Krishan Tyagi a former BBC correspondent elaborates on the issue

The Article 370 in the Constitution of India, which came into effect in 1949, a special status to the state of Jammu & Kashmir (J&K) under which the state had a separate constitution (adopted in November 1956) and a separate flag. It allowed the state a jurisdiction to make its own laws in all matters except finance, defence, foreign affairs and communications. That meant the residents of the state lived under different laws from the rest of the country in matters such as property ownership, employment and citizenship. The Article denied property rights in the region to the Indian citizens from outside J&K.

At the same time, the Constitution of Jammu & Kashmir 1956 in its Preamble recognised the accession of the state to India on 26^th October, 1947 through the Instrument of Accession signed by former king of Jammu & Kashmir Hari Singh, committed to the concept of single Indian citizenship, and defined the State as an integral part of the Union of India.

Some aspects of Article 370 got diluted over the decades in the fields of judicial system and public administration.

The article was drafted in Part XXI of the Indian Constitution: Temporary, Transitional and Special Provisions.

Article 35A

Under the Article 370 of the Indian constitution, in 1954 another amendment in the Constitution was made, called Article 35A, through an Executive Order (called Presidential order), meaning without the approval of Indian Parliament. Article 35A permitted the legislative assembly of Jammu & Kashmir to define permanent residents of the region. The Article forbid non-J&K citizens of India from permanently settling, buying immoveable property, holding local government jobs, or winning education scholarships in the state.

Article 35A, referred to as the Permanent Residents Law, also barred female residents of Jammu & Kashmir from property rights in the event that they married a person from outside the state. The provision also extended to such women’s children.

Evidently, the Article clearly discriminated against women. To quote an example, former chief minister of J&K Farooq Abdullah marrying a lady of British origin loses no property rights, but his daughter Sara lost all her property rights in J&K because of marrying someone who is not from J&K.

Apart from the Article 35A discriminating against women, these Articles also created an anomalies in the Indian democracy. While Jammu & Kashmir’s “Permanent Residents” could buy property, have government jobs and settle permanently in any other part of India, nonJ&K citizens of India were not allowed to do the same in Jammu & Kashmir. Another problem emanating from Article 35A, known in Britain as ‘the West Lothian Question’ was that the MPs and Union ministers coming from J&K could vote on legislation for the rest of India on subjects in the Union and Concurrent lists of the Constitution of India, the Indian parliament, ie, MPs from other states, had no right to legislate on those subjects for J&K.

As mentioned, Article 35A did not have any parliamentary sanction and was supposed to be temporary too.

The Government of India revoked Article 35A through a Presidential Order and abrogated Article 370 by passing an Act through the Indian Parliament in August 2019.

Written by Krishan Tyagi, Editor, Mirror to Mirror (mirrortomirror.org)

Mirror To Mirror with Former BBC Correspondent Krishan Tyagi

Pakistan never recognised that Jammu & Kashmir enjoyed a special status in the Union of India through Article 370 and Article 35A in the Constitution of India. Pak government, establishment and media call the Indian region of Jammu and Kashmir “Maqbooza Kashmir” (Occupied Kashmir) using the formal phrase “Indian Occupied Kashmir (IOK)”. But the moment the Modi government decided to abandon those provisions, Pakistan decided it is a violation of some agreement with Pakistan! Pakistani establishment claimed the Article 370 could not be removed unilaterally by India.

As the Indian parliament passed the resolutions to abrogate Article 370 (and Article 35A as a consequence) and reorganised the region into two Union Territories of Jammu & Kashmir and Ladhakh, Pakistan reacted sharply. Pakistan’s national assembly in a joint session condemned India for unilaterally changing the status of Jammu & Kashmir. Pakistan downgraded the diplomatic relations with India by sending the Indian envoy back home; the trade with India has been completely stopped; the train and bus services between the two countries have been stopped; Pakistani air space has again been restricted for Indian planes; and most importantly, Pakistan is taking the matter to the United Nations Security Council and International Court of Justice, if possible. Prime Minister Imran Khan has phoned world leaders and Foreign Minister Shah Mahmood Qureshi has visited Beijing seeking China’s support at the UNSC in order to make India withdraw its measure in relation to Jammu and Kashmir.

There has not been much of a reaction from the Indian government to the unilateral measures taken by the Pak government. The only response from the Indian government that we saw during the week was that the Ministry of External Affairs spokesperson Ravish Kumar asked Pakistan to review its decision to downgrade the ties with India.

However, the Indian media as well as Pak media have been taking great interest in the developments in Pakistan in the field. The Indian media in general dismissed the Imran Khan government’s attempts to garner international support against India as desperate and fruitless efforts. For instance, Palki Sharma Upadhyay at WION News, India’s global news channel, wished Pakistan “Good Luck” in its efforts. On the other hand, as expected Pak media has been very supportive of their government.

Different television channels have joined their government in severely criticising the present Indian government’s measure to absorb “disputed Jammu and Kashmir” into India; condemned “Indian atrocities on Kashmiri people”; and used abusive words for Indian prime minister Narendra Modi.

On the Pakistani television news channel 24 News,one of the senior most Pak journalists, Najam Sethi who also believed that India has acted inappropriately, presented a very realistic assessment of the options available to the Pakistan establishment in its opposition to the abrogation of Article 370 of the Indian constitution in relation to Jammu and Kashmir.

Mr Sethi reported that there was no positive response from Saudi Arabia, Malaysia, the US or China to PM Khan’s phone calls and FM Qureshi’s visit to Beijing. These countries at present have very strong trade and investment relations with India, and it is not in their national interest to annoy India. China particularly at this moment is not very happy with Pakistan. Turkey is the only country that has supported Pakistan on the issue. Basically, Pakistan doesn’t have much of international support.

Najam Sethi also talked of the UN Resolutions on Kashmir proposing a plebiscite in Jammu and Kashmir. Generally the people in Pakistan think the plebiscite was supposed to take place in the Indian region of Jammu & Kashmir only. Because the plebiscite did not take place, Pakistan calls Indian region of Jammu and Kashmir, as mentioned, “Indian Occupied Kashmir” and the area under its own control “Azad Kashmir (Free Kashmir)”. Mr Sethi informed the 24 News viewers that according to the concerned UN Resolutions, the plebiscite was to be held in the whole of Jammu & Kashmir, INCLUDING THE KASHMIR UNDER PAKISTANI CONTROL.

However, as mentioned in the review, even Mr Sethi, a very mature journalist, omitted the extremely important detail of the UNSC Resolution 47, adopted on 21 April 1948, wherein the proposal to hold a plebiscite in Jammu and Kashmir was made. The Resolution had recommended a three-step processfor the resolution of the dispute between India and Pakistan. In the first step, Pakistan was asked to withdraw all its nationals from Kashmir. In the second step, India was asked to progressively reduce its forces to the minimum level required for law and order. In the third step, India was asked to appoint a plebiscite administrator nominated by the United Nations who would conduct a free and impartial plebiscite. These steps were sequential, meaning the second step was to be taken up on the completion of the first one, and the third step was to be taken up on the completion of the second one. Mr Sethi kept quiet on the fact that the plebiscite did not take place because Pakistan did not fulfil the first condition. It never withdrew its nationals from Kashmir. So, the reality of the UN Resolutions on Kashmir is that they could not be acted upon because Pakistan did not keep its part. The responsibility for the non-implementation of the UN Resolutions lies with Pakistan.

Even more importantly, the fact is that the present state of Pakistan is not the state of Pakistan that was a party against the state of India in the UN Resolutions relating to Kashmir in 1948-1949. THAT STATE OF PAKISTAN NO LONGER EXISTS. More than half of the population of that State of Pakistan transformed itself into another State called Bangladesh in 1971. So, a smaller part of that State cannot claim itself to be the inheritor of the erstwhile State of Pakistan, the party to the dispute with India, even if it calls itself Pakistan. In that Resolution, present day Bangladesh, the then East Pakistan, was a joint claimant as a part of Pakistan. The present day Pakistan can only pursue that claim if Bangladesh joins it in pursuing that claim.

So, all the UN Resolutions relating to Jammu and Kashmir, where the State of India and the then State of Pakistan were the parties to the dispute, are null & void after the transformation of East Pakistan into Bangladesh.

But, no one including Indian political leaders and Indian media has ever told Pakistan.

Courtesy mirrortomirror.com