This article is written by Tarannum Vashisht, a student of the Rajiv Gandhi National University of Law, Punjab. This article enumerates on the constitutional integration of the state of Jammu and Kashmir into the Indian Union and the challenges to this process. 

Introduction

One fine day, the central government imposed a full-fledged curfew in the state of Jammu and Kashmir. All tourists who had come to visit the state were sent home. All internet facilities in the state were disabled. Amidst this state of tension, the central government announced its decision to revoke Article 370 and 35A, which awarded special status to the state. This article is an attempt to trace the history behind this Article and critically analyse the present situation. 

History of the issue on integration of Jammu and Kashmir

British India achieved independence from the British rule and was partitioned to form two independent nations, India and Pakistan. At the time of partition, there were many princely states in British India, which were under the rule of the royals. These states were given the option by the Britishers to either join India or Pakistan or remain independent. Jammu and Kashmir was one such princely state. 

Raja Hari Singh was the ruler of that state, who acceded to India by signing the instrument of accession on 27 October 1947. This instrument involved India and the state of Jammu and Kashmir into a special arrangement, which was materialized in 1950, with the formation of the Indian Constitution. 

This was preceded by a deep-seated dilemma that Raja Hari Singh faced. He knew that he was in no position to maintain an independent nation. So, he was left with two options, either to join Pakistan or India. The ruler was well versed with the fact that Pakistan was a Muslim majority state, formed on the basis of religion. If he chose to accede to Pakistan, he would never be allowed to rule as he was a Hindu. 

Coming to the second option, he was not happy with the leaders of the Indian National Congress as they had ignited the freedom struggle which led to the Partition of the country. Also, he was aware that the Indian National Congress wanted a democratic rule and was in vehement support of the democratic leader, Sheikh Abdullah, whom he had imprisoned for protesting against his rule. 

The ruler could not clear his mind to make an informed choice. Therefore, he decided to enter into a standstill agreement to ponder upon his options and get the necessary supplies to maintain his people. However, Pakistan didn’t trust the ruler and tried to put pressure on the ruler by going to the extent of stopping the supply of essential commodities to the state. 

On 20 October 1947, Pakistani soldiers and raiders invaded Kashmir, as they were fully aware that the army of Jammu and Kashmir was in no position to defeat them. That is when the Indian army came to Raja Hari Singh’s rescue. As a result of this an “Instrument of Accession” was signed between the Indian government and Raja Hari Singh, by which the state of Jammu and Kashmir acceded to India. However, Pakistan acquired Northern Areas and some other areas of Kashmir, which remain under its illegal occupation till date. 

The constitution of India accords a special status to the state via Article 370. This Article provided a unique constitutional status to the state of Jammu and Kashmir, which no other state was provided with. A special system was devised to manage the centre-state relations and provide a special identity to the state. This was in lieu of the instrument of accession which was signed between the Indian government and Raja Hari Singh. 

Coming to the situation of India and Pakistan, the wars of 1965, 1971 or 1999 failed to resolve the issue of Kashmir between these two neighbouring countries. Now let’s jump to Article 370 and analyse its essentials.  

Article 370: how does it make Jammu and Kashmir different from other states

It can be said that Article 370 was the condition that led to the accession Of Jammu and Kashmir to India. The salient features of Article 370 are as follows-

1. First of all, Article 370 makes an exemption for the state of Jammu and Kashmir, such that no law of the Indian Constitution applies to this state. Jammu and Kashmir has its own constitution called the Ranbir Penal Code.
2. The parliament of the Indian constitution has very limited powers extendable to the state of Jammu and Kashmir. If any central legislation is to be made applicable in this state, it has to be passed first by the legislative assembly of this state. 
3. The state had its own flag.
4. The laws governing the people of Jammu and Kashmir are different in respect of citizenship, fundamental rights and ownership of private property. 

Is Article 370 a question of integration or uniformity?

Was Article 370 added in the constitution to designate the state of Jammu and Kashmir as a separate entity or to provide it with some special benefits? As is evident from the constitution of Jammu and Kashmir, it was never the intention of the constituent assembly of Jammu and Kashmir to keep this state separate from the Indian nation. Article 3 of this constitution explicitly mentions that the State of Jammu and Kashmir is an integral part of India.

Jammu and Kashmir has, therefore, always remained an integral part of India. It is evident that the aim of the constitution-makers of the constitution of Jammu and Kashmir was primarily to designate the relations between the Indian Union and the state of Jammu and Kashmir. The constitution of this state always referred to its residents as permanent residents of Jammu and Kashmir, making it clear that they were essentially citizens of India.

Therefore, according to me, even for the ones who wanted an annulment of Article 370, the question was never of integration, rather it was of unanimity. This means that the whole debate was centred on the point that Jammu and Kashmir should be treated as any other state of India. It is often misunderstood by many that Jammu and Kashmir was always a part of India and the real question was always of its unanimity with other Indian states, rather than its integration into the Indian Union. 

Article 35A: explained

Article 35A was made effective via the presidential order of 1954, which specified which articles of the Indian constitution would be applicable to the state of Jammu and Kashmir. This Article is a progeny of Article 370. It empowers the legislative assembly of Jammu and Kashmir to ascertain its permanent residents.

The Jammu and Kashmir constitution was adopted in 1956, giving a definition of permanent residents as those who are subjects of the state as on 14 May 1954 or those who have permanent land in the territory for a minimum period of 10 years. This Article empowers the state legislature to give special benefits to its permanent residents as well. 

Also, this Article implied that no citizen of any Indian state, except that of Jammu and Kashmir, can purchase land in that state or acquire a job in that state. Also, if a female from Kashmir marries someone from any other state, she loses all her rights on any property in the state. The same goes for her children. 

Efforts towards the unification of Jammu and Kashmir

After the passing of the constitution of Jammu and Kashmir in 1956, 43 constitutional orders have been issued by the Indian Union, which effectively restored the Union’s residuary powers with respect to the state of Jammu and Kashmir. All these were efforts towards a more unified India. However, all this resulted in fuelling the demands in Jammu and Kashmir for increased autonomy. Therefore, a state autonomy committee was formed to resolve these claims. The committee submitted its report in the year 1999, its major recommendation being the return of the position of the state as was in 1953.

Another Regional Autonomy Committee was constituted which recommended devolution of power within the state, taking into consideration the ethnic diversity of the region. The central government was not in favour of the autonomy arrangement, however, it was ready to discuss the devolution scheme. The issue of autonomy has not been resolved since then. 

It is pertinent to note here that the autonomy movements in the state are two-fold. On the one hand, some want autonomy from the Indian Union, while others want autonomy from the state. The latter group comprises people of Jammu and Ladakh and non- Muslims, who are fed up from the Muslim majority government of Kashmir.  

Revocation of special status of Jammu and Kashmir

On 5 August 2019 Articles 370 and 35A of the constitution of India were revoked, hence dissolving the special status that the state of Jammu and Kashmir had acquired post its accession to India. The changes that are bound to happen are-

1. People from any states would be able to buy land in Jammu and Kashmir, an option which was previously unavailable to them. 
2. Most importantly, all provisions of the Indian constitution are now applicable to this state as now, the Indian constitution has fully replaced the constitution of Jammu and Kashmir. 
3. All laws passed by the central legislature would become applicable in the state of Jammu and Kashmir. 
4. The state of Jammu and Kashmir would now become a separate union territory, with its own legislature.
5. Ladakh would also be awarded the status of a union territory without a legislature. 
6. The governors of these areas would be advised by the central government, like any other state’s governors. 
7. The word constituent assembly in clause 3 of Article 370, would now be read as a legislative assembly. 

Following are the fears that lurk the minds of Kashmiris-

1. Muslims have a fear that the state would transform from a Muslim majority state to a Hindu majority state, with the centre influencing the election of the state government and also the governance of the state. 
2. The Bharatiya Janata Party has a hidden manifesto to alter the demographic map of the state, by allowing non- Kashmiris to buy land in that state and hence has a hidden agenda to oust Kashmiris from their lands, hence dislocating them.

Competing voices on this issue

For the central government, this step was of utmost necessity. It is of the firm belief that due to the existence of this Article, democracy could never be fully implemented in the spirit in India.

The opposition, however, doesn’t hesitate from describing this step of the central government as nothing short of a catastrophe.

They also point out the fact that this step was not even legal. This is because the constitution of India mentions that Article 370 is not to be done away with solely by the central government, without consulting the state government. However, it is evident that for that whole year, there was practically no state government. 

There is a sharp divide of even the constitutional experts on this issue and hence no consensus on its legality is reached till date. 

Conclusion

The state of Jammu and Kashmir has travelled a long way, evolving from a princely state to now a fully integrated state of India. Each step of this evolution has been challenged, be it the initial awarding of special status to Jammu and Kashmir or the recent removal of this very status. In my opinion, awarding special status to Jammu and Kashmir then was a necessity, considering the situation which was prevailing at that point of time. 

Coming to the point of revocation of this Article, some call it a political vendetta, while others an indispensable need. Whatever be the motive, one thing is clear that a mere revocation of Article 370 and 35A would not mean a full unification of Jammu and Kashmir into the country. This step, no doubt, means a constitutional unification, which is en route to an actual full-fledged unification. Therefore, a lot still needs to be done to achieve this goal. 

References

• https://www.aljazeera.com/news/2019/08/kashmir-special-status-explained-articles-370-35a-190805054643431.html
• https://www.lawctopus.com/academike/constitutional-intergration-jammu-kashmir/
• https://indianexpress.com/article/explained/understanding-articles-370-35a-jammu-kashmir-indian-constitution-5610996/
• https://economictimes.indiatimes.com/news/politics-and-nation/article-370-and-35a-revoked-how-it-would-change-the-face-of-kashmir/articleshow/70531959.cms?from=mdr

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