This article is written by Siddhant Srivastava.
Since 1947 India and Pakistan have been in a state of war and conflict over the northernmost geographical region of Indian subcontinent i.e. Kashmir. This beautiful and full of mountain territory which is now claimed by both India and Pakistan was once a princely State of India.
The independent India came into existence on 15th August, 1947 and eventually Pakistan was also formed as a separate sovereign nation. Amidst all this the main issue was that how the territories were to be divided between India and Pakistan who were now two independent nations. Which parts of British India would fall in the territory of India and Pakistan respectively was a vague subject which needed an immediate solution. This solution was provided by “The Mountbatten Plan of 1947”. This specific plan had two objectives. Firstly, to divide British India into two dominions namely India and Pakistan and secondly, to decide over the fate of princely States that of which of the two nations they would become a part of or they would declare themselves as independent States. Following this scenario it was decided that all those areas which were homes to majority of Muslim population would become the part of Pakistan.
To enact The Mountbatten Plan of 1947, British Parliament passed the “Indian Independence Act, 1947”. The execution of the plan faced certain obstacles due to provinces of Punjab and Bengal since their demographics said that they had almost equal population Hindus and Muslims. For the purpose of creation of boundaries, two boundary commissions were set up for Punjab and Bengal respectively whose mandate was to keep intact as much as possible the Hindus in India and the Muslims in Pakistan. These commissions were chaired by Sir Cyril Radcliffe.
Though two separate nations were existing but the boundary which was vital to demarcate the territories of these nations was absent. Finally after 2 days of India’s independence i.e. 17th August, 1947 Radcliffe line was drawn between India and Pakistan. All these incidents gave rise to religious riots which led to a lot of bloodshed leaving thousands of people dead in the name of religion.
After the Radcliffe line was drawn the question regarding princely States kept knocking the door of British and Indian leaders. These princely States had an option to either secede and declare themselves as independent States or join any of the two new independent nations. This big task of integrating these princely States was taken up by Sardar Vallabhbhai Patel and V.P Menon who were known for their meticulous administration and sheer eye crossing hard work. All tactics were utilized to stitch the geography of India by convincing the Princes or Maharajas of the princely States who were known for being unscrupulous and for the varying ego they used to carry which was a test of patience for everyone involved in this gigantic task of integration of princely States which dotted the map of India.
Summarizing these tactics it can be said that India adopted the Carrot & Stick approach for the fulfilment of the aforesaid purpose. Granting of Privy Purse as an incentive for the maintenance and expenditure of the States to the Princes and Maharajas proved to be the Carrot in this case. All the States which were towards India from the Radcliffe line had to face the stick and were warned of India’s military action against them if they refused to join the Indian territory and hence Indian leaders with aplomb moved a step ahead in their journey of deciding the geography of Indian nation.
Destiny of 565 princely States was yet to be decided then out of the blue another stumbling block came in front of the Indian leaders. Out of 565 States, 13 decided to join the territory of Pakistan and other 549 States became a signatory to Instrument of Accession with India and hence decided to adopt the Indian Constitution with full and immediate effect. 3 princely States that were refraining to join the Indian territory for their own reasons were Junagadh, Hyderabad and Jammu and Kashmir.
Even after the consistent efforts by the Indian leaders the Nawab of Junagadh decided to join Pakistan rather India by stating that though Junagadh was surrounded by Indian subcontinent from 3 sides but it could join Pakistan by sea and hence he signed Instrument of Accession with Pakistan to which India retaliated by shutting down the borders to Junagadh which led to ceasing of shipment of any good. Seeing the vagary of India, Pakistan initiated peace talks to protect the Muslim population of Junagadh and their interests as well and handed over the administration of the State to Indian government. All this led to the taking place of a plebiscite or a referendum in 1948 in which the dominant Hindu population of Junagadh decided to become a part of Indian territory.
The State of Hyderabad was also in the limelight of Indian government. Being the richest and prosperous State its annexation was vital for India. The Nizam of Hyderabad had his own staunch stand of becoming an independent State. In fact on 15th August, 1947 he declared Hyderabad as an independent nation. In the aftermath of Hyderabad’s declaration as an independent State it even initiated the process of arming itself for which there were rumours that it was getting necessary aid from Pakistan and the Portuguese in Goa. This plunge of the Nizam of Hyderabad was condemned by Sardar Vallabhbhai Patel and he said- “Independent Hyderabad is an ulcer in the heart of India which needed to be removed surgically.” Following this, “Operation Polo” was launched by the Indian government with the aim to wage a war against Hyderabad and attach it to India which was successfully achieved after a 5 day war.
The princely State of Jammu and Kashmir was eminently known for having its own legislations for protection of its citizens and their rights; an objective which the Indian government was trying to achieve by framing the Constitution was already to an extent achieved by Jammu and Kashmir long back. Out of the multiple rights which were given to the citizens of Jammu and Kashmir one of them was “Right to Property”. When the talks of annexation of different princely States was catching heat, one question was waiting for an answer that after integrating with India and adopting the Indian Constitution by the State of Jammu and Kashmir, whether the Right to property would be exclusively applicable for the citizens of Jammu and Kashmir or would it be applied to the entire territory of India. Parallel to this question it was observed that the circumstances in Jammu and Kashmir were quite similar to that of Junagadh and Hyderabad. At that point of time the Maharaja of Kashmir was Hari Singh who was a Hindu. Since the majority of population of Kashmir was Muslim, a conjecture was formed that Kashmir will become the part of India. But, Maharaja Hari Singh signed a standstill agreement with both India and Pakistan and declared his intention of establishing Jammu and Kashmir as an independent State.
In October 1947, Pakistan slowly through its armed tribesmen started infiltrating Jammu and Kashmir to occupy the area and establish their territory by dethroning Maharaja Hari Singh. The State was in turmoil and then Maharaja Hari Singh asked the Indian Government for its assistance. The stand of Indian government was that they could not provide any aid to Kashmir since it was not a part of Indian territory which made the Maharaja of Kashmir sign an Instrument of Accession (IoA) with the government of India on 26th October, 1947 following which the matters of defence, foreign affairs etc. was handed over to the Indian government. As soon as the IoA was signed, Indian troops came to Kashmir and the situation was put to a bit control.
In January 1948, due to forceful encroachment by Pakistan to some of the territories of Kashmir, India took the issue to the United Nations who in turn suggested a plebiscite but it could not take place since both the nations could not arrive at an agreement on how they will withdraw their respective troops from Kashmir. The nebulous stage of Kashmir and both the nations’ inability to come to an agreement for referendum made way for a Ceasefire Agreement also known as the “Karachi Agreement” being signed by India and Pakistan on 1st January, 1949 which was mediated by United nations and resulted in the formation of Line Of Control (LOC) and it was decided that both the nations would be in control of that precise part of Kashmir of which they were currently in control of by stationing their respective troops. Therefore 70 years India has control over two third territory of Kashmir whereas Pakistan has its authority over one third part of Kashmir which is now known as Pakistan occupied Kashmir (PoK). After the Maharaja of Kashmir signed the Instrument of Accession, at that point of time Sheikh Abdullah was emerging as a fresh new face of Kashmir as its leader as he was always on the forefront to represent the problems of the Kashmiris. On one hand there was an option of plebiscite as suggested by the United Nations, whereas on the other hand, Sheikh Abdullah was gaining popularity and support of the people of Kashmir and was turning out to be a hero for them.
Amidst all this chaos, a thought crossed Pt. Jawaharlal Nehru’s mind which was to bring up something for the people of Kashmir so that even if the plebiscite takes place then they vote in favour of India. He wanted to make the people of Kashmir feel India as their safe and secure home. This thought of Pt. Jawaharlal Nehru sowed the seed of Article 370. In order to achieve what was thought a meeting was held between Sheikh Abdullah and the Indian government which is popularly known as the “Delhi Agreement” in which the discussion took place on the conditions of the Instrument of Accession and to incorporate this Instrument of Accession into the Indian Constitution Article 370 was introduced.
In 1949, the Constitution of India was still in the making but since the Instrument of Accession was signed, special status had to be given to the State of Jammu and Kashmir. On 17th October, 1949 in order to give special status to the State of Jammu and Kashmir Article 370 was incorporated in the Constitution.
Article 370 falls in the XXI part of Indian Constitution, which provides temporary, transitional and special provisions to 12 different States of India and Jammu & Kashmir is one of those 12 States. Parliament has the power to make laws for the subjects which falls in the Union list and the Concurrent list for all the States of India but due to Article 370, the law making power of the Parliament is restricted. As far as Kashmir is concerned, Parliament can make laws only on those subjects of union and concurrent list which were agreed upon in the Instrument of Accession which were Defence, Communication and External Affairs. These three areas fall under the ambit of total 31 subjects of union and concurrent list. Apart from these 31 subjects if the Parliament wishes to make laws on any other subject for Jammu & Kashmir then firstly they would need to take permission from the State government of Jammu and Kashmir. Generally, whenever Parliament makes any law for the nation it gets enacted with immediate effect in entire India but in the case of Jammu & Kashmir different road is taken for the enactment. The law passed by the Parliament would go to the State assembly of Jammu & Kashmir for its ratification. If it gets ratified then that law becomes applicable in the State.
The complexity of Article 370 does not come to an end here. Regarding the applicability of other Articles of the Indian Constitution it says that apart from Article 01 and Article 370, all those provisions would be applicable in the State of Jammu & Kashmir which was specified by the President in his 1954 order which is time to time modified as per the need of the Constitution.
The special status provided through Article 370 says that special laws would be made specifically for Jammu and Kashmir and unless contrary to it is mentioned, other laws would not be applicable in the State. Further, Article 370 went on to say that the special status given to the State of Jammu and Kashmir is a temporary provision. Article 370 even spoke for the process of its removal. It could be removed by the President of India through a Public Notification provided the President will require the permission of the Constituent Assembly of Jammu and Kashmir. After the completion of this procedure, Article 370 would cease to exist.
Keeping this information and analysing the present scenario it can be inferred that even though the Article itself mentions about the process of its removal, it could not be done till now because the Constituent Assembly which spoke about Article 370 got dissolved in 1957.
On 26th January 1950, the Constitution of India came into existence which had two important Articles regarding Jammu and Kashmir which were Article 01 which declared Jammu and Kashmir as a State of India and the other one being Article 370 which talked about the temporary special status given to the State of Jammu and Kashmir.
On 14th May 1954, a Presidential order was passed by Dr. Rajendra Prasad who was at the time the President of India named “The Constitution: Application to Jammu and Kashmir order, 1954” by virtue of which Article 35A was incorporated in the Constitution of India. Though this specific Article is not found in the Constitution of India, it can be found in the Constitution of Jammu and Kashmir.
Like Article 370 demarcated a line between Jammu and Kashmir and other States of India, same was the purpose of Article 35A which in turn created discrimination amongst the people residing in its territory. Article 35A said that the laws which are followed in entire India would not be necessarily followed in Jammu and Kashmir. President along with the State assembly was authorized to decide which laws would be applicable in the territory of Jammu & Kashmir. It further mentioned the conditions which would make a person a permanent citizen of Jammu and Kashmir. Permanent residents of Jammu and Kashmir were entitled with special rights and privileges whereas non-permanent residents had to face certain limitations. Through Article 35A and relevant provisions of the Constitution of Jammu and Kashmir it could be decided that who can be a permanent resident of the State. Only those people who, since 14th May,1954 were the State subjects of Jammu and Kashmir or have been residing in it for the past 10 years or who have lawfully acquired immovable property in the State could be granted the status of permanent resident of Jammu and Kashmir.
Discrimination among the permanent resident and non-permanent resident of Jammu and Kashmir for past many years sparked a discussion in the Parliament but the discussion never came to a thoughtful conclusion. Basic right of Right to Vote was only given to the permanent resident of the State and non-permanent residents were kept away from exercising this right because they were not even entitled to the same. Some other examples of discrimination were like that if a Kashmiri woman gets married to an outsider or in other words a non-Kashmiri, then this would result in the forfeiture of her permanent resident status and all her property rights. The Hon’ble Supreme Court in the case of the State of Jammu and Kashmir v. Dr. Susheela Sawhney, held that a Kashmiri woman on marrying a non-Kashmiri would not forfeit its permanent resident status as well as her property rights. Her rights would remain intact but she would not be able to transfer such property to her children.
This discrimination eventually proved to be an obstacle in the desired development of Jammu and Kashmir. From land to government jobs, everything in the State could be held only by the permanent resident of the State. None of it can be availed by the non-permanent resident of Jammu & Kashmir. Due to this qualified doctors, teachers, researchers or experts of any field always refrained from going to Jammu & Kashmir.
On 17th November, 1956 Constitution of Jammu and Kashmir came into force which also declared it as an integral part of India. Pakistan has always been strongly opposing to recognize that Jammu & Kashmir is a part of India and in such belief they had continuously fought for the Kashmir territory either through their army or by deploying their troops impersonated as Kashmiri citizens. Displaying strong defence India kept taking back control of the Pakistan affected territories of India occupied Kashmir.
Indo-Pakistan War of 1965
The Kashmir issue including several other events instigated the Indo-Pakistan War of 1965 in which Pakistan resorted to covert operations and launched “Operation Gibraltar” with the goal of promoting infiltration into the State of Jammu and Kashmir and give a boost to a rebellion against India. Since the operation was meant to be covert Pakistani troops entered the State disguised as Kashmiri locals who were very determinant to cause insurgency in the Indian nation. This move was followed by a full military attack by India in West Pakistan. The war which lasted for 17-22 days had involvement of armies, air forces and navies of both the nations which eventually made them bear huge loss of life, money and property. Though both the nations claim being the victor of the Indo-Pakistan war of 1965 but analysing the status of both the nations post war it can be easily inferred that Pakistan made the entire world visible its inadequacy in war affairs and it even failed to garner support from any of the foreign nations.
Seeing the turmoil in India and Pakistan, the United Nations came into the picture and initiated peace talks between two nations or “rival nations”. During this decade India and Pakistan developed their political relations and made stronger ties with Soviet Union and China respectively. Further, as a truce both the nations signed the “Tashkent Declaration” which was a peace treaty and agreed to return the border status of Kashmir to exactly as it was in 1949.
Indo-Pakistan War of 1971
However this truce could not last even a decade and within 6 years i.e. in 1971 another war sparked off between the two rival nations but for a change, this time it was not related to the Kashmir issue. The nation of Pakistan was divided into two sub nations which were West Pakistan and East Pakistan, which was initially East Bengal. These two sub nations could not be integrated as a whole because they were separated by the huge territory of India. Since the West Pakistan held the dominant political power, East Pakistan used to feel discriminated and exploited by West Pakistan. In simple words, West Pakistan miserably failed to give certain recognition to the language, culture and values of residents of East Pakistan which was a residence to thousands of Bengalis. This failure of Pakistan gave rise to the Bangladeshi nationalism which Pakistan could not bear and wanted to suppress. On the night of 25th March, 1971 ruthless “Operation Searchlight” was launched by the forces of Pakistan to end this retaliation once and for all and Pakistan was ready to brutally slaughter who would not submit to their cause and in fact Pakistan did so by adopting the measure of genocide and ensuring devastating violence and slaughter. There is no exact figure of the number of deaths that night but the figure ranges from 10,000- 22, 000. Due to such atrocious act, thousands of Bengalis took refuge in India and on the anticipation of India’s intervention in this scenario, Pakistan launched airstrikes on multiple bases on the western border of the country which marked the starting of war between the rival nations. Response of India for this led to a 13 days long war on the Eastern front resulting in a humiliating defeat for the forces of Pakistan and the nation had to sign “Instrument of Surrender” in December 1971 which in turn gave birth to a new sovereign country : People’s Republic Of Bangladesh.
On the 5th of July, 1990, in order to grapple with the rising instances of armed militancy in the Kashmir valley it was declared as a disturbed area under Section 03 of The Armed Forces Special Powers Act which gave the armed forces the authority to prohibit a gathering a five or more than five persons if they have a suspicion that they might do something in contravention of law. They were even empowered with the authority to arrest on suspicion someone without a warrant and search premises without a warrant. Armed forces were given such authorities and powers in order to maintain public order in the disturbed areas. Through a suitable notification in the official gazette the Central government or the Governor of the State or the Union territory can declare the whole State or a part of it as disturbed.
Kargil War of 1999
The Indo-Pakistan war of 1999, also known as the Kargil war began in May. Pakistani troops managed to infiltrate the Line of Control and got control of several key posts in the State of Jammu and Kashmir. Trying to play diplomatically, Pakistan straightforwardly denied even a bit of involvement in this event and contended that the troops were not of Pakistan. By launching a strong military operation India showed its retaliation and neutralized the troops and recovered the lost territory. Sticking to its false Statement, in the early days of the war, Pakistan even refused to recognize the corpses of its dead soldiers. Later on because of immense international pressure, Pakistan acknowledged its role in the Kargil War due to which it faced a lot of criticism worldwide and its economy which was already on the back foot suffered a lot because of the decrease in international trade.
Now, even after 3 wars with India, Pakistan still continues to promote the idea of ceasefire violation, infiltration, militancy and as the intelligence agency of India claims, supporting the terrorist organizations who have their bases in the Pakistan occupied Kashmir and have only one aim of creating unrest in India.
Present scenario and Removal of Article 35A and 370
In 2015, Bhartiya Janta Party (BJP) formed a coalition government with People’s Democratic Party (PDP) and Mehbooba Mufti was made the Chief Minister of Jammu and Kashmir. After 3 years i.e. in December 2018, BJP broke its alliance with PDP and President’s Rule was imposed on Jammu and Kashmir. In the following year of 2019 BJP emerged as a winner of Parliamentary elections.
After this win, BJP was keen to comply with their election manifesto which clearly spoke out loud about their aim to remove Article 370 and 35A. Through the Presidential Order of 1954 which was given by Dr. Rajendra Prasad, Article 35A and Constitution of Jammu and Kashmir came into existence. On 5th August, 2019 by using his powers mentioned in Article 370(1), President Ram Nath Kovind issued a Presidential order named “The Constitution(Application to Jammu and Kashmir) Order 2019” which said this order would supersede or replace the Presidential Order of 1954. As soon as the Presidential Order of 2019 was passed, existence of Presidential Order of 1954 ceased to exist and with it Article 35A as well as Constitution of Kashmir was abolished.
Following this historic Presidential Order, Home Minister Amit Shah proposed two resolutions. Firstly, since Article 370 is leading to lot of discrimination therefore some changes should be brought in this Article in order to make it inoperative and secondly, he proposed Jammu and Kashmir Reorganisation Bill and said that due to Article 370, complete democracy could not be established in Jammu and Kashmir and State’s development was hindered. Regarding this Statement he stated an example that, AYUSHMAN Bharat scheme is applicable in Jammu and Kashmir but there are not any qualified doctors in the State because of multiple restrictions on non-permanent residents.
The Presidential Order of 2019 removed the deadlock of the requirement of the permission of the Constituent Assembly for removal of Article 370 and added clause (4) to Article 367. Article 367 which is an interpretation clause of Article 370 now said that the word “Constituent Assembly” used in Article 370(3) from now on would mean “Legislative Assembly”.
The second resolution which was Jammu and Kashmir Reorganisation Bill, section 03 of it Stated that a new Union Territory would be formed comprising of Ladakh, Kargil and Leh which would not be having a legislature and its section 04 Stated that another Union territory would be formed which would be called Jammu and Kashmir and would have a legislature as well.
Aftermath: Positives and Criticism
This bold proposed resolution of the Indian government regarding the conflict surrounded region of Jammu and Kashmir created a wave of protests in Rajya Sabha. These resounding protests were highly displayed by some human rights activists and certain portion of the general public as well. The aftermath of this historic decision left the entire world spell bounded and in anticipation as to what the future holds for the newly created two union territories in the northernmost part of Indian subcontinent. As clearly Stated in the election manifesto of BJP this resolution aimed to redraw the map and future of Jammu and Kashmir.
Commendable impacts took place after the removal of 35A and changes brought in Article 370. Enlisting some of them, the government showed the positive side of implementing such resolution. The permanent citizens of Jammu and Kashmir had dual citizenship. One citizenship of being a resident of India and other citizenship of being a permanent resident of the State of Jammu and Kashmir through which they were entitled to certain special rights and privileges which were not available to non-permanent residents of the State. By virtue of removal of 35A all the residents of the State of Jammu and Kashmir were brought to the same status regarding rights and privileges.
Earlier Article 356 and Article 360 of State Emergency and Financial Emergency respectively were not applicable to the State of Jammu and Kashmir but after abrogation of Article 35A and 370 they are made to be applicable in Jammu and Kashmir territory. The State of Jammu and Kashmir had its own State flag which also got removed and like every other State it would be represented by the flag of India.
A lot of discrimination was faced by Kashmiri women and the minorities of the State of Jammu and Kashmir who had almost negligible rights. In fact the Constitution of Jammu and Kashmir did not even mention of minorities in its text. Muslim women were deprived off their right of inheritance and the citizenship of Jammu and Kashmir in case they got married to a man who was not a permanent resident of Jammu and Kashmir. Further the sectors which were discriminated against the non-permanent citizens of Jammu and Kashmir were: Education sector, Employment sector and in addition to it they were not allowed to buy any immovable property of the State.
Many media houses including some international ones between the nebulous circumstances of the conflict ridden State and warning against the escalation of violent activities tried to shift the radar to the ulterior motive of proliferating Hinduism. International media houses were also on different sides as a critic of this decision.
Israel’s “The Jerusalem Post” in their analysis talked about what was the Kashmir conflict and how it had widespread effects on multiple countries such as Afghanistan, Pakistan and the United States of America. The Article titled “Why Kashmir Matters” the author wrote, “This comes as the US wants Pakistan to refrain from stoking tensions where the US is seeking a deal with the Taliban. It also comes as India wants to assert itself and is concerned over another round, like happened in February when its jet was shot down. India which has close relations with Israel, has been trying to modernise its army. The Kashmir tension, therefore have much wider regional and global links.”
Al Jazeera, the Qatar based television news channel displayed the news of abrogation of Article 370 as the highlight of their website with the title of “Darkest day: Uproar as India strips Kashmir special status” which mentioned of an opinion segment titled “There is reason to fear for the safety of every Kashmiri in India”. It said that the decision of the government to snatch the special status of Kashmir from it was “deceitful and illegal”. Further author said that “The revoking of Article 370 is just the latest step in BJP’s grand plan to transform India into a Hindu only nation”.
Saudi Arabia’s Saudi Gazette also Stated the decision of the Indian government as a dangerous blunder claiming that nothing good could come out of the decision plus it published that “The violence has been met with even more violence by the beleaguered Indian security forces ever since the dissolution of State’s assembly in 2018.”
Some news stations mentioned about Pakistan’s reaction about the muscle power decision of the Narendra Modi led BJP government. News Middle East in its report titled “Pakistan anger as India ends special status for Kashmir” which astutely published Pakistan’s exasperation in their Statements when it condemned this decision of India and claimed it as an illegal activity.
One of the most famous publications of the world, US’s The Washington Post published a report titled “India revokes Kashmir’s special status: Raising Fears of Unrest” in which they quoted Iltija Javed, daughter of former Chief Minister Mehbooba Mufti who was put under house arrest as saying that “They feel as if an atmosphere of death is looming over us”.
History of issue regarding Kashmir and the association of India and Pakistan with it has been a ride full of bumps but since 1947 the temptation of India and Pakistan to align Kashmir with their respective territory resulted in decades of conflict and a long period of insurgency which still continues to breathe in both the nations.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.