Revoking Rights and Reigniting Resistance in Kashmir: A Constitutional Crisis
It starts not with the sound of war, but with the silence that follows—the silence of curfews, blacked-out media, and families huddled in fear as the hum of drones replaces the voice of freedom. The valleys of Kashmir, once alive with the songs of nature and culture, now resonate with a haunting stillness. This silence, however, is not peace—it is suppression. And at the heart of this orchestrated quietude lies the Indian government’s unilateral decision to revoke Articles 370 and 35A on August 5, 2019.
Author: Tayyaba Khan
The abrogation of Article 370 and 35A was not just administrative change but a violent rupture in South Asian history—stripping Jammu and Kashmir's autonomy and silencing a long-contested people. The Kashmir conflict did not come up as a contemporary political nuisance. It is a cut that was left open following the unfinished and hasty division of the British India in 1947.
The Instrument of
Accession, as it was called, signed by the Maharaja Hari Singh under duress and
coercion has always been a disputed document with answers to more questions
than it had answers to. It is not lost on even India and one of the founding
fathers Jawaharlal Nehru. In several official messages, including his December 1947
telegram to Pakistan's Prime Minister, Nehru pledged a UN-supervised
plebiscite, committing to let the people of Jammu and Kashmir decide their own
future.
These promises were to be fulfilled decades ago and have little by little been corroded by changes in political interests. India has suddenly been saying that these promises are quite out of date, the UN resolutions have grown old. But does that not make a resolution invalid too, in case of an old age negates its relevance, would that mean the United Nations too shall become irrelevant in the same sense? Not only are such excuses weak, but also they are threatening as they create gateways towards picking and choosing the international legal norms.
Article 370 in the Indian constitution initially recognized the distinct status of Jammu and Kashmir and allowed it to have a legislative autonomy over all other issues except defense, foreign policy, etc. Article 35A has further given power of the state to declare, who constitutes the permanent residents and provide them exclusive rights over properties and jobs, basically protecting the local demography and culture against outside influence. These were not the rights of privilege; they were safeguards which grew as the result of a sensitive political compromise.
The most sinister aspect of this move is when and how it is being done. The state was under President’s Rule and there was not a state government elected. Consent of Article 370 was not through any democratically expected legislature, but the consent was given through a measure of New Delhi chosen governor.
There is nothing covert or secretive about the factors behind the abrogation. It was an old pledge in the BJP electoral manifesto- an appeal to nationalist feelings and hard line Hindu. This move enabled the ruling party to flaunt its macho outlook to the national integration and Pakistan and that it became a slogan to buy votes as opposed to a peace formula.
In addition, the government allowed demographic engineering with the abolishment of the laws that barred the outsiders to purchase land in Kashmir. The objective was obvious; to facilitate the Kashmir making more manageable and compliant and less hostile to both the ideology of Hindutva and Hindus. Occupation is one thing, but what scares Kashmiris is erasure, the loss of their cultural, religious, and historical identity.
The response from Kashmir was swift and unequivocal: rejection. Kashmiri leaders across the spectrum, from pro-India voices to pro-independence factions, denounced the move. The masses, silenced through force, nonetheless voiced their resistance in whatever ways they could—through strikes, boycotts, and online activism whenever internet services were briefly restored. The collective dissent, though muted by repression, has not disappeared.
Pakistan came out to be the loudest voice on Kashmiri rights internationally. Through platforms such as the United Nations and the Organization of Islamic Cooperation (OIC), Islamabad voiced its support to the right to self-determination of people of Jammu and Kashmir repeatedly.
Legal experts like A.G. Noorani have called the abrogation “a constitutional fraud.” Under India's own legal framework, such a move required the approval of the Constituent Assembly of Jammu and Kashmir—which ceased to exist in 1957. Using the state governor’s consent as a replacement is not only a legal stretch but a complete undermining of constitutional integrity. The very foundation on which the decision rests is legally questionable, if not entirely void.
On top of the question of legality there is a bigger question of morality: Can a democracy deprive the rights of a people, obliterate their own autonomy, mute their thoughts, and yet claim to be a democracy anymore? The solution to this should go without saying. The case of Kashmir is not a question of law and constitutions but of human dignity, self-determination and justice.
History also portrays to us that oppression cannot be maintained as legitimate. The silence with which Kashmir is surrounded today, is not one of submission but survival. India’s unilateral abrogation of Articles 370 and 35A may have temporarily altered the legal landscape, but it has only further alienated the hearts and minds of the Kashmiri people.
It has compounded an already festering wound and turned a political dispute into a humanitarian crisis. August 5, 2019, marked not reform but subjugation until justice and self-determination are restored, Kashmir’s silent cry will haunt the conscience of the world.
Ms.
Tayyaba Khan is a researcher in International Relations, interested in regional
dynamics and geopolitics, focusing on the regions and their geopolitical
challenges. She is currently serving as an intern at KIIR. She can be reached
at tayyabakhan801@gmail.com