In the vexed saga of Jammu and Kashmir over the last seven decades, the sequence of events that conjoined it to the Indian Union is very important. The conjoining in particular, like that of Siamese twins, is the operative thing.
This, despite the wild statements and anti-national efforts 0f Valley politicians in the storied National Conference (NC) and People’s Democratic Party (PDP), as well as other, overtly separatist, but now proscribed organisations.
The first document signed was the Instrument of Accession between Maharaja Hari Singh and Lord Louis Mountbatten, then Governor General of India, just after independence, on the 25 or 26 October 1947.
Jammu and Kashmir: Messed up since inception
By this Instrument of Accession, Jammu and Kashmir joined the then Dominion of India, under the Indian Independence Act 1947. It immediately transferred responsibility for its defence, foreign affairs, and communications.
Maharaja Hari Singh decided to accede to India, in the face of entreaties and threats from Pakistan, as was his privilege. But perhaps he hesitated too long, hoping no doubt to stay independent, and turned to India only under duress.
Pakistan had already moved to take Jammu and Kashmir, only falling back to occupy what we now refer to as Pakistan-occupied Kashmir and Gilgit-Baltistan. It used regular troops disguised as “Pathan tribesmen”, in the earliest avatar of Pakistani cross-border terrorism.
Based on this signing, Indian Army troops were airlifted into Srinagar, the very next day, on the 27 October. The troops saw to it that most of Jammu and Kashmir including the capital and the Srinagar Valley and environs was retained.
India, under Prime Minister Jawaharlal Nehru, dithered at today’s LoC, refusing to let its Army reclaim PoK from Pakistan. Instead, Nehru referred to the newly formed United Nations — launched only in January 1946 — the illegal occupation of PoK and Gilgit-Baltistan.
And there the PoK issue sat, unresolved to this day. In retrospect, it appears that Prime Minister Nehru tacitly allowed the partition of the Kashmir portion of Jammu and Kashmir, probably hoping for a peaceful coexistence that was not to be.
Lately, China, which formed into a Communist Republic under Chairman Mao in 1949, and soon invaded Tibet with impunity in 1950, has built its China-Pakistan-Economic-Corridor (CPEC) road.
This extends from its largely Muslim Xinjiang province through PoK/Gilgit-Baltistan and on through all of Pakistan to Gwadar in Balochistan.
Mountbatten wanted plebiscite in Jammu and Kashmir
Lord Mountbatten, to try and mollify Pakistan even as he leaned towards India in the matter of the Accession, made suggestions, that a plebiscite should perhaps be called. This, in a letter dated 27 October 1947. This was never taken up by India, even as Pakistan has raised the idea intermittently, several times since, and up to this day.
India was busy drafting its own Constitution immediately after independence, promulgating it on Republic Day, 26 January 1950. This document has, notwithstanding amendments from time to time, regulated the affairs of both the Centre and the States in a quasi-federal manner ever since.
All the princely states, including Jammu and Kashmir, which had signed similar Instruments of Accession, were invited to send representatives to India’s Constituent Assembly. When the Indian Constitution was completed, they did not see the need for separate State Constitutions, though some moved amendments that were, in several cases, adopted.
Genesis of Article 370
The infamous Article 370, drafted to sit in Part 21 of the Indian Constitution — the “temporary, transitional and special provisions section” — was necessitated because Jammu and Kashmir was the only State that wanted to draft its own Constitution. It was promulgated on 17 November 1956, crucially declaring that the State of Jammu and Kashmir “is and shall be an integral part of the Union of India”.
But when the Jammu and Kashmir Constituent Assembly dissolved itself on 25 January 1957, it neglected to request revocation of Article 370, which stipulated that all Indian Union powers would apply to Jammu and Kashmir only with the concurrence of its “Constituent Assembly”. The Indian Union, on its part, also did not scrap the temporary provision. But a lot of Indian constitutional provisions have been adopted in Jammu and Kashmir well after the dissolution of its Constituent Assembly.
The apparent neglect resulted in a temporary provision staying on the books and morphing Jammu and Kashmir into a “special status” State. In time, Art 370 was converted into the holy grail by motivated Valley politicians.
A 1974 accord between Prime Minister Indira Gandhi and Sheikh Abdullah agreed that Jammu and Kashmir was “a constituent unit of the Union of India”, but was governed via Article 370.
But, Article 370’s essential nature, as a temporary provision, allowed to remain, gradually became an impediment to growth and national integration.
In December 2016, The Supreme Court of India disabused the High Court of Jammu and Kashmir which stated that the State of Jammu & Kashmir had “absolute sovereign power”. It insisted it had “no vestige” of sovereignty outside the Constitution of India. Yet the Jammu and Kashmir High Court, taking its authority from the temporary provision in a loop of logic ruled Article 370 cannot be “abrogated, repealed or even amended”. The Supreme Court, in its wisdom, gave a concurrent opinion on 3 April 2018.
This, however, is not the last word on the matter. Should the Government of India decide not to appeal, it can just abrogate Article 370 in parliament by the procedure reserved for constitutional amendments.
Fresh legislation invoking Jammu and Kashmir’s essential status as an integral part of India and the necessity of removing roadblocks to its development and integration with the Indian Union can be the basis. This, along with a two-thirds vote of the strength of both houses will supercede and override the 2018 opinion of the Supreme Court.
From recent pronouncements of the outgoing government and the prominence given to this matter in the BJP Sankalp Patra, this appears to be the direction it will take post the elections if the NDA returns to power with adequate strength.
But, given the number of dilutions to its autonomy Jammu and Kashmir has undergone over the years, is it even necessary to do away with Article 370? Amending various provisions of the Jammu and Kashmir Constitution in its Assembly is — and has been — the preferred route.
What about 35A?
That leaves us with Article 35A. It was added to the Indian Constitution through a Presidential Order on 14 May 1954 by President Rajendra Prasad on the advice of Prime Minister Nehru.
It was birthed with reference to Article 1 of Article 370 during the currency of the Jammu and Kashmir constituent assembly. It conferred Indian citizenship on all people of Jammu and Kashmir, but they, in turn, sharply restricted the rights of “outsiders” in the state.
35A, most damagingly from today’s perspectives, determines who can be deemed to be a “permanent resident” of Jammu and Kashmir, with related rights to benefits, property and land in the state. It snatches away the inheritance rights of children born to Kashmiri women who marry other Indians, but not if they marry Pakistanis!
Jammu and Kashmir, to be fair, has always been wary of being inundated by people from elsewhere. It had restrictions on land purchase by outsiders, including the British, given its excellent climate and exceptional scenic beauty, even during its existence as a princely state under British paramountcy.
Here’s how to get rid of it
But, there is no reason why, as in a number of other States, so-called outsiders cannot own land and property in limited amounts and reside freely in the state.
At present, 260 of the 395 Articles of the Indian Constitution, via a series of over 40 presidential decree amendments to Article 35A, are applicable to Jammu and Kashmir.
But the most critical thing is a question of a toxic and exclusivist demography that has created a heinous and bloody separatist movement in the Kashmir Valley aided and abetted by Pakistan.
This result may not have ever been the intention in 1954, but cannot be wished away in 2019. Removal of Article 35A just via another presidential decree will address the various unintended consequences of this provision.
Removing 35A and its ability to control state citizenship rights, benefits, and property matters, will automatically declaw Article 370 as well. Any legal sophistry with regard to a state constituent assembly that was dissolved in 1957 will then be rendered irrelevant.