A Dispute for the Valley: The Brunt of 35A's Abrogation on the Kashmiri People

By Ilina Krishen

On Aug. 5, 2019, the Bharatiya Janata Party (“BJP”)-led Indian government voted to repeal Articles 370 of the Constitution, the core of Kashmir’s conditional accession to India, without the consent of the Kashmiri people.[1] This repeal removed the limited autonomy Articles 370 and 35A granted to the state of Jammu and Kashmir.[2] As a result, Kashmir no longer has a separate constitution and must abide by the Indian constitution much like any other state in India.[3] The repeal additionally removed the specific privileges and protections granted to Kashmiri permanent residents — particularly the protection of property rights.[4] The reorganization act split the Indian state of Jammu and Kashmir into two government-run union territories, which enabled India to have a more direct influence over people in these areas.[5] With the removal of Article 370 and more importantly its provision protecting Kashmir land from outside encapsulated in Article 35A, non-Kashmiris now have the legal ability to purchase land within Kashmir.[6] This constitutional change has been supplemented by a variety of land reform acts enacted in October 2020.[7]

Article 370 delineates the extent of Kashmir’s semi- autonomous status from the Indian central government.[8] Article 35A is a provision within Article 370 which articulated and regulated the rights and privileges of Kashmir’s permanent residents, including the power to restrict settlement to the state and acquire immovable property.[9] Article 35A of the Constitution had a practical function for preserving Kashmiri identity.[10] More significantly, the local government had the power to bestow these special privileges instead of the federal government. The effect was that only Kashmiris with the proper residency documentation could own property in a region that India has claimed as its own both domestically and internationally. Hence, Kashmir's indigenous people and those with a documented permanent residency, would have priority in buying land, taking jobs and other opportunities within a disputed and military occupied territory. While 370 and 35A provided a degree of autonomy to Kashmir prior to their abrogation in 2019, they were not solid protections against the Indian state’s aims to claim the entire region of Kashmir in full.[11] As a result, the region is routinely subjected to the political whims of the central government.[12]

The land reforms are a part of the BJP’s long-standing agenda of abrogating Kashmir’s “special status” and further incorporating Kashmir into India. The land reforms need to be examined in light of increased militarization in the valley over the past two years since the constitutional changes in 2019. With over 700,000 Indian forces, Kashmir is already the most militarized region in the world, with militarization only increasing since August 2019.[13] Further, by giving the military extra-legal powers, like the Armed Forces Special Powers Act, the state has given the military immunity against all the war crimes and human rights abuses they commit on Kashmiris.[14] India uses the law to further repress Kashmiris and take away their basic rights, like the freedom of expression, movement, association, and access to internet and media.[15] Laws like the Public Safety Act and the Unlawful Activities (Prevention) Act are meant to further criminalize any and all forms of dissent. For example, a Facebook status against India can land someone in jail.[16] Within the context of the Indian military’s intense militarization, surveillance, and systemic human rights abuses, the Indian Central Government’s new land reforms are even more concerning.

The category of “permanent resident,” which previously protected indigenous Kashmiris’ rights, has been undermined and replaced with “domicile.”[17] The new law provides a pathway to Indians who have resided, worked, and studied in Kashmir to obtain domicile certificates.[18] These certificates are government-issued documents proving a person’s residency and giving them access to state jobs and welfare schemes.[19] It is expected that the category of domicile will extend to other benefits such as government jobs, housing, and education.[20] Moreover, the process for Kashmiris to obtain domicile certificates, which requires them to show a permanent resident certificate (“PRC”), risks stripping them of their existing rights.[21] Without adequate documents, they will be rendered stateless in their own homes and dispossessed from education, employment, and land rights, leading to massive displacement.[22] Diaspora Kashmiris and their children who do not have PRC will be ineligible, as will refugees or exiles from Indian occupied Kashmir.[23] The domicile laws, combined with India’s increasingly Islamophobic policies, pave the way for mass displacement of tribal and Muslim Kashmiris from Kashmir, which potentially makes the region’s Muslim-majority into second-class citizens.[24] Legal experts also have raised concerns on how the new land reform and domicile laws violate Kashmiri, Indian, the Geneva Convention, and other international laws.[25]

Empty houseboats are seen at Dal lake, in Srinagar, Sept. 17, 2019. Reuters/Francis Mascerenhas

On top of the new domicile laws, the Indian government also has enacted large-scale land reform laws, which have either repealed or amended four major state laws that governed ownership, sale, and purchase of land in Kashmir.[26] These include the Kashmir Agrarian Reforms Act-1976, the Jammu and Kashmir Land Revenue Act-1996, the Jammu and Kashmir Alienation of Land Act, 1938, and the Big Landed Estates Abolition Act, 1950, which provided protections on land holdings for permanent residents or “permanent resident certificate holders” as defined by laws of the erstwhile state of Jammu and Kashmir.[27] The Big Landed Estates Abolition Act also specifically prohibited transfer of land to non-state subjects.[28] The Act also barred non-residents from applying for jobs in the state.[29] The central government, however, weakened all of these acts, even though each support agrarian reform and supplement Article 35A.[30]  Now that Article 35A is abrogated, the Indian central government can repeal state laws that protect Kashmiri land, since Kashmir is now under the constitutional control of the Indian central government.[31]

The administration argued that the move is aimed at providing the people of Jammu and Kashmir a “modernized” land management system that is people-friendly, and brings greater transparency in land management.[32] The new land reforms have not only cleared the path for non-residents to buy land in the territory but also handed over unbridled powers to the government to take over any land in Kashmir.[33] Besides approving land conversion, the government can now declare any area as “strategic” for use by the armed forces, take over any land for “industrial use” or “public use” or “any other use” without restriction.[34] Simply, anyone from outside Jammu and Kashmir can buy agricultural land with the government’s permission for commercial and other non-agricultural purposes.

Since 2019, the government has already earmarked land for non-Kashmiri investors and planned an investment summit in Kashmir to facilitate the bidding even during the COVID-19 pandemic.[35] New land orders have already been administered, largely removing the “permanent residency” clause across Kashmir's land regime.[36] The new laws empower non-Kashmiris to repurpose agricultural land for nonagricultural purposes and the government now has the additional ability to designate “strategic area[s]” for military use without the previously required consultation with local government. [37] Kashmiri businesses have meanwhile continued to struggle in the wake of the internet and COVID-19 lockdowns while outside investors seek to purchase large tracts of land.[38] Within days after the abrogation of Article 370, Indian corporations like Reliance Industries began making plans to invest heavily into Kashmir.[39] Profits of these investments will go to these corporations in India. Indian companies are also given rights to important industries like mining.[40] Indian businesses also seek to dominate the travel, tourism, and hotel industries.[41] As more economic and employment opportunities are opened up to Indians, Kashmiris will be deprived of what little job security they had.[42] Along with exploitation of water resources for electricity production, the Indian state has allocated huge land properties for army use, industrial development projects, and anticipated domiciles.[43] This appropriation of land and resources will continue to result in massive deforestation across Kashmir, exacerbating environmental degradation and further intensifying the climate crisis in the region.[44]

With the abrogation of Articles 370 and 35A, non-Kashmiri will have increased capital to take over Kashmiri lands and potentially displace thousands of native Kashmiris.[45] The ruling BJP Party has already called for the establishment of Hindu-only settlements in Kashmir.[46] These settlements will come with their own militarized infrastructures, which disconcertedly resembles apartheid systems of legalized discrimination and segregation.[47] In addition to these settlements, top Indian officials have called for “deradicalization camps” for Kashmiri youth, which mirrors internment camps for Uighur populations in China.[48] With the recent changes to extend property rights to Indians, India is attempting to bring a drastic demographic threat to Kashmiris.[49] These laws ensure a pathway for non-Kashmiris to buy land in Kashmir, take advantage of economic opportunities previously reserved for Kashmiris and usurp natural resources in the region.[50] With this change, the non-Kashmiri population in Kashmir will significantly increase, which makes the right for self-determination more difficult for Kashmiris.[51]

[1] See Article 370: What happened with Kashmir and why it matters, BBC (Aug. 6, 2019), https://www.bbc.com/news/world-asia-india-49234708.

[2] See From Domicile to Dominion: India's Settler Colonial Agenda in Kashmir, 134 Harv. L. Rev. 2530 (2021).

[3] See id.

[4] See id.

[5] See id.

[6] See id.

[7] See Naveed Iqbal, Explained: What land laws have changed in J&K? How have parties responded?, Indian Express (Nov. 18, 2020), https://indianexpress.com/article/explained/jammu-kashmir-land-laws-changes-7047920/.

[8] Article 35A, The Constitution of India, 1950.

[9] See Kelly Buchanan, FALQs: Article 370 and the Removal of Jammu and Kashmir’s Special Status, Libr. of Cong. (Oct. 3, 2019), https://blogs.loc.gov/law/2019/10/falqs-article-370-and-the-removal-of-jammu-and-kashmirs-special-status/.

[10] See Haris Zargar, Modi advances settler colonial project in Kashmir, New Frame (June 15, 2020), https://www.newframe.com/modi-advances-settler-colonial-project-in-kashmir/.

[11] See Angana P. Chatterji, Kashmir: A Place Without Rights, Just Sec. (Aug. 5, 2020), https://www.justsecurity.org/71840/kashmir-a-place-without-rights [https://perma.cc/Y4GS-QD4Z].

[12] See id.

[13] See id.

[14] See India: Parliamentarians must repeal the Armed Forces (Special Powers) Act, Amnesty Int’l (Dec.10, 2009), https://www.amnesty.org/es/wp-content/uploads/2021/07/asa200222009en.pdf; Kashmir: UN Reports Serious Abuses India, Pakistan Should Accept Findings, Ensure Justice, UN (July 10, 2019), https://www.hrw.org/news/2019/07/10/kashmir-un-reports-serious-abuses.

[15] See Billy Perigo, India’s Supreme Court Orders a Review of Internet Shutdown in Kashmir. But For Now, It Continues, Time (July 10, 2020), https://time.com/5762751/internet-kashmir-supreme-court/. 

[16] See id.

[17] Stand with Kashmir, Kashmir: Understanding the New Domicile Laws, YouTube  https://www.youtube.com/watch?v=wmaDrgg5DWg. 

[18] See id.

[19] See id.

[20] See id.

[21] See id.

[22] See id.

[23] See id.

[24] See id.

[25] See id.

[26] See Iqbal, supra note 7.

[27] Id.

[28] See id.

[29] See id.

[30] See id.

[31] See id.

[32] Id.

[33] See Mudasir Ahmad, Contrary to Government Line, New J&K Land Laws Can Effect Sweeping Changes, The Wire (July 29, 2020), https://thewire.in/rights/jammu-kashmir-new-land-laws-sweeping-changes-government. 

[34] Id.

[35] Pre-summit Investors' Meet & Curtain Raiser, JK Glob. Invs. Summit, https://jkinvestorsummit.com/curtain-raiser [https://perma.cc/F7RR-KXHN].  

[36] Union Territory of Jammu and Kashmir Reorganization (Adaptation of State Laws) Fifth Order, 2020, S.O. 3808(E), Ministry of Home Affs. (Notified on Oct. 26, 2020).

[37] Id. at Section 6-7.

[38] See Nusrat Sidiq, Kashmir's Mineral Contracts Largely Handed to Non-locals, Anadolu Agency (July 27, 2020), https://www.aa.com.tr/en/asia-pacific/kashmir-s-mineral-contracts-largely-handed-to-non-locals/1923634 [https://perma.cc/PD4M-R5MM].

[39] See id.

[40] See Ahmad, supra note 33.

[41] See id.

[42] See id.

[43] See Athar Parvaiz, Under President’s rule, J&K has given up 243 hectares of forest land for army and paramilitary use, Scroll.in. (Dec. 16, 2019), https://scroll.in/article/946888/under-presidents-rule-jammu-kashmir-is-axing-1471-trees-in-designated-forests; Sunil Kumar, Here’s How Mindless Deforestation Will Jeopardise Ecological Balance In Kashmir, Youth Ki Awaaz (Feb. 28, 2020), https://www.youthkiawaaz.com/2020/02/mindless-deforestation-will-jeopardise-ecological-balance/.

[44] See id.

[45] See Ahmad, supra note 33.

[46] See India’s BJP to revive Hindu settlement plan in Kashmir, Al Jazeera, https://www.aljazeera.com/news/2019/7/12/indias-bjp-to-revive-hindu-settlement-plan-in-kashmir-report.

[47] See id.

[48] Id.

[49] See id.

[50] See Zargar, supra note 10.

[51] See id.