Controversial Colonialism: a broken society

In Backgrounder
January 14, 2021
Humda Qamar
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Historically, Article 35A was introduced through a Presidential Order in 1954 with regards to the old provisions of the territory regulations under Article 370 of the Indian Constitution, 1954. Article 370 is also the constitutional provision that grants Kashmir its special status within India. When the Indian occupied Jammu and Kashmir Constitution was adopted in

Historically, Article 35A was introduced through a Presidential Order in 1954 with regards to the old provisions of the territory regulations under Article 370 of the Indian Constitution, 1954. Article 370 is also the constitutional provision that grants Kashmir its special status within India. When the Indian occupied Jammu and Kashmir Constitution was adopted in 1956, it ratified the then two-year-old permanent resident law.

Article 35A of the Constitution is applied to the Indian Occupied Kashmir, including Jammu and Ladakh (IOJK). Under which it defines the permanent residents and the rights given to them. The Article is built upon definition of who shall be recognized as permanent residents of the State of Jammu and Kashmir. Conferring special rights to permanent residents, and imposing restrictions upon other people with respect. For the longest time, Article 35A remained unchanged. However, Article 35A has always been a source of contention between the Muslim-majority valley and the right-wing Hindu Bharatiya Janata Party (BJP) that governs India today.

On August 5, 2019, Narendra Modi manipulated the Indian Constitution to revoke the special status granted to Kashmir through Article 370 and Article 35A. Both of these provisions protected the people of the valley from Indian settlers moving into their land. This move was supplemented by the Jammu and Kashmir Reorganization Act, 2019 which split the territories into two regions to be controlled by New Delhi.

None of these actions took place with the consent of the people of Kashmir. The threat to Article 35A poses an existential threat to IOJK. Protection of permanent hereditary occupancy of land existed even a century ago. In the Valley of Kashmir, Walter Lawrence noted the curbs on alienation of hereditary occupancy of lands. “This right of occupancy is hereditary; but it is not alienable either by sale or mortgage.” It would be “dangerous” not to impose this curb; else “whole villages” would be sold for paltry sums.

This Article holds particular significance as it protects IOJK’s distinct demography and ensures that it remains India’s only Muslim-majority state. Observers believe the move to scrap Article 35A is driven by the desire of Hindu nationalist groups such as Modi’s BJP to end Muslim majority in IOJK. The article’s removal opens the door for mass Hindu migration and settlement in IOJK, akin to Israel’s occupation of Palestinian territory.

The revocation of Article 35A by the Supreme Court of India will have some far-reaching implications. The Supreme Court and Election Commission of India would be curtailed. The legal control over Indian occupied Jammu Kashmir would be limited only to matters of Defense, External Affairs and Communication. However, it will have to been seen whether the apex court in India would reverse the decision of the Indian government in IOJK. The removal of the article has been impactful for the people of Jammu and Kashmir, where former Chief Minister Mehbooba Mufti stated that any tinkering of the Article 35A will not be accepted and taken lightly. Any changes to the constitution would be akin to setting a powder keg on fire.

Conclusively, what comes into observation is that the Article 35A under the principles of Article 370, plays an imperative role for the people of Indian occupied Jammu and Kashmir. Any changes and compromises would deteriorate the freedom and security of Kashmir nationals. Degrading as the BJP government has been, it is difficult for the people to uphold any stature that was given to the people of Jammu and Kashmir through the Articles. It may be so, seen as the demise of a democratic Constitution