At the heart of Kashmir’s intricate history and narrative lay Articles 370 and 35A, provisions within the Indian Constitution that granted Jammu and Kashmir (J&K) a unique, semi-autonomous status. However, these articles were abrogated in August, 2019, causing intense debate, reigniting age-old questions about identity, belonging, and the path forward for this sensitive region. In a most recent development on 11 December, 2023, the Supreme Court of India upheld the decision of the abrogation, stating that Article 370 was a temporary provision and the state of Jammu and Kashmir never had any internal sovereignty to begin with. Article 370 had been an integral part of Kashmir’s history since 1949 and its revocation makes the future of the region uncertain.

To unravel the complexities of Articles 370 and 35A, it is important to rewind to the partition of the Indian subcontinent in 1947. Amidst widespread violence and displacement, Maharaja Hari Singh, the then ruler of Kashmir, initially acceded to neither India nor Pakistan. Instead, a telegram was sent to both dominions regarding a Standstill Agreement on “all matters on which these exist at present moment with outgoing British India Government” on 12th August, 1947. However, later on 26th October, the Maharaja signed the Instrument of Accession conditionally joining India with the understanding that its internal autonomy would be respected.

This was seen by Pakistan as an infringement of the ‘division formula’ set by the British which stated that Muslim majority areas of the Indian subcontinent will become part of Pakistan and others would form India. This contestation led to the UNCIP (United Nations Commission for India and Pakistan) decision to solve the issue by conducting a plebiscite in the state of Jammu and Kashmir but only after the Commission sees that the “cease-fire and truce arrangements…have been carried out and arrangements for the plebiscite have been completed”. The plebiscite is yet to take place.

Regardless of Pakistan’s reservations regarding the Instrument of Accession, the arrangement is what paved the way for Article 370, incorporated into the Indian Constitution in 1949. It outlined Jammu and Kashmir’s exceptional status, with the Indian Parliament’s legislative powers limited to defense, foreign affairs, communications, and currency. The state of Occupied Kashmir had the jurisdiction to make its own constitution, flag, and executive council, wielding considerable autonomy in internal matters. In simpler words, the residents of the state lived under different property and citizenship laws from the rest of the country.

The basis of Article 35A was laid down in the 1952 Delhi Agreement between India and the then-Prime Minister of Jammu and Kashmir, Sheikh Abdullah. All domiciled residents of Jammu and Kashmir were recognized as Indian citizens, however, under this agreement, the state legislature was empowered to define “state subjects” and confer them special rights and privileges, including property ownership and employment opportunities. Article 35A, signed in 1954, was seen as a fulfillment of this agreement.

In 1954, President Rajendra Prasad issued a Presidential Order under Article 370, introducing Article 35A. This provision empowered the Jammu and Kashmir legislature to define “permanent residents” or “state subjects” and confer special rights and privileges upon them. These included the exclusive right to acquire immovable property in Jammu and Kashmir, right to seek government employment and scholarships and, lastly, the right to vote in assembly elections. Article 35A, also known as the Permanent Residents Law, was viewed as a safeguard against any demographic change and protection of cultural identity. However, it also faced much criticism.

The implementation of Article 35A was itself controversial, with arguments against discrimination and potential limitations on economic development. One of the major criticisms against Article 35A was the undermining of women rights. It was argued that it discriminated against non-residents, particularly women who married outside Jammu and Kashmir, and their children, who would also lose these privileges. Therefore, abrogation in 2019 was seen as a step towards ending discrimination against non-residents and women who lost these privileges.

In order to issue articles similar to Article 35A, the governing party’s political views and ideology significantly influence the outcome. The ruling party in India at the time of the Delhi agreement as well as the issuance of Article 35A, the Congress, sought to maintain stability in Jammu and Kashmir and promote a sense of belonging within the Indian Union. Therefore, the interests of the Kashmiris were protected. However, the political party in office currently is Bharatiya Janata Party (BJP) which is widely known for its Hindu extremist policies and anti-muslim endeavours. Hence, the articles which were crucial for the survival of Kashmir were abrogated.

Removal of Articles 35A and 370 from the constitution was a part of BJP’s manifesto since before its 2014 tenure, therefore, the abrogation is simply the fulfillment of one of the promises it had made before coming into power. It is seen as a way to pander to its Hindu vote bank. With the repealment of these two articles, citizens from the rest of India now have the right to acquire land and settle permanently in Kashmir. Shortly before the abrogation in August, 2019, a senior BJP leader hinted that the government is planning on establishing exclusive Hindu settlements in the region leading to a demographic transformation which is exactly what the Kashmiris fear, especially now with the recent decision to uphold the abrogation in December, 2023.

Pakistan views this decision as illegal and illegitimate. Jammu and Kashmir is internationally recognised as a disputed territory therefore a single party to the dispute cannot take decisions regarding the future of the region. Kashmir enjoys an uncompromised special status under the Pakistani Constitution and the same was expected from the Indian side. The Indian decision to revoke Articles 370 and 35A was taken unilaterally which is not only against the international code of conduct but also undermines India’s own commitment to the issue. Pakistan needs to raise its voice for Kashmir’s cause on international platforms like the United Nations Human Rights Council (HRC) and International Court of Justice (ICJ) supported by other countries like China and members of the Organisation of Islamic Countries (OIC) and demand the UNCIP to conduct a plebiscite as promised as soon as possible. If Kashmir is given the cold shoulder again, then the world should prepare itself to witness another genocide.