By repealing Articles 35-A and 370, India would be violating the Shimla Agreement both in spirit and practice.
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.
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 affected by either nation without mutual resolution. 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.”
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.
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.
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.
By arrangement with Dawn