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Umer Khayam and Usman Jahangir Mughal

Umer Khayam is a distinguished scholar with an MPhil in International Relations, during which he secured a silver medal. He is currently pursuing a PhD in the same field at the University of Peshawar. Usman Jahangir Mughal is a distinguished law student at the University of Azad Jammu and Kashmir and the co-founder and Vice President of the UAJK Law Moot Society.

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Hilal English

Kashmir in Focus: The Abrogation of Article 370 and Its Implications under International Law

October 2024

The changes made by the Indian government since August 5, 2019, violate international norms and bilateral agreements, challenging the legal framework of the Kashmir dispute and the international rules-based order.


The ongoing Kashmir crisis has drawn renewed global attention. While the conflict is frequently framed in terms of politics and diplomacy, its core issues are deeply rooted in legal questions. From United Nations (UN) resolutions to India's recent legal changes on August 5, 2019, numerous unanswered legal issues and unfulfilled promises remain. This article delves into the international law pertinent to the Kashmir conflict and the actions taken by the Indian government on August 5, 2019.
At the time of India’s independence, Jammu and Kashmir was a princely state under British rule. The Cabinet Mission Plan and the Indian Independence Act of 1947 provided princely states with the option to remain independent or to join one of the newly formed sovereign states, India or Pakistan. However, since the partition of India was based on the principle of dividing Muslim-majority and non-Muslim-majority areas, the Cabinet Mission determined that the accession of any princely state where the ruler's religion differed from that of the majority of the population would not be valid unless a referendum was held to determine the will of the people.
The Hindu ruler of the Muslim-majority Jammu and Kashmir, Maharaja Hari Singh, initially sought to maintain independence. By August 15, 1947, the state had not joined either India or Pakistan. Instead, the Maharaja signed a 'Standstill Agreement' with Pakistan, transferring certain services like post, telegraph, and railways to Pakistani control. India did not have a similar agreement. The Government of Pakistan accepted the proposal of the Maharaja vide its telegram dated August 15, 1947, while the Government of India did not. After acceptance of the Standstill Agreement by the Government of Pakistan, the State of Jammu and Kashmir came under the sovereignty/suzerainty of Pakistan with the same legal status as it had in British India.
This situation continued until October 1947 when unrest forced the Maharaja to flee Srinagar. On October 26, he allegedly signed an 'Instrument of Accession' joining Kashmir to India. However, India's Governor General responded on October 27, stating that Kashmir's accession would be decided by a referendum after law and order were restored and the state was cleared of invaders.
Legal and Moral Position of Accession
According to the Partition Plan, the Maharaja's decision to accede should have been influenced by the state's demographics and geography. While the Indian Independence Act did not allow the option of complete independence, the Maharaja was expected to accede to Pakistan, given that over 80 percent of the population was Muslim and the state was geographically contiguous to Pakistan, with only a narrow land connection to India through Pathankot.


After partitioning India based on religion, Congress had no legal or moral right to intervene in Kashmir, especially after rejecting Junagadh’s accession to Pakistan.


The Government of India had previously rejected the decisions of the rulers of Junagadh and Hyderabad to accede to Pakistan or remain independent, arguing that the Muslim rulers of these states had no right to decide against the wishes of their Hindu-majority populations. This stance was considered appropriate, so why was the same principle not applied in the case of Kashmir?
P. N. Bazaz1, about the Mountbatten Plan, writes:
“The liberty of action recognized in the Plan was illusory, or at best theoretical, as Congress leaders often disregarded this part of the Plan. For instance, the Muslim ruler of Junagadh in Kathiawar acceded to Pakistan, but the Indian Union attacked and forcibly annexed the state, justifying their actions by stating that the state was predominantly (81 percent) Hindu and surrounded by Indian territory. Similarly, the Government of India annexed Hyderabad under the pretext of addressing Razakar atrocities, even though many argued that the fate of the state should be decided through a plebiscite based on adult franchise. This reasonable suggestion was rejected, assuming that the Hindu majority would naturally favor joining India. This policy of coercion was also employed in other states like Travancore, Indore, Bhopal, and Rampur.”2
In his book, ‘Azad Kashmir’, P. N. Bazaz further argues that:
“India was partitioned based on religion in June 1947, making Kashmir’s future clear—it should have gone to Pakistan. However, Congress leaders persuaded the Maharaja to accede to India against the will of the Muslim majority. Mahatma Gandhi visited Kashmir in August 1947 and secured the Maharaja’s consent for accession. Nationalist leaders, though imprisoned, were consulted and agreed to this plan. Meanwhile, Muslim Conference leaders were kept behind bars, and publications supporting accession to Pakistan were suppressed. Political leaders opposing the government’s policy were silenced, arrested, or deported. The Maharaja ignored warnings about growing unrest, and during August to October, the army brutally suppressed Muslim uprisings in Poonch. When tribesmen entered Kashmir on October 23, 1947, to support their fellow Muslims, this cannot be called aggression. Their intention was to liberate Kashmir from the Maharaja’s tyranny. After partitioning India based on religion, Congress had no legal or moral right to intervene in Kashmir, especially after rejecting Junagadh’s accession to Pakistan.”3
Even Lord Mountbatten, the Governor-General of India, while conditionally accepting the Instrument of Accession, wrote to the Maharaja on October 27, 1947:4
“In the special circumstances mentioned by Your Highness, my government has decided to accept the accession of Kashmir to the Dominion of India. However, in keeping with their policy, the question of accession should be decided according to the wishes of the people once law and order have been restored and the invaders driven out. In response to Your Highness’s appeal for military assistance, Indian troops are being dispatched to Kashmir.”
The United Nations Intervention in the Kashmir Conflict
Following the armed conflict between Indian and Pakistani forces, the Indian Cabinet referred the Kashmir issue to the United Nations Security Council (UNSC) on January 1, 1948, and Pakistan raised its concerns shortly thereafter. In response, the Security Council passed Resolution 39 on January 20, 1948, establishing the United Nations Commission on India and Pakistan (UNCIP) to investigate the conflicting claims. Subsequently, Resolution 47, adopted on April 21, 1948, advised that both Indian troops and tribal forces withdraw from the region, an interim government be formed representing major Kashmiri political groups, and a five-member UNCIP be deployed to help restore peace and facilitate a plebiscite. This plebiscite was meant to determine whether Jammu and Kashmir would accede to India or Pakistan.
However, demilitarization never occurred due to disagreements between the two states. Pakistan insisted on simultaneous withdrawal, fearing potential Indian aggression, as seen in India's annexation of Junagadh and Hyderabad—both princely states where the situation had parallels to Kashmir. India, on the other hand, maintained that Pakistan must withdraw first before it would reciprocate. Since 1949, India has consistently refused any form of demilitarization, citing various reasons, thus preventing the plebiscite from taking place.
The Constitution of India and Jammu and Kashmir
During this time, the Indian Constituent Assembly was in session to draft the Indian Constitution. However, it had become clear that the UNSC was not delivering a favorable resolution for India, particularly regarding the issue of a plebiscite in Kashmir. As a result, India shifted its political and legal approach, seeking to incorporate Kashmir into its Constitution despite the Security Council's stance and the principles of the UN Charter. India's justification for this move was that it would be "unfair to the government and the people of the State of Jammu and Kashmir to deny them the opportunity of participating in the discussions" on India's new Constitution. Despite the sensitivity of the situation, India continued to affirm its commitment to respect the "freely declared will of the people of Jammu and Kashmir."5
Article 306-A was introduced for consideration by the Indian Constituent Assembly, which later became Article 370 of the Indian Constitution. The debates in the Constituent Assembly make it clear that Jammu and Kashmir required special provisions due to India's "entanglement" with the UN over the issue, an entanglement that could only be resolved "when the Kashmir problem is satisfactorily settled." Once again, the Government of India reaffirmed its commitment to allowing the people of Jammu and Kashmir the opportunity to decide for themselves whether to remain with the republic or seek a different path. This commitment included holding a plebiscite, provided that peaceful conditions were restored and the impartiality of the process could be ensured.
India presented Article 370 as an "interim system" and labeled it a "temporary provision," which provided constitutional backing to the Instrument of Accession. This article exempted Jammu and Kashmir from the general provisions of the Indian Constitution and limited the Indian Parliament's legislative authority over the state to three key areas: defense, foreign affairs, and communications. If other constitutional provisions or Union powers were to be extended to Kashmir, the prior approval of the state government was required. This approval was provisional, subject to ratification by the State's Constituent Assembly. Negotiated over a six-month period, Article 370 was regarded as a solemn agreement between the State of Jammu and Kashmir and India.
The Legislative Assembly (Praja Sabha) of Jammu and Kashmir
In October 1951, India convened a Constituent Assembly to draft a Constitution for Jammu and Kashmir. However, according to the International Commission of Jurists, this Assembly was elected "in a manner which deprived it of all democratic legitimacy."6 In response, the UNSC passed Resolution 91 in 1951, asserting that the convening of the Constituent Assembly and any actions it took to determine Kashmir's future would not constitute a final settlement in line with the principle of a free and impartial plebiscite overseen by the UN. The Constituent Assembly was officially dissolved in January 1957 after drafting a separate Constitution for Jammu and Kashmir, declaring the entire former princely state to be an "integral part of the Union of India,"7 in defiance of the Security Council's resolutions. However, the Security Council, through Resolution 122 of 1957, reaffirmed that the actions taken by the Constituent Assembly did not fulfill its previous resolutions that called for a plebiscite.
The Erosion of Article 370
Following the acquisition of support from certain segments of Jammu and Kashmir's political leadership for the inclusion of Article 370 in the Indian Constitution, the Indian Government subsequently deviated from its solemn commitments. As previously outlined, the authority of the State Government to grant "concurrence" on matters beyond the Instrument of Accession was intended to be valid only until the convening of the Constituent Assembly. This limitation implied that the President could not indefinitely extend the Indian Constitution to Jammu and Kashmir. Once the State's Constituent Assembly had finalized and dispersed, the President's extension powers were to cease entirely.
Despite this, over a 50-year period, the Indian Government issued 47 Presidential Orders that extended 260 out of 395 Articles of the Indian Constitution to Jammu and Kashmir, including 94 of the 97 entries on the Union List. This action represents a clear and deliberate erosion of Article 370's intended framework, resulting in Jammu and Kashmir being placed in a significantly inferior position relative to other states within the Indian Union. This outcome starkly contrasts with the "special" and "preferred" status that was initially promised to Jammu and Kashmir by the Indian Government.
Dividing Jammu and Kashmir into Union Territories: Revoking Article 370
In early August 2019, a significant security clampdown was imposed in Jammu and Kashmir. This included orders for tourists to leave the region, the cancellation of a Hindu pilgrimage, the imposition of a communication blackout, restrictions on public gatherings, and the house arrest of local politicians. Additionally, 38,000 extra troops were deployed to the area.
On August 5, 2019, the President of India issued Presidential Order C.O. 272, which introduced several key amendments to the Indian Constitution:
▪  References to the "Government of Jammu and Kashmir" were to be reinterpreted as references to the "Governor of Jammu and Kashmir."
▪  References to the "Constituent Assembly of Jammu and Kashmir" were to be reinterpreted as references to the "Legislative Assembly of Jammu and Kashmir."
▪  The Constitution (Application to Jammu and Kashmir) Order 1954 was superseded with immediate effect.
India’s Presidential Order C.O. 272 was a strategic legal maneuver aimed at dismantling the autonomy and special status of Jammu and Kashmir. It achieved two key objectives: first, by superseding the Constitution (Application to Jammu and Kashmir) Order 1954, it nullified Article 35-A, which had restricted outsiders from purchasing property, obtaining permanent residency, or securing local government jobs in the region. Second, the order simplified the process for repealing Article 370, which previously required the President to act on the recommendation of the now-dissolved Constituent Assembly of Jammu and Kashmir. This move effectively bypassed the requirement and facilitated the abrogation of Article 370. Both the Indian Supreme Court and the Jammu and Kashmir High Court have consistently rejected attempts to repeal Article 370, asserting that the article had attained permanence and could not be revisited or amended. Despite these judicial positions, the Indian Government circumvented this safeguard by redefining the "Constituent Assembly" mentioned in Article 370 to mean the Legislative Assembly of Jammu and Kashmir, effectively dismissing the established interpretation.
With the new framework established, the upper chamber of the Indian Parliament passed a resolution recommending that the President use his powers under Article 370 (3) to fully abrogate Article 370. This resolution was approved by the lower chamber of Parliament on August 6, 2019, leading to Presidential Order C.O. 273, which extended the entire Indian Constitution to Jammu and Kashmir without any modifications or exceptions. Concurrently, the Indian Parliament passed the Jammu and Kashmir Reorganization Bill, which dismantled the State of Jammu and Kashmir and reorganized the region into two Union Territories: Ladakh and Jammu and Kashmir. This move sidestepped constitutional safeguards, as Article 3 of the Indian Constitution requires that any bill altering the name or boundaries of a state be referred to that state's Legislature for review. The Indian Government, however, considered the Indian Parliament as a substitute for the now-dissolved Legislative Assembly of Jammu and Kashmir. The legal actions taken by India between August 5-6, 2019, have been widely criticized as being in open contempt of both its own Constitution and the jurisprudence established by its superior courts. The Indian Congress Party, the primary opposition party, has condemned these measures as ultra vires and contrary to constitutional procedures. The moves have also faced significant criticism from the Indian Bar, including its most senior and respected members.8
By repealing the special protections of Article 370 and 35A, India has unmistakably indicated its intention to renounce its longstanding commitments to the Kashmiri people and to disregard the legal framework established by Security Council resolutions on Kashmir. The subsequent sections will explore the legal dimensions of India's actions regarding the occupation and unlawful annexation of IIOJK and the resulting implications.
Are International Legal Rules Applicable to Annexation?
One of the core principles of international law is that an occupying power cannot gain legal or sovereign title over the occupied territory through conquest or annexation.9 The law of occupation acknowledges that the occupying power is merely the administrator of the territory, holding a temporary or provisional status that does not equate to a transfer or permanent displacement of sovereignty.
Article 55 of The Hague Regulations (1907) defines the Occupying Power as an administrator or usufructuary of the territory, emphasizing that such a power cannot annex or alter the political status of the occupied territory. This principle is reinforced in Pictet’s Commentary to Article 47 of the Geneva Convention IV, which states that the law of occupation only grants the occupying power administrative authority and imposes a series of obligations towards the occupied population.10 Consequently, the occupying power must respect and maintain the existing political and institutional structures of the territory and cannot effectuate annexation or change its political status. This principle was reaffirmed by the Security Council in Resolution 1483 (2003) during the occupation of Iraq by coalition forces, which underscored the commitment to restoring governance to the Iraqi people as swiftly as possible. By altering Kashmir's political status and completely and indefinitely removing its sovereignty and autonomy through the Constitution (Application to Jammu and Kashmir) Order (2019), India has effectively unlawfully annexed the state. This action has transformed the situation from an occupation into an unlawful annexation
India’s Attempts at Annexation are Null and Void Under International Law
India’s actions are parallel to those of Israel in Jerusalem and the Golan Heights. In the 1967 War, Israel captured Palestinian territories, including the West Bank, East Jerusalem, and Gaza. Subsequently, it annexed East Jerusalem and parts of the West Bank through a government decree. The General Assembly condemned this annexation, urging Israel to "rescind all measures already taken and to desist immediately from any actions that would alter the status of Jerusalem."11 Subsequently, Israel extended its laws to Jerusalem with the Jerusalem Basic Law of 1980. In response, the Security Council adopted Resolution 476 (1980), which reaffirmed that “all legislative and administrative measures and actions taken by Israel, the occupying power, which purport to alter the character and status of the Holy City of Jerusalem, have no legal validity and constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War. These actions also constitute a serious obstruction to achieving a comprehensive, just, and lasting peace in the Middle East.” It also called for all states with diplomatic missions in Jerusalem to withdraw them from the Holy City. Similarly, after the 1967 War, Israeli forces seized and occupied the Golan Heights. The Knesset subsequently enacted the Golan Heights Law 5742-1981, extending Israeli law, jurisdiction, and administration to the region. This action was condemned by the Security Council in Resolution 497 (1981), which reaffirmed that the acquisition of territory by force is inadmissible under the UN Charter. The resolution declared that Israel's decision to impose its laws, jurisdiction, and administration on the occupied Syrian Golan Heights is "null and void and without international legal effect." In the Wall Advisory Opinion, the International Court of Justice (ICJ) determined that the construction of the wall and its associated regime created a "fait accompli" that could become permanent, amounting to a de facto annexation12. By unlawfully annexing IIOJK and incorporating it as a Union Territory, India has violated international law. In accordance with Security Council Resolutions addressing Israel’s de jure annexations of the Golan Heights and Jerusalem, such actions are deemed null and void and lack any legal effect.
The Assertion that Demographic Changes in Jammu and Kashmir are Strictly Prohibited Under the Geneva Conventions is a Complex Issue with Differing Interpretations
Under Article 49 of the Fourth Geneva Convention, it is prohibited for an occupying power to transfer civilians from its own territory into the Occupied Territory. This prohibition aims to prevent the occupier from altering the demographic composition of the territory, thus undermining the rights of the local population to self-determination.13 Article 35A of the Indian Constitution initially complied with this requirement by restricting non-Kashmiris from settling permanently in Kashmir or purchasing land there. However, with the removal of this law and the subsequent reorganization of Jammu and Kashmir into two Union Territories, there is a concern that India may be attempting to alter the demographics of the region. Jammu now has a Hindu majority, while Ladakh has a Buddhist majority, leaving Kashmir as the only Muslim-majority region. The potential influx of non-Kashmiri settlers and the bifurcation of the state could significantly impact any future referendums, contravening Article 49 of the Fourth Geneva Convention.
India's demographic engineering in IIOJK has been widely criticized as a deliberate attempt to undermine the region's long-standing demand for a plebiscite under UNSC resolutions. By altering the demographic balance through measures such as the revocation of Article 370 and the implementation of new domicile laws, India aims to create a situation where a fair and representative referendum is no longer possible. This strategic move not only violates international law but also sets a dangerous precedent for other disputed territories. The Comoros case provides a relevant analogy. Following France's occupation of Mayotte and subsequent referendums, the United Nations General Assembly (UNGA) declared these votes null and void, asserting that the demographic changes undermined the legitimacy of the process. Similarly, any referendum held in IIOJK after significant demographic alterations would likely be deemed invalid by the international community, rendering the UNSC resolutions on the disputed territory moot.
The ongoing Kashmir crisis, with its deep-rooted complexities and high stakes for regional and global stability, highlights the critical need for a rigorous examination of its legal dimensions. This article has sought to elucidate the intricate interplay of international law and domestic legislation, particularly focusing on the significant changes made by the Indian government since August 5, 2019. By delving into the legal implications of these actions, it becomes evident that India’s recent maneuvers violate both international norms and bilateral agreements. The analysis underscores that the legal framework governing the Kashmir dispute is not only a matter of historical commitment but also a fundamental test of the international rules-based order. As global attention intensifies, it is imperative for the international community to reaffirm and uphold the principles of international law, ensuring that actions taken in conflict zones like Kashmir align with established legal standards and moral obligations.


Umer Khayam is a distinguished scholar with an MPhil in International Relations, during which he secured a silver medal. He is currently pursuing a PhD in the same field at the University of Peshawar.
Usman Jahangir Mughal is a distinguished law student at the University of Azad Jammu and Kashmir and the co-founder and Vice President of the UAJK Law Moot Society.


       
1.      Prem Nath Bazaz was a Kashmiri politician, scholar, and author born in Mattan, Kashmir. A secularist and democrat, he came from a Kashmiri Hindu family. Bazaz founded two political parties: the Kashmir Socialist Party and the Kisan Mazdoor Conference.
2.       The History of Struggle for Freedom in Kashmir by P. N. Bazaz, P/341.
3.       In his book Azad Kashmir, P.N. Bazaz, P l 32,33.
4.       For text of a letter dated October 26 from the Maharaja of the State of Jammu and Kashmir, Sir Hari Singh, to the Governor-General of India, Lord Louis Mountbatten, requesting acceptance of an instrument of accession and immediate military assistance, see Government of India, White Paper on Jammu and Kashmir, place and date of publication not indicated, pp. 46–47
5.       See Shri N. Gopalaswami Ayyangar’s representations before the Constituent Assembly when Art. 370 was moved for consideration in AG Noorani, The Kashmir Question, (1964) at p.46
6.       Human Rights in Kashmir Report of a Mission, International Commission of Jurists (ICJ) Geneva, Switzerland, 1995, https://www.icj.org/wp-content/uploads/1995/01/India-human-righst-in-Kashmir-fact-finding-missionreport-1995-eng.pdf
7.       'A Timeline of Key Events that Shaped the Unique Identity of Kashmir within India' (qz.com, 2019)
8.       Article 370(2) of the Constitution of India; A.G. Noorani, Article 370: A Constitutional History of Jammu & Kashmir (Oxford University Press 2011)
9.        A.G. Noorani, Article 370: A Constitutional History of Jammu & Kashmir (Oxford University Press 2011)
10.     The Washington Post, Redrawn map may set off more change in Indian-ruled Kashmir, August 7, 2019, available at: https://www.washingtonpost.com/world/asia_pacific/redrawn-map-may-set-off-more-change-inindian-ruled-kashmir/2019/08/06/76df1290-b8b8-11e9-8e83-4e6687e99814_story.html
11.     See for example Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Seventy-second session, October 2017, Doc.A/72/556; Antonio Cassese, International Law, Second Edition, Oxford University Press, (2005)
12.    Jean S. Pictet, The Geneva Conventions of August 12, 1949 Commentary - IV Geneva Convention relative to the Protection of Civilian Persons in Time of War; Article 47
13.    Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Seventy-second session, October 2017, Doc.A/72/556
 

Umer Khayam and Usman Jahangir Mughal

Umer Khayam is a distinguished scholar with an MPhil in International Relations, during which he secured a silver medal. He is currently pursuing a PhD in the same field at the University of Peshawar. Usman Jahangir Mughal is a distinguished law student at the University of Azad Jammu and Kashmir and the co-founder and Vice President of the UAJK Law Moot Society.

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