their ability to re-integrate into the local population. And even though they are indigenous to the Kashmir Valley, after their displacement, they faced challenges proving permanent residence status, preventing them from buying or owning property or exercising their right to vote. The removal of Article 35A addresses both of these serious obstacles.

Read and watch more

HAF's One Stop on Kashmir

History of the Kashmir Conflict one-page brief

History of the Kashmir Conflict, Part 1 (Video)

History of the Kashmir Conflict, Part 2 (Video)

What you need to know about the struggle for peace in Kashmir (video)

Hindus of Kashmir: Past, Present. Future?