Kashmir – An Integral part of India

We, the people of India, have always been emotional while talking about Kashmir. No matter which state we come from, what is our mother tongue or what religion we follow, Kashmir is a subject that always instigates our patriotic feeling. This is because Kashmir has always been at the focal point of our political discussions since independence, the reason being the unique relationship of J&K with the Indian Union. This relationship has now undergone a drastic change following the presidential assent to two separate bills which have respectively led to the scrapping of the special status to J&K and bifurcating the state into two Union territories – J&K with a legislative assembly and Ladakh without one. There has been a long standing debate in India about the special status of J&K which granted an unparalleled autonomy to the state to the extent that it could have its own constitution and even its own flag. The Kashmiris even had dual identities – they were state subjects as well as Indian Citizens unlike people of other states of India who have a single identity and are identifiable as Indians only. The autonomy granted to the state to define its 'permanent residents' led to discriminatory laws which prescribed preferential treatment to the ‘permanent residents’ of the state. The non-permanent residents of the state were denied the rights to settlement in the state, opportunity for employment in the state government sector, educational opportunities in the state government institutions, voting rights in the state assembly elections and reservation benefits to SC, ST and backward caste candidates in the state assembly elections. The property rights discriminated based on gender and between permanent and non-permanent citizens. To understand why J&K is so different from any other state of the Indian Union, we need to understand Article 1 of the Indian Constitution along with Article 370 and Article 35A. But even before any attempt to understand the constitutional position of J&K vis-à-vis the Indian Union, we need to look at why and how the relationship of the state with the Indian union got defined the way it was.

Jammu and Kashmir, a part of the Sikh empire, was lost to the British East India Company in the first Anglo-Sikh war.  The Company transferred it to Raja Gulab Singh in the treaty of Amritsar in 1846. Since then J&K was a princely state of the British Empire in India and was ruled by the Dogra dynasty. The ruler of J&K at the time of Independence in 1947 was Maharaja Hari Singh. With independence, the British paramountcy on the princely states lapsed and the Mountbatten Plan for partition allowed the princely states to accede to India or Pakistan or remain independent. But the princely states depended heavily on the British Empire, due to the system of subsidiary alliance, for their internal and external security. This meant that remaining independent was not practically possible for most of the princely states. Mountbatten also wanted geographical integrity of India and hence supported India on the issue of accession of the princely states to geographically proximate dominion. There were 565 princely states at the time of independence, most of whose accession were smooth. But Hyderabad, Junagarh and J&K were exceptions. Hyderabad and Junagarh were finally integrated through military action. But the ruler of J&K wanted to remain independent. Maharaja Hari Singh was a Hindu ruler ruling a Muslim dominated province which formed a border state and hence could not decide on whom to join. He signed a standstill agreement with Pakistan. This was an instrument for the princely states and the dominions of India and Pakistan to continue the administrative and logistic relations as they existed before Independence. But anticipating the intentions of the Hindu ruler of acceding to India, Pakistan invaded Kashmir on 20^th October 1947 with the help of Pakhtun tribesmen to forcefully acquire Kashmir. Seeing the situation getting out of hand, Maharaja Hari Singh sought military help from India. But Mountbatten, the Governor-General of India, denied any military assistance before signing of the ‘Instrument of Accession’. This was an instrument facilitated by the Government of India Act, 1935 for the princely states to join British India. On 26^th October, 1947 Maharaja signed the ‘Instrument of Accession’ and on 27^th October, the Indian army was airlifted to Srinagar. But Mountbatten had persuaded Nehru for a plebiscite in Kashmir once the situation returned to normalcy and also for taking the issue to the UN. The Indian army along with the supporters of Sheikh Abdullah, the leader of National Conference who stood for a democratic and secular Kashmir, chased the invaders to Poonch in the West, and Dras and Kargil in the north when India and Pakistan accepted the UN proposal on Ceasefire. Areas like Mirpur, Muzaffarabad, Gilgit and Baltistan were still under Pakistani occupation. This area under Pakistani occupation is today known as PoK (Pakistan Occupied Kashmir) in India and Azad Kashmir in Pakistan and the ceasefire line is called the LoC (Line of Control). It is therefore often said that the timing of accepting the proposal of ceasefire and the announcement of plebiscite were not anticipative of their ramifications. The UNSC Resolution on Ceasefire, 1948 called for complete withdrawal of Pakistani invaders from J&K and minimization of Indian troops in the state following which a plebiscite should be held. But Pakistan never withdrew its militants from PoK and hence plebiscite could not be held. Therefore, Kashmir is still a burning issue between India and Pakistan which could not be solved even after 70 years of Independence of the two nations.

Due to the unusual circumstances under which J&K signed the Instrument of Accession and the promise that Nehru did to the people of J&K for a plebiscite after the situation returned to normalcy, an interim setup was designed under which Article 370 was inserted into the Indian Constitution. It accorded a special status to the state of J&K under which an unusual autonomy was provided to it and hence only some articles of the Indian Constitution was made applicable to the state via a presidential order issued in 1950. Later on, a Delhi agreement was reached between Nehru and Sheikh Abdullah who was the then Prime Minister of J&K following which two more presidential orders were passed in 1952 and 1954. The 1954 presidential order superseded the previous orders and extended many articles of the Indian Constitution to the state. The Indian citizenship, fundamental rights, jurisdiction of the Supreme Court and the famous Article 35A among other provisions were made effective for the people and state of J&K through this presidential order. Article 35A empowered the state assembly to extend privileges to the ‘permanent residents’ of the state with regards to settlement, acquiring immovable property, educational opportunities, employment and voting rights. The eligibility to be a ‘permanent resident’ of the state was defined in the Constitution of J&K which came into force on 26^th Jan, 1957. With this, the Constituent Assembly of J&K, which was convened to draft this Constitution, dissolved itself on the same day without amending or abrogating Article 370 which was meant to temporarily describe the relationship of the state with the Indian Union for the transient phase when the J&K Constitution was in the making. Thus, J&K became an integral part of the Union of India through the ‘Instrument of Accession’ which was formally represented in the Constitution of India within article 1 and Schedule 1 of the Indian Constitution. This accession was ratified by the Constituent Assembly of J&K, an elected body of representatives of the people of J&K. The Preamble and Article 3 of the Constitution of J&K clearly states that J&K is and shall be an integral part of the Union of India.

Hence, accession of J&K to the Union of India cannot possibly be challenged based on the argument that a plebiscite, as promised by Nehru, was not held. This is due to the ratification of the ‘Instrument of Accession’ by the Constituent Assembly of the state besides the fact that the conditions for holding a plebiscite never occurred. But a division of the state by the LoC meant that a part of the undivided J&K which got acceded to the Indian Union is now under the de facto control of the neighboring country Pakistan. Moreover, after the 1962 war with China, a further part of Ladakh, an erstwhile province of the state of J&K, called the Aksai Chin and the Sakshgam Valley went to the de facto control of China. At present, only about 45% of the undivided J&K is under the control of India and the rest is under Pakistan and China.  Due to this unfortunate trifurcation of the state, an unanticipated atmosphere clouded the 'Paradise on Earth'. There is a constant tension along the borders manufactured by Pakistan which gives rise to and fuels separatist and secessionist forces in the valley. There is a small region in the north called the Siachen glacier which is under the Indian control and it divides the PoK and Aksai Chin explaining its strategic importance for India. On the other hand, Article 370 and Article 35A both of which extended extraordinary powers to the state of J&K with regards to the applicability of the Indian Constitution to the state also prevented the psychological integrity apart from the constitutional integrity of J&K with India. The people of J&K feel different, if not alienated, from the people of the rest of India due to them being part of a state with a different flag, different constitution and different identity. Now the Government of India has decided to do away with the special status accorded by Article 370 to the state of J&K, which means inter alia that the state (now a Union territory) shall not have a different flag, a different constitution and that Article 35A, a derivative of Article 370, is rendered abrogated automatically. The fathom of panic that this decision has created in Pakistan is itself an indication of how crucial this article was for Pakistan to continuously incite separatist movements in Kashmir. Constitutionally, the people of J&K shall therefore, not be identifiable as ‘Kashmiris’ anymore since they have become one amongst us – Indians, giving effect to the expression that 'J&K is an integral part of India'.

.....to be explored further in the subsequent articles.

                                                                           By – ABHIJEET ROY