Why India needs a stronger Article 35A

Mumtaz Balkhi
Mumtaz BalkhiApr 09, 2018 | 18:10

Why India needs a stronger Article 35A

Any discourse on Jammu and Kashmir, if political in nature, must take a holistic view of the situation. That view includes the recognition that the state of Jammu and Kashmir is disputed between India and Pakistan as each side control parts of the territory, and both claim the region in its entirety citing historical accords.


Kashmir has been the source of wars and constant friction between India and Pakistan. The lingering dispute has pushed the entire state of Jammu and Kashmir, especially the Kashmir Valley, into vicious cycle of violence, a tide of human tragedies and sufferings. However, the violence in the region may take a new turn if the petition related to Article 35A of the Constitution of India is scrapped by the Supreme Court.


Article 35A empowers Jammu and Kashmir to define its permanent residents and gives exclusive rights only to its permanent residents to own property in the state, which is neither unique nor unprecedented in independent India.

The first point that begs explanation is defining the permanent residents of Jammu and Kashmir. The permanent residents are the indigenous people of Kashmir, who have been living since prehistoric Neolithic times in Valley and have a distinct ethnicity, culture and language.

The permanent residents also include other ethnicities and cultural groups spread across Pakistan Occupied Kashmir, Gilgit-Baltistan, inside Pakistan, and all over the world. Indian controlled Kashmir (the terminology "controlled" is applied to bring clarity in the discussion) has three regions, a Hindu-majority Jammu, a Muslim-majority Kashmir, and a Buddhist-dominated Ladakh. Pakistan controlled Kashmir includes Gilgit-Baltistan and Azad Kashmir (POK).

Before 1947, Muslim permanent residents formed the majority in Jammu, but Jammu now is minority Hindu dominated. Baramulla used to be the capital of unified Kashmir and most of the trade used to take place through the highway town of Baramulla. Currently, people who identify with the Muslim faith form the majority when the 20 million people spread across the disparate regions of Kashmir are counted together.


Interestingly, faith had never been a source of identify or friction in Kashmir.


The administrative set-up in which Pakistan and India administer their respectively controlled parts of Kashmir has been almost similar. For example, POK is administratively independent and elects its own prime minister, president, supreme court and constituent assembly.

While the Gilgit-Baltistan region had earlier been directly administered by Pakistan, it changed in 2009 with the presidential order termed as Gilgit-Baltistan empowerment and self-governance which helped in creating the G-B legislative assembly.

Overall, Pakistan has remained averse to alter unilaterally the status quo in the parts controlled by it. Pakistan up until now never made any serious attempt to formally integrate Gilgit-Baltistan or POK into its union or made any constitutional amendments to create Gilgit-Baltistan as their fifth province.

It is noteworthy that the people of Gilgit-Baltistan have long been demanding full integration with the union of Pakistan. In addition, no Pakistani from its four provinces can settle in the Pakistani administered Kashmir, which is almost similar to the spirit of Article 35A.

Indian controlled Kashmir had been administered under a similar set-up as POK up until 1953. Indian Kashmir used to have its own prime minister, president, and the Kashmir Assembly used to have greater legislative powers. After 1953, successive governments in New Delhi encouraged the oligarchy to extend numerous amendments to the state's constitution, stripping the state of its treasured autonomy. And, that perhaps is one of the main reasons that led to the political upheaval currently being witnessed in Kashmir.


Amending Article 35A is part of the same scheme. Any dilution is likely to result in no less than a political earthquake. People of the state recognise that if the Supreme Court of India decides to abolish Article 35A, it will open the gates to non-indigenous people who will be unrestrained to purchase land and settle in the state.

That will have devastating consequences not only for the indigenous people of the state, but also the fragile ecosystem of the Valley, which will be harmed irreversibly.

And, that will not be the only casualty; it will prove to be a precursor for faith-based disintegration of the state into disparate regions. To change the demography of the state has been the spirit and the intention behind to petition against Article 35-A.

The idea has been to change the demography and Muslim character of the state to ensure for future elections the emergence of a Hindu dominant government through gerrymandering. But, I consider that to be a misguided calculation and of lesser strategic value. What is strategically more important is the fact that the verdict will compromise India's claim over Pakistan administered regions of Gilgit-Baltistan and POK.


It is noteworthy that the American administration seems to have accepted India's position on the "disputed" nature of Gilgit-Baltistan and POK. The "disputed" nature covers the entire state providing the US administration the legal basis to oppose the China-Pakistan Economic Corridor (CPEC) related activities in Gilgit-Baltistan.

But with the scrapping of Article 35A that legal cover cannot be considered valid as it will amount to writing off the disputed status of the entire state as existed before 1947, and that according to the UN Security Council Resolutions passed in 1948, is still a disputed territory. Not only that, the Supreme Court's verdict will provide justification for Pakistan to alter the disputed status of Gilgit-Baltistan and POK on its own terms. It may force Pakistan to allow resettling non-indigenous people inside POK. Pakistan will be encouraged to provide more control of the Gilgit-Baltistan to China, legally.

That in turn should address the Chinese concerns regarding its investment on One Belt One Road project (OBOR) related activities in the disputed region. Another causality of the verdict can be India's future participation in OBOR/CPEC projects. If in future, India decides to become part of the OBOR/CPEC project and trade, POK and Gilgit-Baltistan could be the route that India may consider taking. And, perhaps the solution to vexed Kashmir issue may come from preserving Article 35A. I therefore hope that Supreme Court judges will take their decision wisely considering all the legal implications, unintended consequences, and international dimensions attached to their verdict.

Last updated: August 06, 2018 | 11:07
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