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Jammu And Kashmir: As A State And As A Union Territory

After the British withdrawal from India in 1947, the princely states were given the choice of either joining India or Pakistan or to remain independent. Sardar Vallabhai Patel became the first home minister and deputy prime minister of independent India. Congress entrusted Patel for the task of integrating the princely states. A new state department was set up with Sardar Vallabhbhai Patel as its head and V. P. Menon as the secretary. He integrated around 562 princely states under the Indian dominion. He was very successful in completing the task barring Kashmir, Junagadh, Hyderabad, Travancore, and Bhopal.

But Kashmir has always been the subject of dispute between India and Pakistan. Pakistan is still fighting to gain rights over this state due to its location. Kashmir is located in the northernmost part of the Indian subcontinent. After independence, Maharaja Hari Singh, the ruler of the state decided to remain neutral because he was a Hindu, however, the majority of his subjects were Muslims.

This paper will explain how Kashmir later became a part of India, how Article 370 and 35A were included in the Indian constitution, and why it has been recently revoked.

Indo-Pakistan War

The northwest frontier province supported by Pakistan attacked Kashmir and there was an uprising against Hari Singh which was the base for the Indo-Pakistan war. The first war between India and Pakistan broke out in the year 1947 over the state of Kashmir. It is also called the Kashmir war. On October 22, 1947, about 5000 tribal Pathans led by Pakistan army regulars attacked the state's capital Srinagar, from where Hari Singh ruled and occupied a large part of the state. The maharaja sought the support of the Indian army and made a desperate appeal to the Indian government to come for rescue.

On October 25, V.P.Menon, a civil servant flew to Srinagar to get Hari Singh's approval for Kashmir's accession to India.

On October 26, the intruders massacred about 11,000 of 14,000 residents of Baramullah and destroyed the Mohra power station that supplied electricity to Srinagar. This incident threatened the Maharaja.

The instrument of accession was signed

On 27th October, India's first Sikh battalion started its operation against Pakistan. The raiders were just 5 kilometers from the capital Srinagar. India conducted a massive airlift of army personnel to Srinagar the next day and captured Baramullah and major parts of Kashmir within two weeks.

Pakistan claimed that the IOA was invalid and the sign so obtained was fraudulent. They continued fighting for the territory and also captured some of the cities and chucked out Hindus. India's 161st Infantry Brigade was deployed. In early November 1947, the brigades used armored cars to counterattack the forces and were successful. Then they fled to the airfield to secure and return the power to the Srinagar.

Though the Indian army was successful in the war initially, they suffered a setback in December because of logistical problems. The soldiers were insufficiently prepared for fighting in the mountainous region of Kashmir, the high altitude and cold. Pakistan took advantage of this situation and pushed back the soldiers from the border.

In the spring of 1948 Indian army mounted another attack to take back the place that it had lost. Pakistan also attacked back with all powers. The war that started in the spring lasted till December and the Pakistani forces attacked both from the north and south sides. The intensity of the war only increased and an end to this couldn't be predicted. This forced the Indian leaders to seek the help of an external resource, they approached the United Nations.

The UN came up with a lot of resolutions to which either of the countries rejected or demanded few changes. India and Pakistan finally voluntarily agreed to a cease-fire in Kashmir from the midnight of December 31, 1948, this came into effect from January 1, 1949. When the ceasefire was established India had control of Jammu, Ladakh and Kashmir valley; Pakistan had control of Azad Kashmir and Gilgit-Baltistan.

The war resumed again in early 1965 along the borders of the two nations, Pakistan believing the residents of the state wanted to be out of Indian control. Pakistan launched the operation GIBRALTAR in august 1965 and began to invade Jammu and Kashmir. The war only lasted for 17 days but the number of deaths was extremely high. The war reached a stalemate and India approached the UN again to reprise its role in the first India-Pakistan war and bring a solution to the conflict. The United Nations on September 20 passed resolution 211 calling for an end to this war and making negotiations for the Kashmir problem.

The United States and the United Kingdom helped in implementing the resolution by cutting off arms supplies to both the belligerents. In January 1966, India and Pakistan signed the Tashkent declaration. It is a peace treaty signed in the Soviet city of Tashkent by the Indian Prime Minister, Lal Bahadur Shastri, and the President of Pakistan, Ayub Khan in which both the countries agree to withdraw their troops, repatriate prisoners of war, return the conquered territories and have a diplomatic relationship.

Instrument Of Accession (IoA)

The Instrument of Accession was a legal document first introduced by the Government of India Act 1935 and used in 1947 to enable each of the rulers of the princely states under British paramountcy to join one of the new dominions of India or Pakistan created by the Partition of British India.

This was signed between Maharaja Hari Singh and Jawaharlal Nehru and was accepted by Lord Mountbatten, the governor-general of India on Oct 26, 1947. IOA declares that the state accedes to the dominion of India. Under this Instrument Of Accession, Jammu and Kashmir surrendered only three subjects: Defence, External Affairs, and Communications to India. The state earned an assurance from India that the people of Jammu and Kashmir through their constituent assembly would draft their constitution and the constitution of India could only provide an interim arrangement regarding the state.

However, to retain its special status it added two important clauses.
Clause 5: Singh explicitly mentions that the terms of the IOA cannot be varied by any amendment of the Government of India Act, 1935, or the Indian Independence Act, 1947, unless such amendment is accepted by me by an Instrument supplementary to this Instrument.

Clause 7: Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution.

The most important point of the instrument of accession was that its ruler and formal head Singh decided and declared that the state of Jammu and Kashmir accede to the dominion of India with a clear result that from here on ‘ governor-general of India, the dominion legislature, the federal court and any other dominion authority established for the dominion will be legally authorized to carry out any function in respect to the state of Jammu and Kashmir, as vested in them by or under the government of India Act,1935

In March 1948, the maharaja appointed an interim government in the state, making sheikh Abdullah the prime minister. In July 1949, Sheikh Abdullah along with three other colleagues joined the Indian constituent assembly and negotiated about granting special status to J&K, as a consequence of which article 370 and article 35(a) were incorporated.

Article 370

Article 370 was the basis for Jammu and Kashmir to join the Indian union. This article was drafted by Prime Minister Sheikh Abdullah. Since B.R.Ambedkar refused to accept this drafting, Maharaja Hari Singh seeks the help of N.Gopalaswami Ayyangar who was one of the members in the drafting committee of the constitution. It was included in the constitution on 17th October 1949, under Part XXI of the Constitution of India, which deals with Temporary, Transitional and Special provisions, the state of Jammu & Kashmir has been accorded special status. Abdullah wanted this article to be a permanent one but the center seemed it to be unreasonable and declared article 370 to be a temporary provision.

According to this article, the state of Jammu and Kashmir was exempted from the Indian constitution and had a separate constitution. They had the right to design their flag. The people in Jammu and Kashmir need not respect National symbols of India if they insult also they don't fall under committing the crime. The Indian parliament cannot increase or reduce the borders of the state. In Jammu and Kashmir, the directive principle of state policy and fundamental duties are not applicable.

The state has separate laws for controlling issues related to ownership of property, fundamental rights, and citizenship. The parliament needs the state government's approval for bringing in the effect of any law in the state of Jammu and Kashmir. The domain of defence, foreign affairs, finance, and communications do not fall under the above-said power.

Article 35A of the Indian Constitution, which stemmed out of Article 370, gave powers to the Jammu and Kashmir Assembly to define permanent residents of the state, their special rights, and privileges.

Article 35(A):

Article 35(A) was added to the constitution by the order passed by the then President Rajendra Prasad on the advice of Nehru who led the union government. This order was issued in 1954 under article 370 (1) (d) after the Delhi Agreement 1952 which was signed between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah.

While article 35(A) has remained unchanged, some aspects of article 370 have been diluted over the decades. Here article 35(A) was inserted unconstitutionally because article 368(1) states that the constitution empowers only the parliament to amend the constitution but parliament needs the approval of Jammu and Kashmir government for applying laws in the state. So it lacks certain parliamentary sanctions.

Article 35(A) confers certain rights and privileges on the residents of Jammu and Kashmir.

A permanent resident of the state as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years and has lawfully acquired immovable property in the state. The permanent resident bars certain rights for women who marry a person from outside the state. It also extends to such women's children. In the case of Charu wali khanna vs. Union of India, the high court of Jammu and Kashmir held that women who married non-residents will not lose their rights, though children of such women will not enjoy such succession right.

Under article 35A no outsider can own property in Jammu and Kashmir or get a job. The Indian refugees who migrated to Jammu and Kashmir during partition are still not treated as state subjects but Pakistan refugees were given citizenship under Jammu and Kashmir constitution. They also refused to give scholarships for meritorious students. It adversely affected the economic development of the state. These create conflicts with fundamental rights under articles 14, 19, and 21 of the constitution.

How And Why Was Article 370 Abbrogated

Article 370 has created an emotional and psychological barrier of separatism between the people of Kashmir and the rest of India. Even the businessmen, bureaucracy, judiciary and politicians have misused this article for their despicable purposes. The poor and down-trodden people have been exploited. The rich have used article 370 to ensure that no financial legislation is passed because if that happens these people would become accountable for all the loots.

As the connection with any outsider is denied, the influential people of the state make the rule, decide the price, and determine the buyer. Even the basic rights of the citizens are denied and democratic legislations do not get applied. Article 370 has also been used to deny the fair share of the economic pie to Ladakh and Jammu region. But most importantly this special status has been granted to Kashmir at the cost of India's safety. Terrorist groups and terrorism have seen a great boom in the past 70 years. It was included in the constitution to develop the state but the misuse of this special status has made the state underdeveloped. Therefore article 370 and article 35(a) were abrogated on 5th August 2019.

An interesting fact here is that the government has used the very same article 370 to make article 370 inoperative. Here is how,
Clause 3 of the article gives the president the authority to declare the special status granted to Jammu and Kashmir inoperative anytime.
Article 370(3) reads:
Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify.

Using this provision a presidential order was passed to make article 370 inoperative. It was guessed that the government would scrap the article but the idea was brushed off saying that the Supreme Court is seized with multiple cases relating to article 370 and 35(a).

The government used 370(3) to make this article inoperative instead of scrapping it off because scrapping of this article requires a constitutional amendment under article 368. But by invoking 370(3) the government has bypassed this amendment route.

Union home minister Amit Shah clearly stated that the government was not scrapping or abrogating the article 370 because article 370 stays very much as part of the Constitution and cannot be repealed or abrogated without a constitutional amendment as mentioned above.

Political View On Revocation Of Article 370

Prime Minister Narendra Modi and the Hindu nationalist Bharatiya Janata Party had long opposed Article 370 and revoking it was in the party's 2019 election manifesto. They argued it needed to be scrapped to integrate Kashmir and put it on the same footing as the rest of India. After returning to power with a massive mandate in the April-May 2019 general elections, the government didn't waste time making 370 inoperative.

Accepting that the decision has not been universally praised, the Prime Minister says it is very natural in a democracy that some people are in favor of this decision and some have differences over it. He says he respects their differences as well as their objections. The central government is also responding to the debate on it as this is our democratic responsibility, he says. Urging the critics to keep ‘ national interest ' paramount, he says that everyone must help the government give Jammu and Kashmir and Ladakh a new direction.

Keeping in view the prevailing internal security situation, fuelled by cross border terrorism in the existing state of Jammu and Kashmir, a separate UT for Jammu and Kashmir is necessary and as for Ladakh, says there has been a long pending demand of people of Ladakh to give them the status of UT to realize their aspirations, said home minister Amit shah in the Rajya sabha.

Jammu And Kashmir Reorganisation Bill, 2019

Home minister, Amit shah, introduced this bill in Rajya Sabha on August 5 2019, under the leadership of Prime Minister Narendra Modi. On the same date, it was passed in Rajya sabha and it was passed in Lok Sabha on August 6. The president gave his assent on August 9, 2019. The bill divides Jammu and Kashmir into two union territories i.e. U.T. of Ladakh and U.T. of Jammu and Kashmir. The union territories will come into effect on October 31, 2019.

The bill had a greater effect in the geography and the administration of Jammu and Kashmir they were,
The Reorganisation of Jammu and Kashmir: Jammu and Kashmir are divided into two union territories by this bill i.e. the Union territory of Jammu and Kashmir with a legislature and the Union territory of Ladakh without legislature. Kargil and Leh districts are included in the Union territory of Ladakh and the remaining territories of the existing state of Jammu and Kashmir will be comprised in the Union territory of Jammu and Kashmir.

The power of Governor: The Union territory of Jammu and Kashmir and the Union territory of Ladakh will be administered by the President through an administrator appointed by him known as the Lieutenant Governor.

Legislative Assembly of Jammu and Kashmir: 107 seats were preceded to Jammu and Kashmir legislative assembly. Since the Kashmir was illegally occupied by Pakistan, the 24 seats there are remaining vacant. In those 107 seats, some seats will be reserved for SC and ST in proportion to their population in the Union territory of Jammu and Kashmir.

If the women are not represented adequately the Lieutenant Governor may nominate two members to the Legislative Assembly to give representation to women. The legislative assemble has a tenure of five years. The Legislative Assembly may make laws for any part of Jammu and Kashmir and the parliament will have the power to make laws in Jammu and Kashmir related to any matters.

Council of ministers:

The size of the council of ministers will not be more than 10% of the total number of members in the assembly and they will aide and advice the Lieutenant Governor. The decisions taken by the council will be communicated by the Chief Minister to the Lieutenant Governor.

High Courts:
The High Court of Jammu and Kashmir will be the common High Court for the Union territory of Jammu and Kashmir and the union territory of Ladakh.

Legislative council: The Legislative council of the state Jammu and Kashmir will be abolished. Bills pending in the Council will lapse due to the dissolution.

Advisory committees: The advisory committee will be appointed by the central government. It deals with various issues including distribution of assets and liabilities of corporations, issues related to the generation and supply of electricity and water, and issues related to the Jammu and Kashmir State Financial Corporation.

The extent of laws: The acts like Aadhaar Act, 2016, the Indian Penal Code, 1860, and the Right to Education Act, 2009 and the other 106 central laws of the schedule lists that will be made applicable to Union Territories of Jammu and Kashmir and Ladakh on a date notified by the central government.

Kashmir On The 5th Day Of August, 2019

The central government put an end to the special status of Jammu and Kashmir and split the state into two union territories that day. First thousands of Indian troops were deployed. Kashmir seemed very quiet that day.
According to a few people who spoke to their relatives in the state government (through satellite phones), the most street was deserted. Soldiers were everywhere. Amarnath Yatra was canceled by sending securities forces to Jammu and Kashmir and the tourists were ordered to leave. Schools and colleges were shut. Communication lines (telephone and internet) were snapped. Mehbooba Mufti and Omar Abdullah were put under house arrest on August 4. Many top-level politicians were also arrested and section 144 of CrPc was imposed.

On 9th August, north Kashmir got mobile connectivity but south Kashmir remained cut off. Their only source of information was television news. In midnights, Petrol pumps were opened only for a couple of hours. Public transports were kept off roads. Schools started functioning from August 10. On the 64th day from the date of revocation, there were no more restrictions except in vulnerable areas. Internet services were still snapped and main markets were opened only till 11 am.

This unprecedented security deployment, detention of political leaders in their homes and snapping of communication links says that the government has anticipated mass protests in the valley because this is a decision taken without consultation or negotiation with any of the state's member or authority at a time when the state did not have a popularly elected government.

Benefits To The State That Has Now Become A Union Territory

The Union territory Jammu and Kashmir have more benefits from introducing The Jammu And Kashmir Reorganisation Bill, 2019. Article 370 and 35(A) made the state of Jammu and Kashmir isolated and abrogation of this article helps for the development. The abrogation lifts the restrictions on the land, which will lead to growth and employment.

Land rates that had remained stagnant in the state will now increase like in other parts of the country, thus benefiting landowners. The tourism potential can be fully used which increases investment and development.

There has been a great increase in the educational policy, infrastructure development in hospitals in the rest of the country but not in the state of Jammu and Kashmir. It does not have any decent university and students are forced to go to other parts of India.

There are no hospitals with adequate facilities and patients have to travel to Delhi and Mumbai for treatment. The government can build financial infrastructure in the form of a transparent, inclusive banking system, an online friendly tax system, and easier access to capital for legitimate entrepreneurs by abrogating article 370. Abrogation of article 370 and article 35(a) can provide for progressive egalitarian laws and provisions related to the Right to Education; accessing public information through the Right to Information; reservations in education and employment and other facilities for traditionally deprived communities.

Conclusion
Though there are many advantages and some disadvantages, both Kashmir and India enjoy the benefit of abrogating the articles. Now Kashmir can join the mainstream of the nation by the introduction of The Jammu And Kashmir Reorganisation Bill, 2019. The sudden restriction on public movement and deployment of thousands of soldiers' disturbed normal life in the Kashmir valley, it is important to understand that these are temporary arrangements to avoid unrest and maintain peace.

Making article 370 and 35(A) ineffective and bringing the state into the Indian union by making it a union territory is the central government's first step towards developing Kashmir, with the cooperation of Kashmir residents normalcy can be restored and it may increase the standard of livelihood of its citizens.

References:
1. Erin Blakemore, The Kashmir conflict: How did it start?, National Geographic, March 2, 2019, https://www.nationalgeographic.com/culture/2019/03/kashmir-conflict-how-did-it-start/.
2. Kiss &Peter, The First Indo-Pakistani War, 1947-48, Mar 18,2013.
3. The India-Pakistan War of 1965, Office of the Historian, https://history.state.gov/milestones/1961-1968/india-pakistan-war.
4. Dr. H.O.Agarwal, Kashmir Problem- it's legal aspects, (2010).
5. Instrument of accession of Jammu and Kashmir, Dominion of India, (1947).
6. Instrument of accession of Jammu and Kashmir, Dominion of India, (1947).
7. What is Article 370, Business Standard, https://www.business-standard.com/about/what-is-article-370.
8. Justice Adarsh sein anand, The Constitution of Jammu and Kashmir, 1994.
9. Sheikh Mohammad Abdullah's Statement to the Constituent Assembly on Delhi Agreement 11th August, 1952, Kashmir Historical Documents, http://ikashmir.net/historicaldocuments/130.html.
10. Charu Walli Khanna v. Union of India, WP (C) 722/2014 SCC.
11. Colonel Tej K Tikoo, Kashmir: Its Aborigines and Their Exodus, (2012).
12. Art. 370(3), The Constitution Of India.
13. Article 370 has not been scrapped. What does Modi govt move on Kashmir mean? , India today, Aug 5, 2019.
14. Highlights from prime minister Narendra Modi's independence day speech.
15. Home minister Amit Shah's speech in Rajya Sabha.
16. Jammu and Kashmir Reorganisation Bill ,2019, Gazette of India, (2019).
17. Jammu and Kashmir bifurcation updates, The Hindu, August 05, 2019.
18. More jobs, growth in tourism: J&K govt on benefits of abrogation of Art 370, India Today, September 6, 2019.

Written By:

  1. Tejaswini.R
  2. Rathnasundara Devi.S
  3. Manusri S.R.N

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