Justice ® Ali Nawaz Chowhan
On 5th August the Indian government revoked Articles 370 and 35A of its Constitution without any recourse to the Kashmiri people making material breach of the Instrument of Accession, the negotiations conducted in the Delhi Agreement of 1952, the Jammu and Kashmir Constituent Assembly, the UNSC Resolutions as well as its own constitution and judicial precedents. Subsequently, the Indian parliament passed the Jammu & Kashmir Reorganization Bill of 2019 which abolished the State of Jammu & Kashmir, further dividing the region into two ‘union territories’ of Ladakh and Jammu & Kashmir. Since Article 35A emanates from Article 370 it also got revoked pursuant to the Jammu & Kashmir Reorganisation Bill. Even before the partition Jammu & Kashmir enjoyed a semi-autonomy.
This autonomy was recognised in Indian Constitution through Article 370 and 35A. Providing safeguards from demographic change. Indian Parliament could only legislate in limited areas as defined in the instrument accession. Any change could only be brought with the concurrent consent of the Jammu & Kashmir constituent assembly. In 1958, the constituent assembly stood dissolved. Article 370 was interpreted as a temporary arrangement but the Jammu & Kashmir High Court declared it to be a permanent rule.
This had to stay until resolution of this dispute. Jammu & Kashmir is an occupied territory. People there are subjected to crimes against humanity and their voices suppressed and movement curtailed through prolonged curfews. A near million security forces are deployed for this purpose. Jammu and Kashmir is an international conflict area. The perpetrators of war crimes will one day face justice.
Anyway the purpose of these changes is to tilt the demographic balance against the Kashmiris. Therefore under section 96 of the Jammu and Kashmir reorganisation Act of 2019 a new domicile rule has been promulgated and would take the place of abrogated Article 35A.
Under the new rules a domicile certificate is to be issued to anyone for Jammu and Kashmir. This is in violation of Hereditary State Subject Definition of 1927, UN resolutions and Delhi Agreement of 1952. The purpose of demographic change is to bring in aliens and overwhelm the Kashmiri population.
India cannot do thisin the disputed territory under occupation. India also has a criminal intention against Azad Jammu & Kashmir and maybe the Northern Areas of Pakistan who have already acceded. The intention seems to be to demand a plebiscite for the whole region after the influx of Non-Kashmiri aliens in the occupied territory and to later create a fuss after this happens.
Pakistan has to be vigilant and should pursue for legal remedies to check Indian designs under the International law which prohibits demographic changes. The Author is a Honorary Chairman of Legal Forum for Oppressed Voices of Kashmir (LFOVK), a former International Judge of the UN at The Hague, Chief Justice of the Gambia, First Chairman of National Commission for the Human Rights Pakistan, Judge of the superior judiciary, Co-Chairperson UNESCO, Professor of International Law etc.
The writer is former Chairman, National Commission for Human Rights,
Government of Pakistan
