"Pakistan strongly condemns and rejects the

announcements made today by the Indian Government

regarding the Indian Occupied Jammu & Kashmir. The
Indian Occupied Jammu & Kashmir is an internationally
recognized disputed territory. No unilateral step by the
Government of India can change this disputed status, as
enshrined in the United Nations Security Council (UNSC)
resolutions. Nor will this ever be acceptable to the people of
Jammu & Kashmir and Pakistan. As the party to this
international dispute, Pakistan will exercise all possible
options to counter the illegal steps."
(Pakistan foreign office statement, 5th August 2019)

India's government has revoked on 5th August the special

constitutional status of Indian-occupied Kashmir (IoK), amid a heavy
security crackdown in the disputed region. The constitutional
provision forbids Indians from outside the region from buying land
or permanently settling in the Muslim-majority territory.

What is happening?
The Hindu nationalist-led government of Indian Prime Minister
Narendra Modi on Monday proposed revoking Article 370 of India's
constitution, which confers special rights to permanent residents of
IoK. Modi's home minister, Amit Shah, said the long-standing rights
that preceded India's independence from British rule in 1947 were
"temporary" and that the government would abolish them. Critics of
such a measure say that in doing away with Article 370, the
government hopes to change IoK's Muslim-majority demographics by
allowing in a flood of new Hindu residents.
To tackle any law and order situation, the region has been put under
a heavy security cover, with prohibitory orders in place against public
assembly. The Indian government placed under house arrestthe
former chief ministers of IoK, Omar Abdullah and Mehbooba Mufti,
late on Sunday night and imposed curfew-like restrictions in the
restive region with internet and phone services cut. Shah proposed
revoking Article 370 amid an uproar in India's upper house of
parliament and was expected to address the lower house on the issue
later today.
1
What is IoK's special status?
Article 35A of India's constitution permits the local legislature in
IoK to define permanent residents of the region. The article came
 into being in 1954 by a presidential order under the constitution's
Article 370, which grants special autonomous status to IoK. Article
35A forbids Indians from outside the state from permanently settling,
buying land, holding local government jobs or winning education
scholarships in the region. The article, referred to as the Permanent
Residents Law, also bars female residents of IoK from property rights
in the event that they marry a person from outside the state. The
provision also extends to such women's children. While Article 35A
has remained unchanged, some aspects of Article 370 have been
diluted over the decades. Critics of Article 35A say the provision did
not have parliamentary sanction, and that it discriminates against
women.

What is Article 370? (BBC News)

During the partition of the Indian subcontinent in 1947, Jammu and

Kashmir, like other Muslim-majority regions, was expected to go to
Pakistan. But the ruler of the princely state, who had initially wanted

Jammu and Kashmir to become independent, joined India in return

for help against an invasion of tribesmen from Pakistan. In 1949, a
2 special provision was added to the constitution providing autonomy
to Jammu and Kashmir. Article 370 allows the state to have its own
constitution, a separate flag and independence over all matters
except foreign affairs, defence and communications.
 Another provision later added under Article 370 - 35A - provides
special privileges to permanent residents, including state government
jobs and the exclusive right to own property in the state. It is seen as
protecting the state's distinct demographic character as the only
Muslim-majority state in India. These benefits will be lost with the
repeal of Article 370.
How did Article 35A come about?
A 1927 order by the administration of the IoK gave the state's
subjects exclusive hereditary rights. Two months after India won
independence from British rule in August 1947, Maharaja Hari
Singh, the then-ruler of IoK, signed a Treaty of Accession for the
state to join the rest of the union, formalised in Article 370 of
the Indian constitution. Further discussions culminated in the 1952
Delhi Agreement, a presidential order that extended Indian
citizenship to the residents of the state but left the maharaja's
privileges for residents intact.

How can it be repealed?

Article 370(3) of the Indian constitution permits revocation of the
law by presidential order. However, such an order must be
introduced before the state's Constituent Assembly. Since that body
was dissolved in 1957, experts have different views on the abrogation
of the law, with some believing it needs approval by state lawmakers
and others seeing a presidential order as sufficient.
The validity of Article 35A has been brought before India's Supreme
Court. Bharatiya Janata Party (BJP) members have said that if the
court upholds the provision, the Modi-led government will revoke it
by presidential order.
Published in Dawn Newspaper on 5th August, 2019.

3
 Article 35-A (Written by A. G. Noorani)
Article 35-A of India’s constitution says that no law for Jammu &
Kashmir, existing or future, shall be void as being violative of the
fundamental rights if it touches “permanent residents” or confers on
them “special rights” on government jobs, acquisition of immovable
property, settlement in the state or rights to scholarship or other
forms of government aid. The supreme court is asked to declare it
void for violation of “the basic structure of the constitution”. This
doctrine only applies to constitutional amendments. It cannot apply
to the constitution itself. Article 35-A was inserted into the
constitution in 1954 by a presidential order made under Article 370
on J&K’s autonomy, which has been hollowed out.
The threat to Article 35-A poses an existential threat to J&K.
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.
In 1922, the princely state’s council of ministers imposed curbs on
employment of outsiders in administration, as well as “all grants of
land for agricultural and house-building purpose and grant of houses
and other state property shall be made to state subjects only”. A
notification in April 1927 defined them.
The basic principles committee set up by the J&K constituent
assembly, presented its report on Feb 3, 1954. “All these fundamental
rights should be subject to the overriding condition that: (i) no law of
[J&K] relating to [J&K] subjects to be hereafter called ‘permanent
residents’ and regulating their rights and privileges; and (ii) no law
hereafter to be made by the [J&K] legislature defining the permanent
residents and conferring on them special rights and privileges in
relation to acquisition and holding of property in [J&K] or in the
matter of employment under [J&K] and imposing restrictions on
citizens other than permanent residents for settling within [J&K]
should become void on the ground that it is inconsistent with or takes
away or abridges any of the rights conferred by Part III of
Constitution of India.”
4
On Feb 11, 1954, the report of the drafting committee was presented
to the constituent assembly, in which an annexure set out the
provisions of the Indian constitution, besides Articles 1 and 370, that
should apply to J&K. Obviously, this annexure had been settled with
 the Indian government. Article 35-A was among them. On Feb 15,
Girdhari Lal Dogra moved that a copy of the annexure be sent to the
Indian government “for appropriate action”. On May 17, the
president’s order under Article 370 followed, inserting, among other
provisions, Article 35-A in the constitution.
It is part of a compact between J&K and the union. Repeal of Article
35-A — which is constitutionally impossible — will not alter the
situation, for the 1927 notification is part of the J&K constitution.
Article 370 of India’s constitution records a compact between the
centre and Kashmir, so does Article 35-A; Articles 370 and 35-A form
an inseparable whole, which was negotiated over May to October
1949. It was agreed between Jawaharlal Nehru and J&K’s delegation
headed by Sheikh sahib. Nehru recorded it in a note dated July 20,
1952. The terms of the agreement were explained to the Lok Sabha
and to the J&K constituent assembly.
Article 35-A is not a mere executive order under Article 370 but is
itself a constitutional provision, a compact recorded in both
constitutions. No court can ignore this. As the Privy Council held
“parliament could as a matter of abstract law” repeal the statute of
Westminster recognising the independence of the dominions. “But
that is theory and has no relation to realities.” Article 371-A of India’s
constitution on Nagaland has similar curbs. The Mizo Accord of 1986
was effectuated by Article 371-G. No central law can apply to them
unless their legislatures so decide.
The remarks made by the chief justice of India, Dipak Misra, on Aug
6, 2018, are therefore disturbing. He said he would hear the centre
“and to some extent the J&K government, which has a minimal role”.
The centre wants to remove Articles 35-A and 370. Kashmir’s very
existence depends on their survival. It was represented by a lawyer in
the employ of the centre, additional solicitor general Tushar Mehta.
It is not too late to register J&K’s voice; for instance, by an all parties’
convention; a white paper on Article 35-A based on the records; a
declaration by the convention and an all parties’ delegation to the
prime minister. A united front is necessary. The supreme court must
not walk into this thicket.
Published in Dawn Newspaper on August 11, 2018.
5
 A new strategy (Written by Sikander Shah)
The BJP government has unequivocally stated that it will repeal
Articles 35-A and 370 of the Indian constitution if it is voted back
into power. Article 370 provides an autonomous status to Jammu
and Kashmir and Article 35-A prevents settlements or the acquisition
of immovable property by non-Kashmiris in the occupied territory.
These articles solely authorise the [occupied Kashmir] legislature to
define “the classes of persons who are, or shall be, permanent
residents of … Jammu and Kashmir”.
India’s constitutional absorption of occupied Jammu and Kashmir in
the 1950s remains illegal under international law because the
princely state (that includes Azad Kashmir and Gilgit-Baltistan) was
to decide its own fate through a plebiscite carried out, as outlined
under UN Security Council Resolution 47, under the auspices of the
United Nations Commission for India and Pakistan (UNCIP) formed
under UN Security Council Resolution 39. Nevertheless, today, any
protections taken away from the Kashmiri people or attempts to
change the demographics of occupied Kashmir by India would
seriously compromise the right to self-determination and human
rights of the Kashmiri people; it would also alter the status quo over
Kashmir, violating Pakistan’s due process and international legal
rights as a recognised state party to the Kashmir dispute.
Through these measures, such as its endeavour to define (or redefine)
the permanent residency of India-occupied Jammu and Kashmir,
India is openly violating numerous UN resolutions on Kashmir.
Under UNCIP’s resolution of Jan 5, 1949, “all persons (other than
citizens of the State) … shall be required to leave the State” and “[a]ll
citizens of the State who have left … will be invited and be free to
return”. It is clear from this language that pending a plebiscite, any
attempts to change the demographics of Kashmir or effect a transfer
of its population would be illegal.
Apart from the relevant UN resolutions, Pakistan can also rely on the
Shimla Agreement, a bilateral treaty between Pakistan and India, to
highlight the latter’s violations of international law. This treaty was
entered into in 1972, after the promulgation of Article 370 and 35-A,
and prohibits all changes to the status quo over Kashmir effected by
either nation without mutual resolution. The treaty states that
6 “pending the final settlement of any of the problems between the two
countries, neither side shall unilaterally alter the situation and both
shall prevent the organisation, assistance or encouragement of any
acts detrimental to the maintenance of peaceful and harmonious
 relations”. By repealing Articles 35-A and 370, India would be
violating the Shimla Agreement both in spirit and practice.
Furthermore, India’s attempt to change the demographics of
India-occupied Kashmir is a grave violation of international
humanitarian law and can amount to serious war crimes, crimes
against humanity and ethnic cleansing. Under Article 49 of the
Geneva Convention IV (1949), “the occupying power shall not deport
or transfer parts of its own civilian population into the territory it
occupies.”
The same principle is reaffirmed in the more recent 1977 Additional
Protocol I to the Geneva Conventions, which largely reflects
customary international law, and which terms such acts a grave
breach of the protocol. Moreover, under Article 20(c)(i) of the 1996
International Law Commission Draft Code of Crimes against the
Peace and Security of Mankind, such transfers are considered war
crimes; while under Article 8(2)(b)(viii) of the International Criminal
Court statute (1998) such transfers, directly or indirectly, constitute
war crimes in international armed conflicts.
That the Kashmir dispute could trigger an international armed
conflict has been indubitably confirmed via the recent military
conflagration between India and Pakistan, when Indian warplanes
crossed over Azad Kashmir and unsuccessfully conducted air strikes
around Balakot in Khyber Pakhtunkhwa.
Altering demographics through state policy and repression can result
in forcible transfers of the indigenous population, qualifying as
crimes against humanity when they are part of a widespread or
systematic attack (which need not be armed) directed against any
civilian population, as determined by the International Criminal
Tribunal for Rwanda. The government of India, by attempting to
repeal Articles 35-A and 370, is signalling its intentions to realise this
repression.
Permanently altering the ethnic-makeup of India-occupied Kashmir,
which could eventually result in ethnic cleansing, would also be a
serious violation of international law and the International
Convention on the Elimination of All Forms of Racial Discrimination,
a UN treaty which India ratified in 1968 without any reservations.
Such violations were confirmed by the ICERD Committee in its 1995
7 decision on Bosnia-Herzegovina.
In the last few years, the BJP government has attempted to change
the demographics of the occupied territory using targeting measures
such as through the setting up of Israeli-style settlements or
 townships for Kashmiri Pandits or via the establishment of Sainik
colonies to permanently settle Indian soldiers displacing local
Kashmiri residents. Repealing Articles 35-A and 370 is, however, a
more serious and insidious attempt to destroy the culture and
identity of the Kashmiri people, and Pakistan must actively raise
India’s violation at all international levels, legally and diplomatically,
including with the International Committee of the Red Cross and the
ICERD treaty body and at the UN Security Council, the General
Assembly and the Human Rights Council.
The BJP is, in the run-up to the elections, going to extreme measures
in order to stir up nationalist and racial tensions within the country
in an attempt to mobilise its right-wing power base. Tinkering with
the Indian constitution in this way, however, not only dilutes the
sanctity of the constitutional document itself, but would have grave
consequences for the people of Kashmir. With the two articles
omitted from the constitution, there would be little to stop an
Israeli-style settlement programme being instituted in the valley of
Kashmir, leaving the Kashmiri — much like the Palestinians —
foreigners in their ancestral lands.
Published in Dawn Newspaper on April 20, 2019