The constituent assembly of India almost prepared the constitution until June 1949, however, there was no reference of Kashmir as the Assembly had no members of Jammu & Kashmir. Jawaharlal Nehru insisted Sheikh Abdullah to become a member of the constituent assembly. Sheikh Abdullah in return put forward a condition that the accession should be in connection with only three basic areas, Defence, External Affairs and Communication. Moreover, he also wanted the right of a separate constitution for Kashmir.
This move was completely contrary to the Union State type relations in the Constitution of India. In order to accommodate the conditions of Jammu & Kashmir, there was a need for a special provision in the form of an article. The Indian Government agreed to give the right to make the constitution to Jammu & Kashmir. The concept of special status was agreed in principle by Nehru, Sardar Patel, and Gopalaswami Ayyangar. Accordingly, Article 370 was proposed to be added to the Constitution of India. As a matter of procedure, it was to be discussed in the constituent assembly of India. However, when it actually came for discussion in the assembly, none of the Congress members agreed with this provision. In reality only two members stood for this article. First was the presenter of this proposal, Gopalaswami Ayyangar and second Maulana Abul Kalam Azad. Sardar Patel finally supported this Article and on 17th October 1949, the draft of this article was presented before the Assembly and was approved only with the prior condition that it shall be inserted under the heading of ‘Temporary Provisions with respect to the state of Jammu & Kashmir.’
Article 370 was incorporated in the Constitution of India. It clearly stated that the provisions with respect to the State were only temporary. Although this provision was temporary, what started after this was a prolonged struggle for identity and related crisis. It took seven decades to finish the so-called temporary provision in the Constitution of India. After reading this, one must have realized that the background of Article 370 was not debatable, however, the repercussions of the same are. On one hand, Article 370 became a shield to protect Jammu & Kashmir but, on the other hand, it gave a definite reason for a disgruntled majority mindset in India. The separate status and subsequent separate treatment for Jammu & Kashmir gave rise to many questions in the minds of the common people.
The separate treatment for Kashmir did not stop there. What came after that was the 1952 Delhi agreement and Article 35A in the Constitution of India.
The Maharaja left subjects such as defence, external affairs and communications for the Government of India. The Kashmir Policy of Government of India resulted in the 1952 Delhi Agreement, whereby the Governments of the State and the Union agreed that Indian citizenship would be extended to all the residents of the state but the state would be empowered to legislate over the rights and privileges of the state subjects, who would now be called permanent residents.
In his statement to the Lok Sabha on the Delhi agreement, Nehru clearly admitted the question of citizenship assuring full citizenship. He also took cognizance of the apprehension of Kashmiris. There were laws that prevented any outsider for a long time meaning any person from outside Kashmir was barred from acquiring or holding land in Kashmir. Maharaja, during the British India period, was very much afraid of a large number of Englishmen coming and settling down there, as the climate was delectable, and to acquire properties. The Maharaja strictly maintained that no outsider shall acquire the land there despite most of their rights being taken away under the British rule. Nehru also admitted that the present Government of Kashmir was very anxious to preserve that right. It was because they were apprehensive, that Kashmir would be crowded by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. Nehru expressed his agreement to the fact that the State legislature shall have the power to define and regulate the rights and privileges of the permanent residents of the State, more especially in the case of the acquisition of immovable property, appointments to services and like matters.
What is Article 35A?
The State Legislature of Jammu & Kashmir acquired power to make the following provisions.
(a) to define who is the resident of Jammu & Kashmir
(b) Granting of following rights to those residents—
(i) State Government employment;
(ii) possession of immovable property in the State;
(iii) permanent residence in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide,
What Made This Article Morally Binding?
Right from the beginning, the communities in Jammu & Kashmir were concerned about the British expansion across India. They had also observed that Britishers were also always interested in taking the land of natives and developing them for their own purpose. With this policy, Britishers had developed several areas into hill stations. The well-read, well educated and well aware Pandit community in Jammu & Kashmir was prompt in understanding the British planning. Hence, the community started an agitation at the right time. The outcome of the dissertation was the act of citizenship made by Maharaja. This was the 1927 Hereditary State Subject Order. It granted the right to government offices and the right to use land and ownership, only to the state subjects.
The Constitution (Application to Jammu & Kashmir) Order, 1954 was issued by President Rajendra Prasad under Article 370, with the advice of the Union Government. It was enacted as subsequent to the ‘1952 Delhi agreement,’ reached between Nehru and the then Prime Minister of Jammu & Kashmir Sheikh Abdullah, which dealt with the extension of Indian citizenship to the Jammu & Kashmir “state subjects”.
Praja Parishad began a statewide agitation against article 370 in 1952. The demands of agitators were to repeal article 370 and cancel the Delhi agreement of 1952. The main slogan of this education was “Ek desh mein Do Vidhan, do Nishan, do Pradhan Nahin chalenge Nahin chalenge.” (No two constitutions, two Prime Ministers, two National flags in one country). The government had to turn a blind eye to these agitations, as the Agreement of 1952 was an important formality to complete the accession process. The cognizance of this agitation was taken and Jawaharlal Nehru personally met Sheikh Abdullah and discussed the complete accession of Jammu & Kashmir in India. Sheikh Abdullah in return adamantly demanded complete autonomy to the state.
In 1952, Dr. Shyama Prasad Mukherjee had resigned from the Union Ministry on the same issue. As a method of peaceful agitation, he tried to enter Jammu & Kashmir without a regional license, was immediately arrested, and died in prison on June 23rd,1953. The notion of a foul play about his death holds ground even today. In general, this was the defeat of the belief that Kashmir could be easily accommodated in India with special status, special rights, and a huge amount of concessions. Finally, it was Maulana Abul Kalam Azad who was first to advise Nehru for dismissal and detention of Sheikh Abdullah who was dismissed and arrested on 8th August 1953. He accused Nehru of forming Hindu State in Jammu & Kashmir. He was released in 1964.
During the period of Lal Bahadur Shastri, many articles of the Indian constitution were applied to Jammu & Kashmir, most importantly article 356 that enabled the Union Government to dissolve the assembly and bring the state under the Presidential Rule. Moreover, the positions of Sadr-i-Riyasat and Wazir-e-Alam were changed to the Governor and Chief Minister respectively. Lal Bahadur Shastri officially began Jammu & Kashmir Pradesh Congress.
The Supreme Court of India in Sampat Prakash case (1969), held that any amendment to the Indian Constitution (done under Article 368) would apply to Jammu & Kashmir only if it is extended to the state by a Presidential Order under Article 370.
The Indira-Sheikh Accord:1975
Bangladesh’s freedom war of 1971 and India’s formidable victory in that war changed the mindset of Abdullah making him realize that he cannot achieve what he wants by direct approach. He then began his demands for autonomy and changed his language completely. The outcome of his new approach was the Indira Sheikh Accord 1975.
Following were the main provisions of this Accord:
Continuation of Art 370
- The State shall possess the residuary powers of legislation; but the legislation related to prevention of activities directed towards refusal to acknowledging, questioning or unsettling the sovereignty and territorial integrity of India or causing humiliation to the Indian National Flag, the Indian National Anthem and the Constitution shall remain with the Parliament of India.
- No agreement on the question of nomenclature of the Governor and the Chief Minister and therefore the matter remitted to the principals was possible.
Most importantly Abdullah agreed on the fact that Jammu & Kashmir was an integral part of India which was the biggest victory for the Indian government, the credit for which goes to Indira Gandhi, the then Prime Minister of India.
The Farooq Abdullah Period
Farooq Abdullah was the natural successor after his father Sheikh Abdullah’s death in 1982. In 1990, the Kashmiri Pandits faced their worst nightmare when the Hindus of the Kashmir Valley were forced to flee as a result of being targeted by Jammu & Kashmir Liberation Front during late 1989 and early 1990. According to the Indian government, more than 62,000 families were registered as Kashmiri refugees including some Sikh families. A huge amount of families resettled in Jammu, National Capital Region surrounding Delhi and other neighbouring states.
The nature of insurgency in the state of Jammu & Kashmir changed in the period of 2004-11. Supporting the infiltrations activities in Jammu & Kashmir and thereby creating terrorists in the name of freedom fighters has also been a problem for Pakistan. The Pakistani president General Pervez Musharraf was attacked twice by Kashmiri terrorists. The Pakistani President Asif Ali Zardari was also calling Kashmiri insurgents terrorists. However, Pakistan’s attitude towards the war against terrorism is never sincere. There have been widespread protests against the Indian army presence in Kashmir. According to reports, a very powerful organization named Hizbul Mujahideen is slowly running out of resources and manpower.
2012 – Present
Since 2009, the manifestation of people’s unrest has taken a new dimension and the turmoil has become more serious and dangerous. People, especially youngsters of the Kashmir Valley, have started pelting stones on security forces to express their anger and protest. They are answered by the security forces with pellets rubber bullets slingshots and tear gas shells.
In the words of Kashmiri journalist Parvez Bukhari, the Indian controlled part of Kashmir and UN President is in deadly civil unrest that is beginning to change a few things on the ground.
Why was Article 35A Being Debated Upon?
In 2014, the validity of Article 35A was challenged by a Delhi based NGO, ‘We the Citizens’. The issue of contention was that it had not been included in the Constitution of India under the provision of Article 368. The petitioner argued that it wasn’t passed by the parliament but was very promptly promulgated.
A two-judge Supreme Court Bench comprising the then Chief Justice J.S. Khehar and Justice D.Y. Chandrachud referred it to a three-judge bench after the Attorney General opined that it raised constitutional issues.
This provision does not provide a Kashmiri woman to marry outside the state. If she does, she loses her right to property. Two Kashmiri women argued that this law had disenfranchised their children. They contended that this provision was against women and subsequently against Article 14 of the Constitution. However, it does not apply to the children of a Kashmiri man marrying a woman from outside the State; leading to blatantly discrimination.
The discussions and debates across India were going on and in 2014, came the Narendra Modi led Bhartiya Janata Party Union Government. The BJP had Article 370 as one of its three main issues on the agenda. While the other two were the Construction of Ram Mandir in Ayodhya and implementation of the Uniform Civil Code in India.
Article 370, No More
A New Dawn Or One More Leviathan
On 5th August 2019, the Indian Parliament repealed many of the provisions of article 370. Jammu & Kashmir was divided into two union territories. The Prime Minister of India, Narendra Modi was so proactive on this move that after 10 days, in his Independence Day speech, he clearly mentioned that Ham Samasya Ko Thukraate Bhi Nahin aur Paalte Bhi Nahin ( we don’t avoid the problems, neither do we entertain them). This direct approach was not acceptable to many. Article 370(3) clearly states that the president by a notification could cease to operate the provisions of this article provided that, this act of the president shall be executed only on the advice of constituent assembly of Jammu & Kashmir. But such a constituent assembly was dissolved on January 25th, 1955. Although the article begins with the word ‘Temporary’, it existed for seven long decades.
The elite class of Pakistan has started agreeing to the fact that India owes its development to the constitutional nature of Indian system. The evolution of both countries in the last 70 years says everything.
The Pakistan sponsored terrorism in India began in 1956 all the targeted area was Northeast India. At this juncture, India was busy building the IITs, IIMs, AIIMs, and the LIC. In the mid-1960s when Pakistan was planning to attack and possess Kashmir, India was busy in the green and white revolution. In the 1970s when Pakistan was planning a war against India, we were busy in our nuclear program. Until the 1980s Pakistan’s economy was larger than the Indian economy. We were actively welcoming Information and Communication Technology. In 1990, Pakistan was trying to explore bombs across India, while we were welcoming Globalisation into our economy. In the first decade of 2000 again we were constructing Highways across India and Metros in big cities. Today when Pakistan is trying to destabilize India for the same cause of Kashmir, we are trying to connect Vikram Lander in our lunar mission called Chandrayaan 2.
The story of India and Pakistan is all about the difference between Constitutionality and Chaos.
“Saamaan kuch nahin phate haal hai, Magar jhole mein uske koi Samvidhan toh hai”.Poet Dushyant