Why Article 35A matters: Of demography and the right of self-determination in Indian-administered Kashmir

[dropcap]C[/dropcap]hristopher Snedden in his seminal account The Untold Story of the People of Azad Kashmir, contrary to the narratives of India and Pakistan, finds the origins of the "problems" that led to Hari Singh's accession to India, not in the invasion by tribesmen from Pakistan. As per him, it lay in the protests by the people of Poonch and Mirpur against the oppressive government of Maharaja Hari Singh, and the violence that started in Jammu province roughly around that time which affected all communities — most significantly, the Muslims.  This was met with a severe state-sponsored crackdown and massacres — and led to a huge loss in life and triggered mass displacement and, consequently, a vast demographic change in the Jammu region.

More recently, in the 90s, the valley of Kashmir witnessed immense change in the demography as a consequence of the exodus of the Kashmiri Pandits. Many of such Pandits, however, continue to stay within the administrative boundary of the current Indian administered state of Jammu and Kashmir. Ironically, it was/is Article 35A which acts as the "parchment safeguard" in both cases.

This reflection is quite pertinent today when the Supreme Court of India is seized with the question of the constitutionality of Article 35A that appears in Appendix 1 of the Constitution of India as "The Constitution  (Application  to Jammu and Kashmir) Order, 1954" — more popularly known as "President's Order of 1954" or the "Basic Order". As per Article 370 of the Constitution of India, such Presidential Orders were the only way to extend the Indian Constitution to Jammu and Kashmir; and this vehicle has been used to contentiously extend, and more contentiously, to modify and add provisions like Article 35A that are applicable in Jammu and Kashmir. At the core of it — Article 35A allows the State Legislature of Jammu and Kashmir to define the classes of persons who are residents of the State; and to make laws to confer upon them rights to immovable property, settlement, employment and scholarship, to the extent that such laws could exclude other Indian citizens.

If this were to go as a consequence of the decision of the Supreme Court — it would give the State the permissive pass to permanently, and this time use the legitimacy of law, to alter/permit the alteration of the demography of the place by letting everyone in as opposed to pushing people out. Consequently, this will effect the exercise of the right of "external" self-determination (i.e. the right to decide on the political status of the people — including the right to separate from the existing state of which the group concerned is a part, and to set up one or more units to form a new independent state; or to join another state). I will come to that shortly.

It is this potential change in demography that is being questioned — and not any hypocritical shift, or a sudden love for the constitutional principles from the quarters that have always questioned the legitimacy of the application of the Indian Constitution to the State of Jammu and Kashmir. In fact, it will be hard to find in Kashmir a genuine, well-intentioned fan of the Constitution that — as A G Noorani beautifully explains in his book Article 370 – A Constitutional History in Jammu and Kashmir — has been used by the Executive  to erode the basic safeguards promised and enshrined in Article 370 to prevent any forceful integration against the will of the people; to make a mockery of fundamental rights; and to render parts of the Constitution of Jammu and Kashmir ineffective (most notably, the replacement of the elected, constitutional state head, Sadar-i-Riyast with a Union-appointed Governor).

The Supreme Court also has had a role to play in this through cases like Sampat Prakash v. State of JK — where upholding the constitutional bar on challenge on any  law  relating   to  preventive detention (Article 35C), the Supreme Court incorrectly noted that the power of the President to issue Presidential Orders continues even after dissolution of the Jammu and Kashmir Constituent Assembly. Such an understanding goes against the text of Article 370, the exposition of N Gopalaswami Ayyangar (drafter of 370) during the Constituent Assembly debates, and the Supreme Court's own understanding of the amending powers in in the previous case of  Prem Nath Kaul v. State of Jammu and Kashmir. Hashing out all the problems with such kind of law-making, such a law and the consequences of such a law will have to, however, constitute a separate piece altogether.

Background of Article 35A

In such a context, removal of Article 35A will be the last act of "constitutional" betrayal. Noorani, at another place, has examined how Article 35A, being part of, and arising out of an often abused yet solemn pact between India and Jammu and Kashmir, is technically beyond challenge. He adds that special provisions permitting quasi-autonomy for Kashmir (and the other special provisions Nagaland and Mizoram subsequently added) in the Constitution arise out of extensive negotiations — and cannot be ultra vires of the Constitution itself or the doctrine of basic structure. Though I don't have much to add to his analysis, I do not wish to spare us the chance of missing out on some important aspects.

First, Article 35A actually says nothing new — it was pretty much the understanding at the time of drafting of Article 370 of the Indian Constitution that the State of Jammu and Kashmir had the right to define its residents/subjects; and a "state subject" was anyway defined in Maharaja Hari Singh's Notification of April 20, 1927 (now appended to and read with the provision of permanent residents in Section 6 of the Constitution of Jammu and Kashmir). It was brought in as a mere clarification to such a right — as admitted by Nehru; and, at the insistence of Kashmiri leaders who were a part of the Delhi Agreement of 1952.

Second, one must also not lose sight of the fact that many of the present petitioners — now recently joined by BJP leader Ashwini Upadhyay —  are also alleging discrimination. They are, however, directing their challenge at the framework that allows the State to define the status of permanent residents, as opposed to the actual legislations/executive orders that defines/clarifies the status of permanent residents and their entitlements. These efforts could be simply directed on the specific laws. In fact, it has led to successful results too in the past. For instance, in relation to status of permanent residence of married women in Jammu and Kashmir, the State High Court while removing the statutory bar — clarified that the daughter of a permanent resident marrying a non-permanent resident will not lose her status of a permanent resident in the case of State of Jammu Kashmir v. Susheela Sawhney. Agitating and harping on such objections again and again through the challenge to Article 35A — are not just odd, but also seem suspect. 

The right to self-determination and the plebiscite

The essence of what I want to talk about, however, goes beyond the binaries that this case presents to the Supreme Court, and focus on how the challenge to Article 35A is connected with the principle of self-determination of "peoples". Despite the lack of absolute certainties about its lineaments, the principle is firmly recognised as one of the fundamental human rights applicable in international law. One of the debates that comes up in relation to Jammu and Kashmir — is if this right amounts to "external" self-determination. This right has often been applied in relation to decolonisation — and its existence, within its 1947 boundaries, has been endorsed in relation to Jammu and Kashmir by the International Commission of Jurists in their 1995 Report on Kashmir ("ICJ Report"). In particular, they noted that a right to external self-determination, crystallised during the end of the British rule in 1947-48, and remains exercisable even today.

There are also other triggers beyond decolonisation. Despite some scholarship to the contrary, there seems sufficient practice and literature to support that such a right also accrues in the context of post-colonial entities and through triggers of severe oppression; alien subjugation, domination and exploitation; belligerent occupation; or absence of internal self-determination (i.e. the right to freely choose their own political system and to pursue their own economic, social, and cultural development within the administrative units of the current state); or other such analogous triggers akin to colonialism. For example, Bangladesh (with the assistance of India) was successful in seceding from Pakistan without much international objection due to the extreme violations of human rights. Such triggers could very well apply in relation to Kashmir as well.

What is, however, resoundingly clear is that India committed itself, at multiple occasions, to hold a plebiscite among the population of the former princely state of Jammu and Kashmir to determine their fate — recognising, therefore, that the people of Kashmir have such a right to self-determination. Not only does this create obligations under the law of self determination, but also binds the Indian state to hold a plebiscite based on the principle of estoppel — as per which it is precluded from taking a contrary stance today. Even if one is to leave aside the statements by India at the United Nations — which as argued by some holds the commitment of conducting a plebiscite and, consequently, the right to self-determination hostage to demilitarisation  of the area — there are ample instances of the promise.

I will cite two clearer examples.

As per the Interim Constitution of India in 1947, the Government of India, Act 1935 regulated the accession; and acceptance by the Governor General was legal pre-requisite to such accession. The Governor General, in his acceptance letter to Hari Singh, himself mentioned that this accession was "provisional", and to be "settled by a reference to the people". This was subsequently endorsed in the White Paper on Jammu and Kashmir by the Government of India in February 1948.

The second such admission of an obligation to determine the will of the people, quite categorically, was by N Gopalaswami Iyengar on two occasions — May 27, 1949 and October 17, 1949 — both times while explaining the special status of Jammu and Kashmir. On one occasion, he says: "Again, the Government of India has committed to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it. We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed."

Subsequent events of setting up a constituent assembly for the Indian administered Jammu and Kashmir, having elections, or entering of agreements by the Kashmiri Government, like the Delhi Agreement of 1952 and Sheik Abdullah's Kashmir Accord of 1975, with the Indian Government — which are themselves mired in huge controversies — cannot be considered as an expression of the "will of the people", or a replacement for the promised plebiscite. As the ICJ report itself notes, considering the accession and the consequences as a fait accompli as opposed to a positive choice, a contrary understanding would "place too little weight on the importance of the principle of self-determination."

In any case, it is impractical to assume that a place must remain in limbo in relation to administration and governance till the eventual resolution through a plebiscite — a reality that is also  recognised under the law on alien occupation in international law. The Security Council Resolutions pertaining to the Kashmir plebiscite also takes note of the fact that setting up of a Constituent Assembly is not a resolution to the issue of self-determination. Similarly, even bilateral agreements between the Governments of India, and Pakistan – like the Shimla Agreement of 1972 does not whittle away the right of self-determination of the people. Even the Indian Government's response to the ICJ report endorses that "[A]n agreement between the two states could not have deprived the people of JK of any rights of self-determination to which they were entitled at the time of the Agreement" in the absence of them being parties to such an Agreement.

Who belongs to the people?

Once you have identified the right of self-determination, then the focus shifts from the question "who is the people" who have such a right and whose wishes are to be ascertained, to "who belongs to the people" who are to exercise their individual right (usually, to vote) in order to co-determine the collective destiny of the people. In times of the NRC in Assam, one can easily realise the issues that arise with procedures for ascertaining belongingness. Such problems become more pronounced in cases of self-determination, where states, often intentionally, allow the issues to linger for years, and using law and other tools of oppression attempt to change the demography of the region — to make an eventual resolution more and more difficult as the days progress. Israel's occupation of Palestine — in particular, its settler policy in the West Bank is a classic example of such a case.

Even the use of a plebiscite in cases where change in demography is fuelled by voluntary or forced population shifts, has often led to problems. A blind application of the plebiscite without cognizance to such realities may, in fact, further legitimise a forceful occupation of territory. There are many cases which highlight the problem. One of the notable ones being the case of Western Sahara. The issue of plebiscite in Western Sahara, was spurred by the decision of the International Court of Justice in 1975 which, among other things, recognised a case for self-determination through the free and genuine expression of the will of the peoples of the territory. The resolution has been essentially in limbo due to disagreement over who belongs to the people of Western Sahara. One side (Polisario, a Sahrawi rebel movement, working for the separation of Western Sahara from Morocco) wants to rely on the census initiated by Spain in 1974, whereas the other side (influenced by Morocco) proposes more recent data including persons who have moved into the territory of Western Sahara after Spain left. Over 30 years of stalemate, during which several reconciliation attempts were made, notably by UN special envoy James Baker, failed.

Similar issues arose in the context of the Montenegro referendum to decide whether Montenegro would separate from Serbia; and the Algerian referendum in which French settlers of Algeria wished to participate.

Effect of the reneging on the promise enshrined in Article 35A

Though, it might be tenuous for the Supreme Court to declare Article 35A void even as per Indian Constitutional Law, one cannot rule the possibility out. It is also possible that the matter will be kept on hold, and it will be used as a matter of political and legal agitation now and then, and legitimacy will be sought for the white-washed agenda of integration using law. If, however, the power goes, as a consequence of the decision of the Supreme Court it will make the resolution through the promised plebiscite much more difficult, if not impossible.

In particular, in any "integrated" Jammu and Kashmir, issues regarding identification of individual right holders (currently the permanent residents) will become a gruelling task. Additionally, the result of the promised plebiscite, if it were to suggest some form of secession, will be extremely complicated to execute considering the investments and stakes of property holders in a non-35A environment. Leaving practical problems aside, frustrating the exercise of an established right of self-determination might itself be categorised as an internationally wrongful act, as has been held by the International Court of Justice in the case of the demographic changes brought about by the Israeli settlement policy since 1977 and the construction of the infamous Israeli Wall. The ICJ has specifically noted that, "[t]here is also a risk of further alterations to the demographic composition of the Occupied Palestinian Territory resulting from the construction of the wall inasmuch as it is contributing… to the departure of Palestinian populations from certain areas. That construction, along with measures taken previously, thus severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel's obligation to respect that right."

One must also remember that issues regarding both land and law, are also battlegrounds in a disputed territory, and are closely connected to the issue of self-determination. States have tried to enforce their hegemony using both; and Kashmir is no exception. One cannot forget the agitation around the state government's decision to transfer 40 hectares of forest-land to the Shri Amarnath Ji Shrine Board (SASB) in 2008. Similarly, law, especially Constitutional law has been used to institutionalise "a state of undeclared martial law and permanent emergency" in Jammu and Kashmir.

Article 35A, being the right under the Constitution to define a permanent resident, and to consequently confer upon such citizens rights related to immovable property, is intrinsically connected to both land and law. Tampering with it, therefore, might itself give rise to claims of self-determination based on the triggers discussed above.