Kashmir

The Kashmir issue arose between August 1947 and January 1948. Kashmir was a princely state with a Hindu King ruling over a predominant Muslim population, who was reluctant to join either of the two domains. The case of this state was not very different but was a tough one as it had important international boundaries. Geographically, Jammu and Kashmir was closer to the areas that would become part of Pakistan — western Punjab and the North-West Frontier Province. It had multiple transient points, such as the only railway line connecting to Jammu via Sialkot, the Sialkot-Jammu Road and the Srinagar-Muzaffarabad Jhelum Valley Road, through which most of the trade in petrol, kerosene, flour, sugar etc. took place.

The main concern for Hari Singh was that if he accedes to Pakistan, the Islamic Rule in the domain would not let the Hindu Ruler survive, and if he acceded to India, then its democracy would not accept a monarch. Hence, instead of joining any of the dominions, Maharaja Hari Singh proposed a Standstill Agreement.

On 12 August 1947, J&K sought a standstill agreement with both India and Pakistan, stating: “Jammu and Kashmir government would welcome standstill agreement with Union of India/Pakistan on all matters on which there exists arrangements with the outgoing British India government.”

Pakistan accepted the offer and sent a communication to Jammu and Kashmir’s Prime Minister on August 15, 1947, it read “The Government of Pakistan agrees to have a Standstill Agreement with Jammu and Kashmir for the continuation of existing agreements…”. India did not agree to the offer and advised Maharaja to send his authorized representatives to Delhi for discussion on the offer.

However, the Muslim League was not sincere to this agreement. Even before independence, Jinnah had boastfully declared that “Kashmir is a blank cheque in my pocket.” Jinnah was certain that Kashmir natives wanted to join Pakistan dominion. First, they used the religious card and used sentiments of Muslim population, especially those who lived in Pooch and encouraged an armed rebellion against the Maharaja. It was in June 1947, about 60,000 ex-army men (mostly from Poonch) had started a no-tax campaign. Then on October 2, in violation of the Standstill Agreement, they stopped all essential supplies to the State of Jammu and Kashmir.

When the Ruler did not give into this blackmailing, Jinnah sent Akbar Khan, a senior member of Pakistan’s Military, to Waziristan (now in Pakistan) to create a tribal Muslim army, now known as Azad Kashmir Regular Force, who were later joined by Pakistan’s army. On 20 October, 1947 approximately 10,000 troops started marching from Waziristan to Srinagar. Maharaja Hari Singh sent his army to safeguard his Kingdom, forgetting the fact that 60% of his army constituted of preachers of Islam. On 23 October, the Pakistani army reached Uri, and appallingly, by this time a large number of men from Hari Singh’s army joined Pakistan’s army. They attacked from several points and indulged in bloodshed and mayhem. Looking at this tense situation Brigadier Rajinder Singh Jamwal, an officer in the Jammu and Kashmir State Forces suggested that Maharaja Hari Singh flees to Jammu from Srinagar. The King asked V.P. Menon for help and he discussed this issue before the cabinet in Delhi. During this meeting, Lord Mountbatten was of the view that if India sends its army to Kashmir, even though it is not an integral part of India, the message that it would convey is that “India had just gotten independence and is sowing the seeds of international war and disrupting international peace.”

While this discussion was happening in Delhi, Brigadier Rajinder Singh Jamwal, disintegrated the only bridge that was connecting Uri to Srinagar, in order to buy the King some time, to get reinforcements. However, this did not hold the army for long. After two days, when this wild army reached Baramulla targeted the small but comparatively prosperous Sikh community in and around Baramulla, and several Sikh women were abducted. But the looting, accounts the sexual violence, also extended to Muslim households, shops, and businesses. The Roman Catholic mission hospital was ransacked and six people were killed, including a Spanish nun and a British army officer and his wife. Survivors of the attack were confined by the invaders to a hospital ward for ten days before being evacuated by the Pakistani army.

On October 26, 1947, V.P. Menon and Mahr Chand Mahajan persuaded the Maharaja and said that the only way to save Kashmir is if he signed the Instrument, and wanting to protect his state the Instrument of Accession was finally signed by the King.

The Instrument gave India’s Parliament the power to legislate in respect of Jammu and Kashmir only on the matters of defence, external affairs and communications. Apart from defence, communications and external affairs, the Instrument mentions ancillary subjects that include elections to the dominion legislature and offences against laws with respect to any of the said matters. 

Under Clause 5, the Maharaja explicitly mentioned that the terms of the Instrument of Accession “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.” In Clause 7, he said, “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 of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution.”

EVENTS AFTER ACCESSION OF KASHMIR

Governor General of Pakistan refused to accept this accession. Talks were to be held between the Governors-General and Prime Ministers of India and Pakistan at the state level, focused on the Kashmir dispute on November 1947. Before the negotiations started, Prime Minister Nehru fell ill and his Deputy PM, Vallabhbhai Patel, refused to come to Lahore, stating “there was nothing to discuss with Pakistan’s leadership.” On 1 November 1947, Mountbatten left for Pakistan to begin talks between the Governors-General of India and Pakistan over the issue of Kashmir. The talks lasted for three-and-a-half hours, where Mountbatten offered to Jinnah that India would hold a plebiscite in the state of Jammu and Kashmir, provided that Pakistan withdrew its military support for the Azad Kashmir forces and their allies. Mountbatten also stipulated that the Indian Army would remain in the Kashmir Valley. Jinnah opposed the plan and claimed that the Kashmir, with its massive Muslim majority, belonged to Pakistan as an essential element in an incomplete partition process. While these talks were going on, on 2 November, 1947, Nehru gave a speech which turned out to be a turning point for India. He stated that as soon as situation becomes normal in Kashmir, the government would hold a plebiscite, and whatever the result will be, shall be accepted by the nation.

Meanwhile, this war between India and Pakistan lasted up till about 31 December, 1947. On 31 December, Government of India reached United Nations and registered a complaint under Chapter VI. Upon this, a meeting was called in the United Nations Security Council where United Kingdom and United States of America took their stand against India.

 On 2 April, 1948 United Nations passed a resolution, which had three parts, namely:

1. Cease-Fire Order – The document stated that both the countries will stop the war immediately in order to restore peace, and a Line of Control (LOC) is drawn at the place where this war stops. On 31 December, 1948 this document was finalised by both the countries and on 1 January 1949 this war finally came to an end.
2. Truce Agreement – This stated that since Pakistan has accepted that their army-men are in Kashmir, Pakistan will be the first to withdraw their troops from the land. Moreover, since Pakistan has also accepted that many native Pakistanis (non-army men) were in Kashmir, the Pakistan government will make arrangements to bring them back to Pakistan thereof. The third point to this stated that when the United Nations will inform India that Pakistan has recalled all their army and non-army men from Kashmir, only then India will start withdrawing its force, and will slowly take them out of Srinagar.
3. Others – It stated that both the countries are agreeing to plebiscite, and when the first two conditions are fulfilled, then the local administration will conduct this plebiscite, and the results to which will decide the future of Jammu and Kashmir.

It is noteworthy that when Nehru wanted a plebiscite in the state of Jammu and Kashmir, he was sure that the citizens of Jammu and Ladakh would agree to accede to India, and he was also sure about Kashmir, since the most popular figure after the King’s departure was Sheikh Abdullah who was in the favour of Kashmir integrating with India.

On 31^st December 1948, when the “cease-fire order” was signed by both the countries, it so happened that 1/3^rd of Kashmir was with Pakistan and the rest 2/3^rds was with India. It is often said that if Nehru would not have signed this order and instead would have asked the Indian Army to continue their operation on Kashmir, then Kashmir would have been an integral part of India from the very beginning. However, the main reason for why Nehru agreed on signing this order was the Hyderabad situation.

Majlis-e-Ittehadul Muslimeen or MIM (now known as AIMIM or All India Majlis-E-Ittehadul Muslimeen) is an organization of radical Muslims who supported the then ruler of Hyderabad in every aspect and in return MIM received King’s support as well. This organization was of the view that Hyderabad should accede with Pakistan, and if not, then Hyderabad should stay independent. Razakars, a paramilitary volunteer force of the MIM also wanted Hyderabad to accede to Pakistan in order to maintain the “Muslim rule.” Taking advantage of the Standstill Agreement signed between the Nizam and the Government of India, these Razakars targeted Hindus as well as Muslims whose loyalty was in question, in other words, who wanted Hyderabad to accede to India. They also fought communists who were launching a revolution in the state.

Looking at the tense situation, on 13 September 1948, India sent its troops to Hyderabad. General Joyanto Nath Chaudhuri led an armoured column into Hyderabad at around 4 p.m. on 18 September and the Hyderabad army, led by Major General El Edroos, surrendered. Indian Army took control of the State and this operation is famously known as “Operation Polo.” While all this was happening, the Nizam of Hyderabad reached the United Nations Security Council (UNSC) and stated that India has “attacked” Hyderabad. When the United Nations enquired about this “attack” to Sarad Valla Bhai Patel, he simply stated that it was a “police action.”

This violence in the state led to many deaths. The Sunderlal Committee, which was appointed by the Prime Minister Jawaharlal Nehru were Pandit Sunderlal and Qazi Abdulghaffar prepared a report on the situation concluded that between 27,000-40,000 people had died in total in the state. 

After the questions asked by the UNSC, Nehru signed the cease-fire order in the fear that the situation in Kashmir would become an international war, and for India, it would be hard to manage the situation if that happens.

This is how Jodhpur, Junagarh, Hyderabad and 2/3^rd of Kashmir was now part of the Indian dominion.

CONSTITUTIONAL STRUGGLE FOR KASHMIR

When the Instrument of Accession was signed by Maharaja of Kashmir, one condition which was put forth was that Sheikh Abdullah will handle all the “emergency” situations in Kashmir, and Maharaja agreeing to this issued an order stating that Sheik Abdullah shall be the Chief of emergency administration of Kashmir, which came into force on 30 October, 1947. Sheikh Abdullah was an Indian politician who played a central role in the politics of Jammu and Kashmir. Referred as Sher-i-Kashmir (Lion of Kashmir), Abdullah was the founding leader of the All–Jammu and Kashmir Muslim Conference.

During the Indo-Pak war, it was Sheikh Abdullah who was constantly supporting India and was also ensuring that the residents of Kashmir valley also support India. After a few days, Maharaja Hari Singh made Sheikh Abdullah the leader.

The question which was in front of everyone was that now that Kashmir has acceded to India, what is the next step until plebiscite is held?

In June 1949 a meeting was held primarily between Sheikh Abdullah, Sardar Valla Bhai Patel and Jawaharlal Nehru, which is known as “Delhi Understanding.” It was decided during this meeting that since the Drafting Committee is making a Constitution for India, the future of Jammu and Kashmir should also be decided in the Constitution. After this meeting, four representatives of Jammu and Kashmir became the members of our Constituent Assembly, they were, Sheikh Abdullah, Mirza Afzal Beg, Massoudi, and Motiram Bagda.

The Constituent Assembly understood every aspect of India and Kashmir relation and came to a conclusion that some special measures are to be taken for the state of Jammu and Kashmir. When the representative of Jammu and Kashmir put forth their opinions, by a common agreement in the Constituent Assembly, Article 306(A) was presented in the draft Constitution. When the Constitution was finalised, this Article became Article 370, which fell under Part-XXI of the Constitution, which gave for Temporary and Transitional Provisions. During the 13^th Constitutional Amendment of 1962, when Article 371(A) was included under this Part, another term was included in the heading and now Part-XXI was to be called “Temporary, Transitional and Special Provisions.”

Provisions Under Article 370 Constitution

Article 370 reads as:

“370. Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything in this Constitution,

(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said State shall be limited to

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948;

(c) the provisions of Article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause (1) or in the second proviso to sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon

(3) 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: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification”

Understanding the provisions-

Article 370 (1)(A) stated that Article 238 of the Constitution shall not apply to the state of Jammu and Kashmir. Article 238 dealt with the application of provisions of Part VI to States in Part B of the First Schedule. It was omitted by the Constitution (Seventh Amendment) Act, 1956. This amendment to the Indian Constitution was needed to implement the recommendations of the States Reorganisation Commission regarding the reorganization of the states on a linguistic basis. It paved way for doing away with the classification of states in A, B, C and D categories and introduced Union Territories.

Sub-clause (1) (B) of 370 says that the Union Parliament can only make laws for the state, “in consultation with the Government of the State,” on certain matters that were specified in the Instrument of Accession – namely defence, foreign affairs, and communications. Moreover, with the concurrence of the Government of the State, the President may by order specify any other such matters on which the Union can make laws.

In sub-clause (C), it has been said that only two Articles of the Constitution shall be applicable to the State, which are Article 1 and Article 370.

Article 370 (1) (D) stipulates that, other constitutional provisions may be applied to the state from time to time, “subject to such modifications or exceptions” made by the president of India, also through a presidential order, as long as they do not fall within the matters referred to above and except with the concurrence of the state government.

Article 370 (2) states that if the Government of State has given concurrence on any of the aforementioned matters, then the Constituent Assembly of Jammu and Kashmir shall accept such concurrence, and then such provisions, in which the concurrence was given shall be finalised.

Article 370 (3) gives the President of India the power to amend or repeal article 370 itself through a public notification (declaring that this article “shall cease to be operative or shall be operative only with such exceptions and modifications”), provided that “the recommendation of the Constituent Assembly of the State” is given before the president issues such a notification.

The state of Jammu and Kashmir enacted its own Constitution, which was formally adopted by a Constituent Assembly on November 17, 1956, and entered into force on January 26, 1957 and hence the Assembly was dissolved on the same date as enactment of the Jammu and Kashmir Constitution. The main issue of concern was that since the Article 370 cannot be abrogated now since there is no Constituent Assembly.

Sheikh Abdullah had become the 1^st Prime Minster of the State of Jammu and Kashmir and he agitated against the rule of the Maharaja Hari Singh and urged self-rule for Kashmir. In 1952, Sheikh Abdullah made demands before the Government of India regarding many matters. This agreement is famously known as “Delhi Agreement.” The Delhi Agreement was signed between Prime Ministers of India and Jammu & Kashmir giving special position to the state under Indian Constitutional framework.

On 8 August 1953 he was dismissed as Prime Minister by the then Sadr-i-Riyasat (Constitutional Head of State) Dr. Karan Singh, son of the erstwhile Maharajah Hari Singh, on the charge that he had lost the confidence of his cabinet. He was denied the opportunity to prove his majority on the floor of the house and his dissident cabinet minister Bakshi Ghulam Mohammed was appointed as Prime Minister. Sheikh Abdullah was immediately arrested and later jailed for eleven years, accused of conspiracy against the State in the infamous “Kashmir Conspiracy Case”.

Presidential Order of 1954 and Article 35-A 

The Constitution (Application to Jammu and Kashmir) Order, 1954 applied to J&K the provisions of Part-III of the Indian Constitution that relates to fundamental rights. Besides, it introduced Article 35A which allowed the state of Jammu and Kashmir to define permanent residents of the state and certain “special rights and privileges” attached to such residency, including the power to restrict settlement to the state and acquire immovable property.

Article 35(A) of the Constitution reads as:

“35A. Saving of laws with respect to permanent residents and their rights .— Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,—

(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or

(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—

(i) employment under the State Government;

(ii) acquisition of immovable property in the State;

(iii) settlement in the State; or

(iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.”

The rights and privileges of permanent residents are laid down in part III of Jammu and Kashmir’s 1956 Constitution. It defined a Permanent Resident (PR) of the state as a person who was a state subject on 14 May 1954, or who has been a resident of the state for 10 years, and has “lawfully acquired immovable property in the state.” The Jammu and Kashmir state legislature had the power alter the definition of permanent residents or modify the privileges applicable to them through a law passed with two-thirds majority.

1. Further, no person who is not a Permanent Resident of Jammu and Kashmir can own property in Jammu and Kashmir.
2. No person who is not a Permanent Resident of Jammu and Kashmir can obtain job within Jammu and Kashmir Government.
3. No person who is not a Permanent Resident of Jammu and Kashmir can join any professional college run by government of Jammu and Kashmir or get any form of government aid out of government funds
4. Any woman who marries outside Jammu and Kashmir shall not be a Permanent Resident, and the woman and her children shall be prohibited from buying any property in the state and neither can they apply for any job in the state.

The Jammu and Kashmir High Court declared the provision relating to women of the State as “discrimination” and hence this provision was omitted in the year 2002.

This Order of 1954 was amended time and time again due to which a majority of the Constitution of India had become enforceable to the State of Jammu and Kashmir.

The First Amendment in the Constitution of Jammu and Kashmir in 1959 was done in order to give the Election Commission of India powers in the State. In 1964, Article 356 was introduced to the State of Jammu and Kashmir to control the situation of the State in cases of emergency. By this Article if a state government is unable to function according to Constitutional provisions, the Union government can take direct control of the state machinery. The introduction of Article 356 was done as Section 92 of the Jammu and Kashmir Constitution would eventually fail during an emergency.

Section 92 is read as:

“(1) If at any time the Sadar-i-Riyasat is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the Sadar-i-Riyasat may by Proclamation:

(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by anybody or authority in the State;

(b) make such incidental and consequential provisions as appear to the Sadar-i–Riyasat to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provision of this Constitution relating to anybody or authority in the State:

Provided that nothing in this section shall authorised die Sadar-i-Riyasat to assume to himself any of the powers vested in or exercisable by the High Court or to suspend in whole or in part the operation of any provision of this Constitution relating to the High Court.

(2) Any such Proclamation may be revoked or carried by a subsequent Proclamation.

(3) Any such Proclamation whether varied under sub-section (2) or not, shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate on the expiration of six months from the date on which its divas first Issued.

(4) If the Sadar-i-Riyasat by a Proclamation under this section assumes to himself any of the powers of the legislature to make laws, any law made by him in the exercise of that power shall, subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the Proclamation ceases to have effect, unless sooner repealed or re-enacted by an Act of the Legislature, and any reference in this Constitution to any Acts of or laws made by the Legislature shall be construed as including a reference to such law. No Proclamation under sub-section (1) shall be issued except with the concurrence of the President of India.

(6) Every Proclamation under this section shall, except where it is a Proclamation revoking a previous Proclamation, be laid before each house of the Legislature as soon as it is convened.”

Indira – Sheikh Agreement

In 1965, the terms “Sadar-i-Riyasat” and “Wazir-e-Azam” were replaced by “Governor” and “Chief Minister” respectively.

In 1967 Indira Gandhi was elected as the Prime Minister of the Nation, and in 1971 she held “pre-elections” and in her election meetings she boldly claimed that she will make many significant steps for India. As a result, Indira Gandhi won the 1971 election, and as soon as the Cabinet was formed, she started amending the Constitution of India. Following the 26th Amendment in 1971, all the privileges and allowances to the Prince, Chief and Ruler from the central government ceased to exist, which was implemented after a two-year legal battle.

Article 363A was inserted by this amendment which reads as follows:

“363A.Recognition granted to Rulers of Indian States to cease and privy purses to be abolished. – Notwithstanding anything in this Constitution or in any law for the time being in force-

(a) The Prince, Chief or other person who, at any time before the commencement of THE CONSTITUTION (Twenty-sixth Amendment) Act, 1971, was recognised by the President as the Ruler of an Indian State or any person who, at any time before such commencement, was recognised by the President as the successor of such Ruler shall, on and from such commencement, cease to be recognised as such Ruler or the successor of such Ruler;

(b) on and from the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, privy purse is abolished and all rights, liabilities and obligations in respect of privy purse are extinguished and accordingly the Ruler or, as the case may be, the successor of such Ruler, referred to in clause (a) or any other person shall not be paid any sum as privy purse.”

Around the same time, Pakistan started exploiting the Bangladeshi area, and stooped Sheikh Majibur Rahman from becoming their leader. When Indira Gandhi saw this exploitation, she asked Field Marshal Sam Hormusji Framji Jamshedji Manekshaw for his opinion on how to help Bangladesh. Under his command, Indian forces conducted victorious campaigns against Pakistan in the Indo-Pakistani War of 1971, which led to the creation of Bangladesh in December 1971.

On 8th March 1972 Sheikh in an interview to the London Times said “there is no quarrel with the Government of India about accession. It is over the structure of internal autonomy; one must not forget that it is he who brought Kashmir to India otherwise Kashmir could never have been part of India.” With this reconciliatory statement he showed an olive branch to New Delhi for his rehabilitation and Indira Gandhi was quick to respond in the Parliament where she stated “we welcome the change in the thinking of leaders of plebiscite who have accepted the finality of accession to India.”

This resulted into a bilateral dialogue between Indira Gandhi and Sheikh through their representatives G. Parthasarthi and Mirza Afzal Beig respectively which started on June, 12 1972. Sheikh insisted for restoration of 1953 position with respect to constitutional relationship between Jammu and Kashmir and India but Mrs. Gandhi was clear that hands of clock cannot be turned back. An Agreement was signed on 13th November, 1974 between G. Parthasarthi and M. Afzal Beig the agreement famously known as “Kashmir Accord” which reads that “the state of Jammu & Kashmir which is a constituent Unit of Union of India, shall in its relation with the Union, shall continue to be governed by Article 370 of Constitution of India.”

As this was signed, Sheikh Abdullah with the support of Congress legislature was sworn as Chief Minister on 25th February, 1975, and stayed in power until 1982 and when he died Farooq Abdullah as his successor, became the Chief Minister. And in 1984, Indira Gandhi died and Rajiv Gandhi became the Prime Minister.

It is said that Farooq Abdullah was able to win the 1987 elections only because of the Central Government’s support. The reason for this support was that Rajiv Gandhi was of the view that if any other person would have come into power in the State, it would impact the India-Jammu and Kashmir relations adversely.

As soon as the Indian National Congress came into power the State, the extremists started an armed rebellion in the State. Due to this rebellion the State was under President’s Rule for a long period of time. In 1990 an act was passed for the State, which was known as “‘Armed Forces (Special Powers) Act”‘ (AFSPA) that grants special powers to the Indian Armed Forces to maintain public order in “disturbed areas”.

ABROGATION OF ARTICLE 370 AND 35-A

In order to revoke the ‘special status’ of the state, Article 370 needed to be revoked, which could be done with President’s order on the recommendation of the Constituent Assembly as has been stated in sub-section (3) of Article 370. Or another way was to give the Union powers relating to all the matters of the State under 370(1)(B) or to include all the Articles on the Indian Constitution in 370 (1)(D).

In the 2014 general elections The People’s Democratic Party (PDP) ran a Coalition government in Jammu and Kashmir with the Bhartiya Janata Party until the BJP abandoned the coalition on June 19, 2018. The government fell in the state as there was a lack of majority and on 20 June 2018 the Governor of the State declared emergency for six months under section 92 of the Jammu and Kashmir Constitution.

On August 2018, Satya Pal Malik was appointed Governor to the state of Jammu and Kashmir. On 19 December 2018, the Governor again sent a report to the Union regarding the situation in the State and that there is no possible way by which Government can be formed and that Article 356 should be imposed in the State. And hence on the same day President’s Rule was proclaimed in the State.

The gazette dated 19 December 2018, in its clause (b) states that “in exercise of the powers conferred by article 356 of the Constitution, and of all other powers enabling me in that behalf, I hereby proclaim that I declare that the powers of the Legislature of the said State shall be exercisable by or under the authority of Parliament”

In the next clause (c)(i) states that: the following provisions of the Constitution and of the State Constitution is hereby suspended, namely:–– “So much of the first proviso to article 3 of the Constitution as relates to the reference by the President to the Legislature of the State and the second proviso to that article; so much of clause (2) of article 151 of the Constitution as relates to the laying before the Legislature of the State of the report submitted to the Governor by the Comptroller and Auditor-General of India;”

Now all this simply means that from 19 December 2018, the Legislative Assembly of Jammu and Kashmir is the Rajya Sabha of India.

On 5 August 2019, four incidents took place in the Rajya Sabha, which included one order, two resolutions and a bill which was passed after the two resolutions were passed. This bill was later known as the Jammu and Kashmir Reorganization Act of 2019.

The first order was the Constitution (Application To Jammu And Kashmir) Order, 2019. The order shall come into force at once, and shall thereupon supersede the Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time. This one statement abolishes Article 35-A of the Constitution which came into force by the Order of 1954.

Further, All the provisions of the Constitution, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows:

“To article 367, there shall be added the following clause, namely:

“(4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir—

(a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State;

(b) references to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir;

(c) references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers; and

(d) in proviso to clause (3) of article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”

Prior to this notification, Article 367 had three clauses which stated the following-

(1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India

(2) Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be construed as including a reference to an Ordinance made by the President or, to an Ordinance made by a Governor, as the case may be

(3) For the purposes of this Constitution foreign State means any State other than India: Provided that, subject to the provisions of any law made by Parliament, the President may by order declare any State not to be a foreign State for such purposes as may be specified in the order.

The newly inserted sub-section (4) stated the following-

1. Constitution will mean the Constitution of Jammu and Kashmir;
2. Governor of the State for time being shall be the person who has been authorized by the President of India;
3. Jammu and Kashmir government shall mean the Governor of Jammu and Kashmir; and
4. The Legislative Assembly shall be deemed to be the Constituent Assembly for the purpose of Article 370(3).

The first resolution moved by Shri Amit Shah stated that this House recommends the following public notification to be issued by the President of India under Article 370 (3): “In exercise of the powers conferred by Clause (3) of article 370 read with clause (1) of article 370 of the Constitution of India, the President, on the recommendation of the Parliament, is pleased to declare that, as from 5th of August, 2019, all clauses of the said article 370 shall cease to be operative except clause (1) thereof which shall read as under:

“All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, byelaw, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.”

The second part of this resolution states that the President of India has referred the Jammu and Kashmir Reorganisation Bill, 2019 to this House under the proviso to article 3 of the Constitution of India and as this House is vested with the powers of the State Legislature of Jammu and Kashmir, as per proclamation of the President of India dated 19^th December, 2018, this House resolves to express the view to accept the Jammu and Kashmir Reorganisation Bill, 2019.

After these resolutions was passed, there was one last step left in revoking Article 370 and 35-A completely, which was presentation of the Bill, which was the Jammu and Kashmir Reorganisation Bill, 2019.

Some of the important changes brought about by this bill includes:

1. That Jammu and Kashmir have been divided into two union territories, namely, Ladakh and Jammu and Kashmir. Ladakh and Jammu and Kashmir has been made a Union Territory under the provisions of Article 239 and 239-A respectively Ladakh was to become a Union Territory without Legislature where the Lieutenant Governor shall have the control of the state and Jammu and Kashmir was to be a Union Territory with legislature.
2. Four seats of the Council of States shall be for Jammu and Kashmir, and the four existing members shall be deemed to be chosen by the process as prescribed.
3. In the House of People five seats shall be from Jammu and Kashmir and one seat from the territory of Ladakh.
4. Reservations for both Scheduled Caste (SCs) and Scheduled Tribes (STs) is provided in to be provided in the State.
5. The total number of seats in the Legislative Assembly of the Union territory of Jammu and Kashmir to be filled by persons chosen by direct election shall be 107.
6. Total of one hundred and six central laws were made applicable in these territories, as mentioned in Schedule V. These include the Indian Penal Code, Right to Information, Right to Education, The Indian Stamp Act and The Hindu Marriage Act.

The next day, on August 6, the president implemented the resolution and revoked Jammu and Kashmir’s special status through Presidential Order, which stated that, as of August 6, 2019, “all clauses of the said article 370 shall cease to be operative,” and that “All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir.”

AFTERMATH OF REVOCATION

After the constitutional changes and reorganization of the erstwhile State of Jammu-Kashmir, the Union territories of Jammu-Kashmir and Ladakh have been fully integrated into the mainstream of the nation. As a result, all the rights enshrined in the Constitution of India and benefits of all the Central Laws that were being enjoyed by other citizens of the country are now available to the people of Jammu-Kashmir and Ladakh.

Both the Union Territories have witnessed socio-economic changes. Empowerment of people, removal of unjust Laws, bringing in equity and fairness to those discriminated since ages who are now getting their due along with comprehensive development are few of the important changes that are ushering both the new Union Territories towards the path of peace and progress.

With the conduct of elections of Panchayati Raj Institutions such as Panches and Sarpanches, Block Development Councils and District Development Councils, the 3-tier system of grassroot level democracy has now been established in Jammu and Kashmir. Some of the most noticeable changes in the state include the following:

1. Compared to 2019, number of terrorist incidents have reduced by 59% in 2020. The incidents reduced by a further 32% till June 2021.
2. As per a 1990 report, as many as 44,167 Kashmiri Migrant families had fled the Valley since the 1990s, Out of these, the count of registered Hindu migrant families is 39,782. According to the government, 3,841 Kashmiri migrant youths have moved back to Kashmir in recent years and have taken up jobs in various districts under the Prime Minister Rehabilitation Package.
3. A total number of 456 MoUs amounting to Rs 23,152.17 crore have been signed with potential investors since the creation of UT of Jammu and Kashmir. The Centre has approved a new Industrial Development Scheme for Jammu and Kashmir with an outlay of Rs 28,400 crore boost industrial activity while nurturing existing industries as well.
4. The Jammu & Kashmir government decided to issue domicile certificates to the husbands of local women married to people from outside the state. his was a significant move as it allowed them buy land or property in the Union territory or apply for government jobs. By January 2021, a total of 33,80,234 domicile certificates had been issued.
5. The Jammu & Kashmir cadre for All-India Services were merged with the existing cadre of Arunachal Pradesh, Goa, Mizoram and Union Territories (AGMUT). was taken to help tackle the shortage of All-India Services officers in Jammu & Kashmir. As a result, any officer belonging to AGMUT cadre is now eligible to be posted in UT of J&K and UT of Ladakh, and vice-versa.

CONCLUSION

We are a land from where world has received civilization, Sanskrit slokas such as Vasudhaiva Kutumbakam welcomes whole world as a family. However, the British wanted to destroy this family even during their departure from India. The British policy at the time of independence was planned in their benefit. If the Indian leaders would not have taken up the task of integrating the princely states, then India would be a region of 543 different states, fighting for resource, sovereignty, trade, arms and it would have taken another 100 years to see India on the global map.

From the accession of Jammu and Kashmir to India to the introduction and abrogation of Article 370 and 35-A, all these matters have and will stay controversial and disputed. It is an established fact that Jammu and Kashmir belonged to the Indian sub-continent and it was Pakistan who had and still is occupying a section of the state of Jammu and Kashmir (POK). The accession signed by the Maharaja was not under any threat or undue influence of our leaders but it was him who had rightfully decided to accede to India because of the invasion of Pakistani Military forces.

The state of Jammu and Kashmir has been witnessing terrorist attacks from over seven decades. Lashkar-e-Taiba or Lashkar-e—Toiba or “Army of the Pure,” Hizb-ul-Mujahideen, Lashkar-e-Omar, and many such groups have come into the state with a similar ideology of “liberating Jammu and Kashmir from India’s illegal control.” While Pakistan has banned the group and its parent organizations, there is ample evidence that the state has used the group as a proxy against India since the mid-1990s. The abrogation of article 370 and 35-A has given Government of India control a total control over the state and the Government has taken the task of eradicating these terrorist groups from the state and has done a great work on it.

Today the country is facing continuous cross-border threats like, illegal migration, population growth, terrorism and many other threats causing instability in the country. Many a times it has been a sphere of debates that once the border issue with Pakistan is resolved both the countries will develop at an unmatchable pace in India-Pacific Region, but we Indians are against the thought of compromising our territorial sovereignty.

The aim of this paper to bring out the need of unification of India as a whole, what challenges were faced, how many lives were lost for todays peaceful society and what are the problem in the way ahead.