This article is written by Anmol Singh Khanuja, from NMIMS, Navi Mumbai.

Abstract

The content of Article 370 is no more with us now, Article 370 was an Article inserted in 1950 in the Constitution of India which extended special status to the state of Jammu and Kashmir, this special status has been a debated issue since the time it got incorporated in the Constitution of India, many political parties in India and the state of Jammu and Kashmir have raised the issue of autonomy and many have opposed the creation of Article 370. So before we applaud or show our dissent towards the abrogation of the content of Article 370, an individual should analyze the ideal history of the special status extended to the state of Jammu and Kashmir, from the instrument of accession to the internationalization and from autonomy to the argument of Inequality, this paper aims to discuss many perspectives related to the special status and its actual status before the abrogation of the Article.

Introduction

‘Politics’ a word which is not just a word, but is something which affects and impacts an individual. Aristotle in his book politics contends that ‘man is, by nature, a political animal’. Therefore, when anything impacts or affects an individual, an individual should possess the wisdom of why and how is he/she affected. The politics in Jammu and Kashmir is the politics which has not only affected Jammu and Kashmir’s citizens or an Indian citizen but that politics is known for its evident worldwide coverage. Article 370 has lost its contents after August 5, 2019, this Article was a result of how well politics is played to gain the confidence of a certain number of people. Indians have largely been affected by the existence of this article, so an Individual should at least try to know what the article was, why it was brought and how its contents got abrogated.

Power is a concept which has always remained an apple of the eye of politics. Max Weber defines power as the ability to impose one’s will even when there is opposition for others. Kashmir has always been a land of enchantment which represented sorrow, smile and cruelness by its stretched mountains and beautiful lakes. 

For any person in power, these places play a major role in determining the strength of the kingdom, Akbar in 1586 captured this land by deceiving Yousaf Shah Chak. Then this land was captured by the Afghans without the will of the people, Maharaja Ranjit Singh again captured this land from the Afghans. Maharaja Gulab Singh (the great grandfather of Maharaja Hari Singh who signed the instrument in October 1947) was a Dogra General in Maharaja Ranjit Singh’s Army. After the death of Ranjit Singh, Gulab Singh deceived the successors of Maharaja Ranjit Singh by negotiating with the Brits to sign the treaty of Amritsar in 1846, the Brits then returned Kashmir to Gulab Singh for 75 Lakhs, since then the Dogra dynasty ruled the Jammu and Kashmir province.

Phase I (1930-1947): The idea of India with the idea of Kashmir

Indian National Movement was gaining its popularity after the 1930s, as the concept of Purna Swaraj (complete Independence) was established and propagated. Similarly, Maharaja’s collaboration with the Brits became evident, so the population of Jammu and Kashmir too started questioning the hegemonic rule which led the foundations of the All Jammu and Kashmir Muslim conference in 1932 under the leadership of Maulvi Mohammed Yusuf Shah, Sheikh Abdullah and Chaudhari Ghulam Abbas. With time, Sheikh Abdullah became the leader in the state of Jammu and Kashmir a tall personality with good oratory skills, a man who cogently showed his vision to the state.

Meanwhile, when the Indian National Congress saw this rise in Jammu and Kashmir, they wanted to extend the protest against the Brits. So, the popular person at a national level to influence Kashmir was Jawaharlal Nehru (an Allahabad born Kashmiri Pandit), Nehru from the initial stage wanted Kashmir to be a part of India because India with Kashmir represented India’s belief and commitment towards the principles of secularism.  This thing and the politics of Indian National Congress had a huge impact on the All Jammu and Kashmir Muslim Conference, an impact which was visible when its name got changed from Jammu Kashmir Muslim conference to Jammu Kashmir National Conference in 1939.

As time passed, the cabinet mission plan came up in 1946 where the British Crown agreed to transfer powers from the British government to Indian leadership.  Which then infuriated the Muslim leaders to go for a Muslim Nation i.e.  Pakistan.  Nehru on 10th July 1946 made a speech where he rejected the idea of two dominions thus stating that the congress was neither bound nor committed to the plan.  Later on, in September 1946 interim government was established in which Jawaharlal Nehru as he was the Congress President during that time became the Prime Minister in the Interim Government, Congress till now did not accept the idea of Pakistan but accepted the interim government.

Nehru was not the only man who advocated that Kashmir should go with India, other thinkers like Lord Curzon, also wanted Kashmir’s accession to India, as it was important for the Indian Union for security purposes too.  Sardar Patel, was not ready for Kashmir initially,  as he believed that it was a Muslim dominated state and could easily join the Muslim Dominion,  it was Nehru who changed his mind because Kashmir represented the idea of India which was even bigger than the idea of Pakistan and for security purposes too, Kashmir was important. As the borders of Kashmir were joined with three Nations namely Soviet Union, Afghanistan, China and a nation in making Pakistan. Nehru also had a fear that if Kashmir went with Pakistan, then Kashmir and India could become a Battleground for the two blocks.  Kashmir was so close to the Soviet Union which was evident from a statement made by Kurushev (the leader of the Soviet Union) on his visit to India in 1955- ” you can climb the mountains and shout to us”.  Also, the rejection of the idea of Pakistan by Kashmiris would have given a blow to the two Nation theorists and its followers because at the initial stage there was only an idea of India, an idea of a different Muslim Nation came later on.

Meanwhile “the Quit Kashmir movement” also started in 1946 against the Maharaja.  The Maharaja was indecisive as once stated by Lord Mountbatten.  He was indecisive regarding what to do, as his Throne was now in danger after the 1947 Indian Independence Act where 2 Dominions were made and 565 princely states were given the option to either join any Dominion India or Pakistan or stay independent. India became independent on 15th august 1947, till now many provinces were incorporated and integrated to India because of Sardar Patel and Jawaharlal Nehru, but as I said earlier, Maharaja was indecisive. he wanted to stay independent but the high amount of Muslim population lured Pakistan to launch an attack through Tribal invasion. The tribal invaders were ruthless, they killed, tortured people and raped women in the valley.

The invasion compelled the maharaja to ask for help from India which was also an opportunity exercised by the maharaja to compel the Indian government for grant of autonomy to Jammu and Kashmir and then the instrument of accession was signed on 27th October 1947, where the union government had absolute powers on three things, namely; 1. defence; 2. communications; and 3. External affairs. rest all the things were governed by state government subject to the concurrent list.

Phase II (1947-53): Grant of autonomy

At the time of accession, the Indian government made it clear that this accession was a temporary reform and that the fate of Jammu and Kashmir will be decided by its people because India followed democracy and that Kashmiri voices have not been heard for many years. So, a plebiscite would be conducted once the situation climbs back to normal. Meanwhile, there were a lot of difficulties which were prevalent after partition on drawing materials and essential supplies to the state of Jammu and Kashmir because before partition the commodities were supplied easily through three rivers, but after partition, those ports went to Pakistan.  Hence, It was a tough job to supply commodities to Kashmir when it needed the most. 

 The idea of a plebiscite was not a new idea it was linked with the annexation of Junagarh, Where the king of Junagadh was a Muslim and the majority population living in his kingdom were Hindus. So, India Union demanded a plebiscite, where 99% of the population agreed to go with India.

Between 25th October and 17th November 1947, around 700 soldiers were lifted from New Delhi to Kashmir. Meanwhile, Lord Mountbatten advised Nehru to go to the UN because this would have done a loss to the reputation of Pakistan at the international stage.  Also, Prime Minister Nehru was confident about his relations with Sheikh and that the will of the people of Kashmir was with India.  So, to avoid further conflict and loss of lives, India appealed to the UN under article 35 of the UN charter. Nehru was a believer in international institutions but this appeal also exposed him to a lot of Criticism that Nehru should have proceeded to the UN under chapter 7 and not Chapter 6.

At one stage it was established that India would withdraw from UN Commission but later on Prime Minister Nehru made a speech stating that the council in India cannot guarantee better cooperation for the commission on Kashmir and then in summers of 1948 came a resolution on the plebiscite and  An affirmation to Pakistan’s involvement over the tribal invasion in Kashmir.

Also, it is important to know that the UN failed to comply with its resolutions which allowed Pakistan to continue its malpractices in the western provinces of Kashmir. Furthermore, the inclination of the US towards Pakistan was making tasks for India difficult. India tried to keep good relations with the US, but the US was busy implementing the Marshall plan in Europe and that India’s stand was a non-aligned stand, this made the US uninterested. These all things compelled India to go towards the Soviet Union, also the Soviets supported India’s claim over Kashmir. The UN’s involvement over Kashmir was prevalent till 1952 or 53, after that the international lobbying by India has kept the matter silent.

Meanwhile, in the Constituent Assembly of India, DR B R Ambedkar (the chairperson of the drafting committee) refused to draft Article 370, so the task was given to N. Gopalaswamy Ayyangar. Ambedkar’s reason was that Article 370 portrayed biasedness and inequality. Sardar Patel too criticised the Article initially but understood the gravity of the Article later. 

In a debate in constituent assembly which was drafting the Constitution of India, N. Gopalaswamy Ayyangar said and I quote – Till a constituent assembly comes into being, only an interim arrangement is possible and not an arrangement that can at once be brought into line with the arrangement which at once be brought into line with the arrangement that exists in the case of other States….it is an inevitable conclusion that, at the present moment, we could establish only an interim system. Article 306A (an initial article which resulted in article 370) is an attempt to establish such a system, he further stated that – The effect of this Article is that the Jammu and Kashmir State which is now a part of India will continue to be a part of India, will be a unit of the future Federal Republic of India and the Union Legislature will get jurisdiction to enact laws on matters specified either in the Instrument of Accession or by later addition with the concurrence of the Government of the State. And steps have to be taken for the purpose of convening a constituent Assembly in due course which will go into the matters I have already referred to. When it has come to a decision on the different matters it will make a recommendation to the President who will either abrogate article 306A or direct that it shall apply with such modifications and exceptions as the constituent assembly may recommend. That, sir, is briefly a description of the effect of this article, and I hope the House will carry it.

As Pandit Nehru was abroad so Sardar Patel refuted long opposition of Maulana Hasrat Mohani and said that the “History of ground realities of Jammu and Kashmir was such as it necessitated a special status and so by this special status was accepted by the Constituent Assembly on October 17, 1949, and was brought to force by presidential order of 1950 on 26th day of January 1950.

Furthermore, in October 1948, 250 delegates representing Hindu, Muslim and Sikh population unanimously confirmed Kashmir’s Accession to India. This was again reconfirmed from speeches of Sheikh Abdullah and Prime Minister of India Jawaharlal Nehru in the All Jammu Kashmir conference held at Srinagar on September 24th, 1949.

After 15th October 1947, the interim government was established where Mehr Chand Mahajan presided as Prime Minister of the state of Jammu and Kashmir under Maharaja’s cabinet. In 1949, Hari Singh made a proclamation transferring his powers to his son Yuvraj Karan Singh and made him regent of the state of Jammu and Kashmir. Karan Singh remained as regent till the post of Sadr-e-Riyasat was abolished in 1965 and further remained governor of the state till 1967.

Sheikh Abdullah replaced Mehr Chand in 1948 and remained as prime minister of the state of Jammu and Kashmir till the 1st assembly elections, it was the 1st time when the JKNC (Jammu Kashmir National Conference) won 75 seats in constituent assembly election 1951 and again Sheikh was made the Prime Minister, but this time he didn’t last long. His Anti-India approach and changing of sides like his involvement in talks of Independent Kashmir placed him under detention from 1953 to 1975. Also, a point to be noted here is that the constituent assembly consisted of 25 members from Pakistan occupied Kashmir (POK), the constituent assembly was in-charge of drafting the Constitution of Jammu and Kashmir.

Before his arrestment in 1953, Sheikh Abdullah reached a consensus with the union government came to be known as Delhi agreement of 1952 which gave certain rights to Jammu and Kashmir of having its flag but with no conflict with the Indian flag, the post of Sadr-e-riyasat with the consultation of state government, domicile rights, Supreme Court’s appellate jurisdiction and that president can impose only Article 352 of the Indian Constitution (Emergency provision).

Phase 3 (1953-1975): Erosion of autonomy

In my view, the arrestment of Sheikh Abdullah was due to clash between Abdullah’s demand for autonomy, and Nehru’s greater integration vision for Kashmir, the arrestment of Sheikh Abdullah made Bakshi Ghulam Muhammed the prime minister of Jammu & Kashmir, he remained as the Prime Minister of Jammu and Kashmir till October 1963, during his regime, the National conference became a branch of the Indian National Congress because some major Constitutional orders were passed during his regime. 

Meanwhile, these constitutional orders tampered the state’s Autonomy status, there could’ve been many factors compelling the Indian Government to take these steps like the emergence of the cold war, so controlling the Kashmir region was important because of Pakistan and China and there can be more reasons.

Among these Constitutional orders, the most important was the Constitutional order (application to Jammu and Kashmir) 1954, which was for the benefit and effective enforcement of the Delhi Agreement 1952. Between 1954 and the mid-1970s, around 28 Constitutional orders were passed which incorporated 262 Union laws to the state of Jammu and Kashmir.

Constitutional orders like, in 1958 the All India services was established, state’s financial autonomy was taken away, in 1959 State’s high court of appeal was placed under Supreme Court of India, in 1961 National Election Commission was empowered to hold elections, also the post of Sadr-e-Riyasat was demolished and Governor was established in the State of Jammu and Kashmir.

India changed its position openly on plebiscite in 1957 where Home Minister Govind Ballabh Panth, during his visit to Srinagar declared that Kashmir was an Integral Part of India and that there can be no question on Plebiscite. While in 1953, Government of India and the Government of Pakistan announced in a joint communique that a plebiscite would take place and whatsoever the result may be, it shall be binding on both the nations. The position in 1957 changed because in 1954 Pakistan and the United States signed a mutual defence assistance agreement leading to which Prime Minister Nehru immediately withdrew the plebiscite offer to Pakistan, Nehru stated the cause that such kind of cold war alignments affects the Kashmir issue and from this point onwards India resisted efforts for a plebiscite.

After the Indo-Pak 1971 War, which left the creation of Bangladesh, Pakistan officially recognized Bangladesh in the Simla Agreement of 1972 and amongst the many terms, there was a term to which India and Pakistan agreed that Kashmir dispute was a bilateral issue and that no 3rd party would intervene with immediate effect, whether it was the UN or any other nation, no one would intervene.

Indira Gandhi wanted to follow a new approach and so this led to the Indira-Sheikh accord in 1975. Sheikh Abdullah dropped his demand for autonomy because Indira Gandhi made things clear that “the clock couldn’t be put back in this manner”. Thus, the Sheikh was released on certain terms and conditions and Sheikh then became Chief Minister of the state. Due to certain conflicts between Indian National Congress and the National Congress, the coalition ended and governor’s rule was imposed for 105 days in 1977.

Phase 4 (1977-1983): Fairest election years

In July 1977, Sheikh Abdullah’s party took a massive lead, marginalising Indian National Congress and other parties. Sheikh Abdullah remained as the Chief Minister of the state of Jammu and Kashmir for 5 years, then his son Farookh was replaced in place of Sheikh because of the death of Sheikh Abdullah. The arrival of Farookh, brought a little increase in communal politics as the Jammu and Kashmir liberation front and Muslim United Front were gaining momentum but anyhow In June 1983, Farookh led National Conference swept assembly elections with a comfortable majority.

Phase 5 (1983-1987): Rise in Insurgency

After winning a good number of seats in Jammu and Kashmir, Farookh started raising the issue of autonomy tampered between (1953-1975) and demanded the return of autonomy to the state of Jammu and Kashmir, these things led to the dismissal of his government because Farookh’s brother-in-law Ghulam Shah split himself and formed a government by allying with the Indian National Congress. Ghulam Shah was famous for being a puppet of the Indian Government, he was known as the ‘curfew Chief Minister’.

Meanwhile, Farookh became a leader who vehemently opposed the Union government, but in 1986 Farookh again became the Chief Minister of Jammu and Kashmir allying with the Indian National Congress (INC), this thing conveyed a bad message to the people of Jammu and Kashmir. Pakistan also started sponsoring insurgency and militant training to the youth of Kashmir, which was evident from operation Tupac launched under the leadership of President Zia-Ul-Haq of Pakistan, but this didn’t last long due to the death of the President.

The unholy alliance of National Conference-Indian National Congress became untrustworthy in Jammu and Kashmir because Farookh failed in providing education and economic stability in the state. Though the National Conference-Indian National Congress (32+6) again formed an alliance in 1987 but this time communal politics got increased as the MUF (Muslim united front) also had an increase in the number of seats, by which they started the demand of representation of backward Muslims, these things created disturbed harmony.

Phase 6 (1987-1996): Insurgency, militancy and political instability

After the 1987 assembly elections, though National conference and Indian National Congress formed an alliance and remained in power, there were many parties like the Muslim United Front and Jammu and Kashmir liberation front (JKLF) which propagated communal hatred, in the same way, the Rashtriya Swayam Sangh and Bhartiya Janta Party, started raising slogans like Ek jhanda, Ek samvidhan (One flag, One Constitution) and started influencing Hindus and Sikhs of Jammu and Ladakh region because the government failed to provide necessary opportunities and security to the Locals, this lead to increase in inequality within the valley.

One the other hand the cold war came to an end leaving the Afghan rebels no work, Kashmir shared borders with Pakistan and Afghanistan, Now Pakistan started sponsoring the youth to take training from the Afghan Rebels and to some extent Pakistan helped these rebels to create militancy in the valley, these all things led to the exodus of Kashmiri Pandits in the region. Also, the spread of Wahabism in the valley charged the Indian Kashmiri youth to go for Militancy. 

Following this event, the Indian Government increased the number of troops of the Indian Army in Jammu and Kashmir, especially the Kashmir valley, the Indian Government also imposed AFSPA (Armed Forces Special Powers Act) which gave enormous powers to the military. The instability was evident when parties in Jammu and Kashmir refused to participate in parliamentary elections of 1989, National Conference was an exception so it won all the three seats.

After 1989 the demonstrations of Azaadi (freedom) started, in 1990 the legislative assembly got dissolved leading to Presidential rule till 1996. During this period the PAK (Pakistan)-Taliban sponsored militancy spread to a large extent, the Indian Army also gave deterrent responses which led to many human right violation cases (reports by amnesty and other organisations), these all identity politics and global intervention that led to AFSPA hampered state’s tourism and state’s economy but tensions de-escalated when Prime Minister Narasimha Rao in 1995 made a statement in parliament that Article 370 will not be abrogated and that Jammu and Kashmir is an integral part of India and that he wanted President’s rule to end.

Phase 7 (1996-2008): Air of hope

The Kashmiris were also badly afflicted with the insurgency and human right violations in the Jammu and Kashmir, so they wanted and demanded better conditions for themselves which was evident from their participation in assembly elections and parliamentary elections of 1996, National conference allied with the BJP ( Bhartiya Janta Party) when Atal Bihari came to power as he wanted to restore credibility in the valley, this was evident from the three words Jamhooriyat, Insaniyat, Kashmiriyat. But again, due to the Kargil War 1999, the relations between India and Pakistan and the Lahore Declaration lost impetus.

The Indian National Congress meanwhile was gaining momentum in Jammu and Kashmir because it emerged as a party which was aloof from communal politics, also a new party named the People’s Democratic Party (PDP) gained momentum after 1999, the rise of both the parties was evident from the win of PDP-INC in legislative assembly elections 2002.

After 2004, Indo-Pak relations stabilised as Indian Prime Minister Manmohan Singh met Pakistan’s President General Parvez Musharraf. Though there existed clashes between armed forces and militants, that didn’t take place on a large scale. Also, the GDP (Gross domestic product) of Jammu and Kashmir took a significant growth from 2004 to 2011, but things after 2008 changed.

Phase 8 (2008- 2018): Resurgence

In 2008 happened the ‘Amarnath Land Dispute’, where the government of India agreed with the Government of Jammu and Kashmir (Ghulam Nabi Azad was the CM) to transfer 99 acres of land to Amarnath Temple, the PDP (people’s democratic party) didn’t agree to this and broke the coalition leading to coming down of the government in Jammu and Kashmir, this again led to the regeneration of communal politics in Jammu and  Kashmir, also the calls for abrogation of the article started taking place across the nation, youth in Jammu and Kashmir again started to resort towards militancy, corruption increased in the valley and financial irregularities were also observed.

When Narendra Modi came to power in 2014, he wanted to develop relations with Pakistan which was evident when he called Pakistan’s Prime Minister to his oath ceremony and his surprise visit to Pakistan. But terrorist attacks and killing of Army men in the valley and the situation after 2016 i.e. killing of Burhan Wani (young militant) escalated tensions in the valley to a large extent, due to which the Governor’s rule was imposed after November 2018. After the Pulwama Attack in February 2019, calls for abrogation increased vehemently across the nation, massive win of BJP in 2019 parliamentary elections paved way for the fulfilment of promises.

Some scholars analyse that the abrogation of Article 370 is linked with the Americans leaving Afghanistan leading to recognition of Taliban in Afghanistan, the Modi government predicted that America would be withdrawing from Afghanistan completely which it did in march 2020 by signing a pact with Taliban. Trump’s offering to mediate alongside Pakistan in 2019 made things clear for the Indian Government to change the script of Jammu and Kashmir.

How the government abrogated Article 370

By the Constitution (Application to Jammu and Kashmir) order 2019 (C.O 272), the government replaced the word “constituent assembly” to Legislative assembly in clause 3 of Article 370. Clause 3 states that the President can cease the operation of Article 370, provided that recommendation of the constituent assembly is necessary. The Constituent Assembly of Jammu and Kashmir was dissolved in 1956 without recommending anything. The government added clause 4 in Article 367 of the Constitution of India which meant that the recommendation made by the governor to the President shall be construed as a recommendation of the ministers and legislative assembly. Thus, by the virtue of clause 3 of Article 370, the President of India ceased the operation of Article 370, treating the recommendation by the governor as a recommendation by the legislative assembly.

Role of Judiciary

The government may contend the issue of Abrogation as a matter of public policy because in cases like R. C. Cooper vs Union of India (1970). The Apex court of India has decided that the court does have the power to strike down a law on the ground of authority, but the court will not sit in appeal over a public policy of the parliament in enacting a law. Again, in Premium Granite vs State of T. N. (1994) the court clarified that it cannot entertain a challenge to the wisdom or efficacy of the law or policy. (Kumar 2019)

But it would be difficult for the Indian Government because the Supreme court in cases like Rehman Shagoo vs State of Jammu and Kashmir (1960) and Sampat Prakash vs the State of Jammu and Kashmir (1968) has clarified and upheld the legal status of Jammu and Kashmir. Moreover, the Supreme Court in 2018 has said that the Article 370 has acquired permanent status because of its existence since many years, also the Constituent Assembly of the State got dissolved in 1956 without making any recommendations, making its abrogation impossible. Now it is up to the Judiciary to decide the fate of Constitutional Orders passed on August 5, 2019.

Conclusion

I have observed that Jammu and Kashmir’s autonomy before 1952 was not a new concept in the world as the US followed this kind of federal concept and the Chinese too followed this concept in terms of Hong Kong. 

I have also observed that the governments which had or have a good majority in parliament tend to use the security theory concept i.e. storming the military to the state of Jammu and Kashmir, keeping things fully under Union’s control. Meanwhile, the governments with flexible numbers in Parliament have resorted to peace theory concept, where these governments have provided financial stability to the state as well as better interlocutory approach, which has led to de-escalation in militancy and insurgency in the valley,

I have observed that investment which took place in the form of bridges, etc in the valley was mainly done to benefit military movement in the Valley.

I have observed that Article 370 was something which had to go one day because it was a strategy which was used to gain the confidence of the Muslim dominated province to accede to India because that accession proved to be an outcome which rejected the two-nation theory and followed India’s principles and Kashmir’s accession to India was important strategically i.e. for security purposes. On November 27, 1963, Prime Minister Nehru made a speech in Parliament and I quote- “There is no doubt that Kashmir is fully integrated. We feel that this process of gradual erosion of article 370 is going on. We should allow it to go on. We don’t want to take the initiative in this matter and completely put an end to Article 370.”

I have also observed that the amendment to Article 370 by the government might do a bit harm to India’s international reputation, but this has not changed the position of India, and so the government should be careful while inviting any kind of delegation to visit the union territory of Jammu and Kashmir, internet lockdowns, etc. As these things would gain the attention of the International media which will then refute our adamant domestic argument towards Jammu and Kashmir.

I, thus conclude by providing a view that a much more humane approach should be followed towards the people of Jammu and Kashmir because if we are following deterrent methods to keep things in control then I shall recall the quote “An Eye for an Eye, will make the world blind”.

Endnotes

• The speech of Gopalaswamy Ayyangar has been taken from Constituent Assembly of India Debates (Proceedings) – Volume X, Monday, the 17th October 1949 on Article 306A retrieved from Loksabhaph.nic.in. 

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Bibliography

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