Commentary  Kashmir on Lockdown as India Strips Away Independence

Repeal of Articles 370 and 35A Continues India's Settler-Colonial Project

On Tuesday August 6, Lok Sabha, the Lower House of the Indian Parliament, passed the Jammu and Kashmir Reorganisation Bill. The Bill had already been announced and passed a day prior in the Rajya Sabha (Upper House) by the Home Minister of India, Amit Shah. In its essence, the Bill unconstitutionally repeals Article 370 and Article 35A of the Indian Constitution, removing the “special status” of the Indian-occupied state of Jammu and Kashmir (IOK) and instead splitting the area into two union territories.

For decades, Jammu and Kashmir (J&K) has been occupied by India and Pakistan. Following the partition of British India, wars between India and Pakistan over J&K resulted in the creation of the de facto border, known as the Line of Control, which was established in the Simla Agreement of 1972. Under this agreement, Pakistan controls one third of Jammu and Kashmir (POK), and India controls two thirds (IOK).

In the wake of Tuesday’s decision, the situation in IOK has rapidly deteriorated. Since August 4, all communications have been blocked by the Indian government, including internet access, cell service, and landlines. An indefinite curfew has been declared, meaning inhabitants are barred from leaving their home without an approved curfew pass. Even those requiring urgent medical attention are not permitted to leave to receive care or to contact anyone for help. One protestor has already died after being chased by the police, with several others injured. The entire region is on lockdown as India continues its brutal repression of the Kashmiri people, further stifling hope for Kashmiri separatists, after decades of disputes and demands for azadi” (freedom).

Since August 4, all communications have been blocked by the Indian government, including internet access, cell service, and landlines.

But this is not the first time a curfew such as this one has been imposed in IOK. Over the past 72 years of Indian occupation, communication blackouts and curfews have become commonplace, sometimes lasting as long as six months. There have consistently been around 500,000 to 700,000 Indian soldiers stationed in IOK since 1989, making it the most densely militarized zone in the world. Over the last month, tens of thousands of additional soldiers have been deployed to the region, including Rapid Action Forces specialized in riot control. What makes this a particularly tense time are the egregious and unconstitutional decisions being imposed on Kashmir by the central government in New Delhi.

What are Articles 370 and 35A?

Article 370 of the Indian Constitution took effect in 1949, two years after the partition of British India into the independent dominions of Pakistan and India. The Article grants IOK special privileges within the Indian Constitution, theoretically allowing the state government internal sovereignty, as well as an independent constitution and laws. At the same time, however, the Article outlines that external issues of defense, communications, and foreign affairs are controlled by the central government of India. 

Article 35A is a provision added in 1954 under Article 370. This new Article critically gave the state of IOK power to decide who its permanent residents are and to limit property buying rights to these residents. The state defines permanent residents as those who were “born or settled within the state before 1911 or after having lawfully acquired immovable property and resident in the state for not less than 10 years before that date.” It also does not allow non-permanent residents to buy land and settle in the state. 

Historical background of the Articles

Article 35A can be traced back to 1927, in pre-partition India. Maharaja Hari Singh, the Hindu ruler of the Muslim-majority “princely state” of J&K in British India, drafted the original version of the article to prevent the influx of people from the state of Punjab. This provided the basis for the 1954 version in question.

During the 1947 partition of British India, Maharaja Hari Singh was theoretically given the choice to accede to India or Pakistan, or remain independent. Unlike most rulers of princely states, Hari Singh decided that J&K would remain independent. However, after escalating threats from Pakistan, Hari Singh eventually decided to accede to India in order to gain the help of the Indian army in warding off Pakistan. The Governor-General of India accepted the accession, noting that once the affairs of the State had been settled and law and order had been restored, “the question of the State’s accession should be settled by a reference to the people.” Furthermore, conditional on the signing of the Instrument of Accession was the introduction of Article 370 into the Indian Constitution, intended to ensure that while external sovereignty was acceded to India, J&K could still decide on internal matters independently. 

Catastrophic repercussions of the repeal

The unconstitutional repeal of Articles 370 and 35A strips IOK of any independence it held. The central Indian government is fully absorbing it into the Indian body, effectively annexing the occupied state. The repeal also means that non-Kashmiri residents can now freely buy land in IOK and settle there permanently. This has the potential to significantly change the demographics of IOK, transforming it from Muslim-majority to Hindu-majority. 

This demographic change furthers the Hindu nationalist project of Prime Minister Narendra Modi and his ruling Bharatiya Janata Party (BJP). The Party is home to the religious far-right and a political subset of the Hindu fundamentalist group Rashtriya Swayamsevak Sangh (RSS). The RSS is a self-proclaimed Hindu nationalist organization which has, over the past decades, stoked hatred towards non-Hindus and slowly saturated the institutional and social body of India with its fascist, Islamophobic, and casteist ideologies. It has been shifting India from a secular country to a Hindu supremacist one. The BJP was elected for a second term earlier this year, and included in its campaign platform the promise to eliminate Article 370 and 35A of the Constitution. 

The unconstitutional repeal of Articles 370 and 35A strips IOK of any independence Kashmir held. The central Indian government is fully absorbing it into the Indian body, effectively annexing the occupied state.

The BJP government has also had a longstanding plan to resettle Hindus who fled IOK in settlements that amount to segregated enclaves. The construction of these “resettlement townships” has been opposed by local political parties, Muslim leaders, and groups representing the Hindus that fled. However, last month the BJP revived its interest in building these settlements. Combined with one of the most lethal military occupations in the world, the repeal of Article 35A makes clear the BJP’s goal of settler-colonization and ethnic cleansing of Kashmir. Furthermore, once people from all over India have settled in IOK, it is much less likely that separatist movements could gain traction. The “world’s largest democracy” has explicitly revealed itself to be an undemocratic, colonial, occupying force.

Dispute over the region

In April of 1948, after the first Indo-Pakistan War over J&K, the UN called for a plebiscite to determine the will of the Kashmiri people to resolve the dispute. Seventy-one years later, such a plebiscite has yet to happen. Over the decades, Kashmir has seen constant uprisings and protests calling for azadi, particularly in IOK, where a military occupation means that checkpoints are ubiquitous, soldiers roam every street, and any dissent is violently and lethally quashed by the Indian military. Under the Armed Forces (Special Powers) Act, the Indian military in IOK also enjoys extrajudicial power, which renders it impossible to try them for the thousands of murders, rapes, and blindings they have committed and are committing against Kashmiris. 

Combined with one of the most lethal military occupations in the world, the repeal of Article 35A makes clear the BJP’s goal of settler-colonization and ethnic cleansing of Kashmir.

Pakistan has also historically furthered its own geopolitical agenda, constantly funding radical Islamist and pro-Pakistan movements within IOK, while simultaneously drowning out and fighting against indigenous separatist organizations. This has also allowed India to blame all and any unrest in IOK on “terrorists funded by Pakistan” in order to garner approval and support for brutal crackdowns on protests.

The indigenous movements calling for separatism and for a plebiscite to finally take place have been constantly drowned out by sabre-rattling and war-mongering between India and Pakistan. The two nuclear powers have continuously co-opted the Kashmir issue (read: occupation) to further their own political agendas, and have been unflinching in their desire to absorb the state of J&K into their own respective country, while disregarding the voices of Kashmiris, most of whom want J&K to be independent. Kashmir has essentially been treated as an occupied colony ever since partition. 

Bifurcation of IOK

The Jammu and Kashmir Reorganisation Bill also strips Jammu and Kashmir of its status as a state. It divides IOK into two “union territories,” a western territory of Jammu and Kashmir, and an eastern one of Ladakh (another region of IOK). 

States within India have their own legislative assembly and a chief minister, allowing them to define their own laws. They have both a lower and upper house, and representation in the Rajya Sabha. On the other hand, union territories are controlled directly by the central government of India. 

The union territory of Jammu and Kashmir will have its own legislative assembly, but no upper house, and the final decisions will be held by the lieutenant governor, appointed by the central government of India. The union territory of Ladakh will not have a legislative assembly, and will instead be controlled directly by an appointed governor. 

The indigenous movements calling for separatism and for a plebiscite to finally take place have been constantly drowned out by sabre-rattling and war-mongering between India and Pakistan.

The lieutenant governor, appointed by the central government of India, will be able to exercise control over territory laws, meaning the Indian government will be able to directly dictate the internal politics of IOK. What little independence Kashmiri people held on to has been violently robbed from them. The state of IOK (now existing as two union territories) has even less independence than other Indian states. Kashmiri politician Shah Faesal reports that “it is the loss of statehood that has hurt people deeply. This is being seen as the biggest betrayal by the Indian state in the last 70 years.”

Constitutional manipulation and challenges to the repeal

The Jammu and Kashmir Reorganisation Bill is already being exposed as “fraud upon the Constitution.Article 370(3) specifically states that the Article can only be repealed through concurrence of the Constituent Assembly of IOK. However, IOK has not had a Constituent Assembly since 1956, when it dissolved itself by drafting the state Constitution. On August 5, to override this, President Kovind passed a Presidential Order which redefined Article 367, a section of the Constitution that outlines rules for interpreting provisions of the Constitution. In an insidious constitutional sleight of hand, the Presidential Order added clause 4 to Article 367, stating that the words “Constituent Assembly” in Article 370(3) would be interpreted as “Legislative Assembly.” 

Yet, currently, no legislative assembly exists in IOK either. In June of 2018, the elected government of IOK was ousted, and the governor took control of the state. In November, the BJP pulled out of a coalition government with the People’s Democratic Party (PDP) of Jammu and Kashmir, and the governor dissolved the state Legislative Assembly. Since then, the power of the Legislature of Jammu and Kashmir has been vested in the central Indian Legislature. Thus, once the governor and the Lok Sabha approved the Bill, it was taken as the approval of the “Legislative Assembly” of Jammu and Kashmir, purportedly satisfying the “concurrence” required under Article 370(3) as defined by the new Article 367(4).

Most legal experts agree that this constitutional manipulation is fraudulent and illegal, and the matter has already been taken to the Supreme Court. Since an elected Constituent Assembly did not exist to endorse this Bill, it is unconstitutional, regardless of the loopholes the fascist government attempted to jump through. However, many also think it is unlikely the courts will overturn the decision, as most of the political parties in India backed the Bill. Either way, it is likely that the government will battle in court, drawing out the proceedings, thereby buying time to do horrific damage in IOK.

Kashmir has essentially been treated as an occupied colony ever since partition. 

Furthermore, politicians opposed to this decision are stressing that Article 370 was the cornerstone of the accession of J&K to India. Thus, it is argued that the repeal of Article 370 should render the Instrument of Accession null and void, as this was a unilateral decision without the approval of an elected Kashmiri government. This would mean that J&K is not legally under Indian control anymore.

Current situation in IOK

Over the past month, rumours about the repeal of Articles 370 and 35A spread throughout IOK as tens of thousands of soldiers poured into the region. In the days leading up to the August 5 announcement, tourists were told to leave the region, and Amarnath Yatris (religious pilgrims) had their religious rights violated as they were asked to immediately leave IOK, despite being in pilgrimage. This was justified by unsubstantiated claims of “external threats,” which were blindly repeated by mainstream journalists. Kashmiris started gathering food, gas, and money in anticipation of a curfew being declared. On the night of August 4, all communication channels and internet access were shut down. Early the next morning, an indefinite curfew was imposed, hours before the announcement of the Jammu and Kashmir Reorganisation Bill. Two former Chief Ministers of Kashmir were also placed under house arrest, along with other political leaders. While the entire world learned of this vicious bill, the people of Kashmir were kept locked in their houses, with no way of finding out the fate that was being decided for them in New Delhi. Families were unable to contact their loved ones to find out if they were okay. 

The few people who have been able to leave or communicate outside IOK in the past few days paint a grim picture. Srinagar (the summer capital of J&K) has been described as a “city of soldiers and concertina wire.” Allegedly, ATMs are out of money and soldiers are stationed “every five feet,” leading to Shah Faesal describing the situation as “six million people incarcerated like never before.” The communication blackout means that it is nearly impossible for Kashmiris to find out what is happening, and which rumours are true, rendering Kashmir “invisible, even inside Kashmir.” 

While the entire world learned of this vicious bill, the people of Kashmir were kept locked in their houses, with no way of finding out the fate that was being decided for them in New Delhi.

The Hindu nationalist Indian government is using brute force to unconstitutionally remove the little independence Jammu and Kashmir was ensured, annexing the state, with settler-colonialism on the horizon. It is imperative that we raise awareness about the situation in Kashmir. While an indefinite curfew persists, we must fight harder than ever for the self-determination and azadi of Kashmiris. Protests are being organized across the world to call attention to the colonial treatment of J&K, including the #RedForKashmir social media campaign. Over the past decades, thousands have died at the hands of the Indian military, and the lockdown in Kashmir right now should be cause for outrage and immediate action, as the death toll continues to rise. We cannot let the repeal of these Articles, the next step in a violent, 72 year long occupation, become normalized. It is essential that we continue to call for the end of the occupation of Kashmir by all parties involved, so that the will of the Kashmiri people can be respected.