Indian Legalisation of Demographic Change in Kashmir

There is a palpable fear that the demographics of the Indian-administered Jammu and Kashmir (J&K) are set to change after a series of moves by the Indian government which have allowed outsiders of the state to work and settle there.

In one of these moves, Indian authorities decided to grant domicile certificates, which allowed outsiders of J&K to apply for local government jobs. The reason why India can grant these certificates is because it revoked Article 370 on 5th August 2019, under which Indian citizens who were not permanent residents of J&K could not work in the local government and were not permitted to buy property. India also abrogated Article 35(A) which defined a “permanent resident” as either someone who lived in the state when the law came into effect as of 14th May 1954 or anyone who has lived in the state for 10 years.

According to the Census Commissioner in India, as of the 2011 Census, 68.3% of J&K’s population was Muslim. This meant that the special status of J&K had been successful in maintaining the demographics of the only Muslim-majority state under Indian control.

Subsequently, the Indian government has sought to reorganise J&K through the Jammu and Kashmir Reorganisation Act, 2019 which reconstituted the state into the two union territories of J&K and Ladakh. On 27th October 2020, further legislation was implemented in the form of a third order of reorganisation which allows any citizen of India to buy land in J&K after the “permanent resident of the state” clause was omitted. This has been condemned by Kashmiri politicians, who claim that it puts the J&K land “up for sale.”

Critics of these decisions believe that the Indian government seeks to alter the demography of J&K to make Kashmiris a minority. According to the Census Commissioner in India, as of the 2011 Census, 68.3% of J&K’s population was Muslim. This meant that the special status of J&K had been successful in maintaining the demographics of the only Muslim-majority state under Indian control. However, the number of laws and acts within the Constitution which protect J&K’s demography, are dwindling.

History

Article 370; under the Constitution of India, granted special status to J&K which is a part of the disputed region between India, Pakistan and China. The article was drafted by the Indian Prime Minister at the time, Jawaharlal Nehru, and the first Prime Minister of J&K, Sheikh Abdullah, after Maharajah Hari Singh of J&K agreed to the state’s accession to India.

The provision of Article 370 should only have been temporary, given that a plebiscite was meant to take place to allow the people of J&K to achieve self-determination. It was General Lord Mountbatten who had encouraged a plebiscite to occur so that accession would be confirmed by the vote of the people.

Insistence upon holding a plebiscite increased after three United Nations Security Council Resolutions (UNSCRs) called for a plebiscite to be held in order to resolve the conflict over Kashmir. Resolution 47, for example, of the 21st April 1948, aimed to secure peace in the region through the following recommendations:

  1. To Pakistan: its nationals should withdraw from J&K who are not residents there and support the freedom of J&K’s residents to express their views and vote on accession.
  2. To India: withdraw its troops to minimum strength to prevent intimidation, re-establish law and order and support the Plebiscite Administration.

But the plebiscite, to this day, has not been held and both India and Pakistan have held each other accountable.

Legality

It has been widely debated whether the decision by Indian authorities to revoke these articles and potentially cause a demographic change in J&K is legal.

The text of Article 370 states that it may only be modified “in consultation with the Government of the State.” Critics would thus suggest that the unilateral decision by the Indian government is not legal. For example, AG Noorani, a constitutional expert, claimed that the revocation was “an illegal decision, akin to committing fraud.” Conversely, supporters of the move suggest that it is legal given that the federal government assumed control after the state government became a minority, which means the federal government can rightfully revoke the articles.

The legality of the suspected changing demographics in J&K might be considered in comparison to the situation in Palestine, given that many have drawn parallels between the two regions. With regards to Israeli settlements in occupied Palestine, Amnesty International states that: “Israel’s policy of settling its civilians in occupied Palestinian territory and displacing the local population contravenes fundamental rules of international humanitarian law.”

Now that the region no longer has its special status and Islamophobia has become mainstream in India with a surge of anti-Islam conspiracy theories, uncertainty and fear among Muslims in J&K is nothing but understandable.

It also suggests that for an occupying force to place its civilians within an occupied territory is contrary to Article 49 of the Fourth Geneva Convention. The Israeli settlement policy is therefore unequivocally regarded by Amnesty International as a violation of international humanitarian law.

Though the comparison is not perfect given that the situations between J&K and Palestine differ, there is a reason for concern. Many consider the Indians to be occupying J&K and thus to settle non-Kashmiris in the state could be viewed akin to a war crime as it is in Palestine. Similarly, some Kashmiris are being displaced as they report being forcibly removed from their places of work or evicted from their homes without due process.

Consequences

Unfortunately, regardless of whether this move was legal or not, the revocation of the articles may have momentous consequences for the prospect of a plebiscite. If India continues to allow non-Kashmiris from other Indian states to settle and work in the government there, J&K may no longer be constituted of a Muslim-majority population. When a plebiscite or referendum is finally held, as per the UNSCRs, the results will be affected by the changing demographics. The prospect of non-Kashmiris deciding the fate of Kashmiris is just one of the concerns hanging over their heads, as they continue to suffer human rights violations.

Many will dismiss these fears as mere paranoia and conspiracy. But it cannot be doubted that the provision of Articles 370 and 35(A), whether temporary or not, were designed to protect the demographics of J&K. Now that the region no longer has its special status and Islamophobia has become mainstream in India with a surge of anti-Islam conspiracy theories, uncertainty and fear among Muslims in J&K is nothing but understandable.

Look at the situation holistically. The Indian government has revoked the special status of J&K and is gradually altering the laws that determine the demographics of the state in the name of “development.” These steps characterise a disregard by the Indian government towards the UNSCRs which recommend a plebiscite and exacerbate the worries of Kashmiris who continue to campaign for freedom and self-determination.

Mary Hunter

Mary Hunter

Mary Hunter is a postgraduate Research Fellow at the Centre for Army Leadership, based in the Royal Military Academy Sandhurst. She is also Research Fellow at the London Institute of South Asia and regularly writes articles on Pakistan and its diaspora in the UK.

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