Kashmir remained a vexed issue, ever since India attained freedom in 1947. Indian Independence Act, passed in the British Parliament in 1947, provided that provinces and territories, which were directly under control of British Indian government, as on 14/15 August, 1947, would be divided into two separate Dominions, viz. India and Pakistan, based on the areas, having demographic supremacy of the Hindus and the Muslims. But, besides these areas, there were nearly, 650 princely states, which were nominally dependent on British Indian Government. The aforesaid Act provided that these States could join either any of these two Dominions, depending on geographical congruity, or become independent and could govern themselves.
After independence, nearly 565 princely states,joined the Indian Dominion. Hyderabad and Junagadh, which were Hindu majority states but ruled by Muslims, initially had some hesitations. But, later, they joined India. Jammu and Kashmir, situated at the extreme mountainous North of India, and having borders with both India and Pakistan, was a Muslim dominated state, but was ruled by a Hindu Dogra ruler. Maharaja Hari Singh, the ruler of Jammu and Kashmir, was reluctant to join either side and preferred to maintain independence. While, for India this was acceptable, for Pakistan, which had just been formed by curving out a land for Muslims armed with two-nation theory, based on religion, it was hard to digest the situation.
In fact, while demanding a separate state, only for the Muslims, Kashmir was very much in their agenda. In January 1940, Md. Ali Jinnah advocated the idea of Pakistan (originally named Pakstan meaning ‘sacred land’), comprising of Punjab, North West Frontier Province or Afghan territories, Kashmir, Sind and Baluchistan (Pakstan stands for P-Punjab, A-Afghan territories, K-Kashmir, Stan – denoting end letters of Baluchistan), in a sovereign state. So, Kashmir’s refusal to join the new Muslim dominated Dominion was just not acceptable to the new Jinnah, the new Governor General of Pakistan.
On 24 October 1947, just within a little over two months after the new State was born, Kashmir was attacked by Pakhtun tribals, being encouraged by Pakistan. They made big advances and the Maharaja’s army was ill-equipped to prevent it. Actually, they were Pakistani regulars, mixed with the tribals who were leading the battle. The Maharaja sought Indian military assistance, and as a condition precedent, on 26 October, 1947, signed an ‘Instrument of Accession’ to India.
The Indian army proceeded to Kashmir valley and within a few days, recovered a large area which had gone under the Pakistani occupation. This Accession was fully supported by Sheikh Abdullah, leader of Jammu and Kashmir National Conference (now National Conference), a popular party of the mountain kingdom. At this point, the then Prime Minister, Jawaharlal Nehru made the first mistake. He agreed to hold a plebiscite, i.e., a kind of referendum, in this State, after congenial atmosphere was restored, to ascertain the will of the people of Jammu and Kashmir. This was not demanded in the Instrument of Accession. However, at a later stage, as the situation was never brought to normal by Pakistan by withdrawing its troops from Occupied Territories, as advised by the UN Commission, which intervened at the request of India, the matter was dropped by the Indian Government.
Indian Army made significant advances in the Kashmir valley and was almost at a point of restoring back the whole of the occupied territory when Nehru made the second blunder, which was more serious than the previous one. He made an appeal to the Security Council in December 1947, to ‘call upon Pakistan (a member State) to put an end immediately, to the giving of such assistance, which is an act of aggression against India’.
By doing so, India acknowledged, Pakistan’s presence in Jammu and Kashmir, and, both ‘de facto’ and ‘de jure’ recognized Pakistan as a party to the issue of Kashmir. Apart from that, the issue which was, to all intent and purposes, an internal disturbance within Indian territory, which required to be sorted out by Indian forces (as Pakistan, at this point of time, didn’t officially acknowledge it’s military’s presence in Kashmir valley), was internationalized, while, except the then Soviet Union, there were none among the five permanent members of the Security Council who were friendly to India.
After five months of futile efforts to mediate peace between two States, Security Council, sent a Commission, which, on 13 August 1948, proposed a ‘Cease Fire Agreement’ between the disputing countries. While India immediately accepted Cease Fire proposal, and implemented it, Pakistan attached several conditions and was reluctant to sign the Agreement. It however, acknowledge it’s Military’s presence in Kashmir. By declaring Cease Fire unilaterally, India lost the opportunity to restore whole of Kashmir Valley, including Gilgit and Baltistan, which continue to remain under Pakistan occupation till now. However, Pakistan finally signed Cease Fire Agreement, on 1 January, 1949.
Pakistan’s ill-intentioned and ill- conceived efforts to seek a military solution to Kashmir issue continued. It attacked India in 1965, 1971 and 1999 (Kargil war). Each time it faced an ignominious defeat at the hands of Indian forces. In 1971, it lost its Eastern wing, East Pakistan which emerged as an independent nation Bangladesh.
Art 370 was incorporated in Indian Constitution as a ‘Temporary, Transitional and Special’ provision. Through a Presidential Order in 1954, it specified, in consultation with Constituent Assembly of Jammu and Kashmir, that the Articles of Indian Constitution that applied to the State. It’s this Clause which allowed Jammu and Kashmir a very special status within the Indian Union, in as much as it could have its own Constitution, own flag and separate set of rules for governance including civil and criminal laws. It also allowed to call its executive head as Prime Minister (This was changed to Chief Minister in 1966). Art 370(3) provided for abrogation of this Article in consultation with the Constituent Assembly of the State which was set up in 1951.
Art 35A was issued under a Presidential Order issued on 14 May, 1954 (The Constitution, applicable to Jammu and Kashmir, Order, 1954). It empowered the State to define ‘permanent residents’ of the State and also provided special rights and privileges to the permanent residents. These privileges included, a) ability to purchase land and immovable properties in the State, b) ability to vote and contest elections, c) seeking Govt employment d) eligibility to receive health care, education and other benefits.
Non-permanent residents of the State, even if they were Indian citizens, were not entitled to these benefits. Permanent residents have been defined in the Jammu and Kashmir as those who, as on the date of 14 May, 1954, are State subjects or, who have been residing in the State for 10 years and ‘had lawfully acquired immovable property in the State’.
The Constituent Assembly ratified accession to Indian Union in Feb, 1952. The Constitution, in Nov, 1956, legalized the status of Jammu and Kashmir as a state of the Indian Union. It was dissolved on 26 September, 1957.
As the Constituent Assembly did not pass a resolution about the abrogation of Art 370, an impression was built up in Jammu and Kashmir that this provision had, ‘ipso facto’ become permanent despite its being Temporary, Transitional and Special provision. This, in turn, helped to grow a belief that it was indeed an independent state. This false sense of being independent was fueled by the separatist organization, Hurriyat Conference by spreading a lie that residents of Jammu and Kashmir enjoyed dual citizenship status. However, Supreme Court firmly negated this notion and said that Jammu and Kashmir residents enjoyed only one citizenship i.e., Indian citizenship.
The queer definition of permanent residents, however, made Indian citizens living in Jammu and Kashmir second grade citizens being denied all reasonable benefits like purchase of property etc. despite being in the State for a long time. Even a Kashmiri girl marrying an Indian citizen would have lost her inheritance rights. Whereas, Kashmiri girls marrying Pakistani citizens could, not only retain their rights but also their spouses were entitled to get ‘permanent resident ‘status!
All these anomalies and restrictions were incongruous to the concept of Indian Union as an integrated, sovereign political identity in which all the States are entitled to equal opportunities and share equal responsibilities. But, Jawaharlal Nehru to all successor Prime Ministers before Narendra Modi never considered it necessary or expedient to annul the provisions or 370 and 35A from the Statute Book. Rather, they allowed the indulgence of a section of political class and media in India to picture it as a symbol of India’s secular credential.
These political parties and personalities being supported by the Lutyens’s media, unleashed a relentless campaign that, Jammu and Kashmir being a ‘Muslim’ majority State, was entitled to special, inalienable status granted under Art 370. They forgot that such a skewed perception only betrays the concept of secularism as, secularism, does not favour any religious community.
Even though the larger political community was in favour of continuation of this position there were however, dissenting voices too. Dr Shyamaprasad Mukherjee, founder leader of Jana sangha present incarnation of which is the current ruling party of the country, raised a strong voice of protest against such an absurd system of ‘Do vidhan, do nishan and do pradhan’. He led a march in protest against this anomalous arrangement to Kashmir. He was arrested by Sheikh Abdulla, then the ‘Prime Minister’ of Jammu and Kashmir and kept in a dingy, scantily lighted cell where he died of mysterious circumstances.
Bhartiya Jana sangha and since 1981, Bhartiya Janata Party or, BJP continued to make abolition of Art 370 as a poll promise in the election manifestos in all General elections. But, earlier, whenever they were in power, once in 1977 and then from 1999 to 2004 and, 2014 to 2018, they could not proceed with the fulfilment of the promise as the political combinations they led were not conducive to do so.
After coming to power for the second time in 2019 with a massive majority in Lok Sabha and being confident of mastering the required support in the Rajya Sabha, they proceeded with the fulfilment of a long pending poll promise, the annulment of Art 370 and 35A. They developed a strong consensus among their partners in NDA Government as also a wide spectrum of political parties across the country. Except the Congress who were the architects of this absurdity, other parties which expectedly took a different line, there were CPI( M) and TMC and of course, the J&K parties like NC and PDP who have enjoyed unfettered freedom to loot the State for so long, taking advantage of this Article.]
The stage was set for Prime Minister, Narendra Modi with the able and active support of his Home Minister, Amit Shah to usher in a new dawn for Jammu and Kashmir that will witness a total integration with India that was so long prevented by vested elites of the State and their cohort elsewhere in the country.
On 5 August, President of India issued the Constitution (Application to Jammu and Kashmir) Order, 2019 in pursuance of Article 370(1) of the Constitution of India. This Order stipulated that “with the concurrence of the Government of the State of Jammu and Kashmir, the provisions of the Constitution as amended from time to time, shall apply in relation to Jammu and Kashmir.” The Order also stipulates that it will “supersede the Constitution (Application to Jammu and Kashmir) Order, 1954”, thus effectively abrogating Art 35A as well.
On the same day, the Upper House of Parliament i.e., Rajya Sabha passed a statutory resolution recommending that President of India abrogate most of the provisions of Art 370 pursuant to Art 370(3).
On 6 August, 2019, the President “implemented and revoked Jammu and Kashmir ‘s special status through Presidential Order, CO273. It stated that, as of 6 August, 2019, “all clauses of the said Article 370 shall cease to be operative,” and that, “all provisions of the Constitution, as amended from time to time, without any modifications or exceptions, shall apply to State of Jammu and Kashmir.” Both Houses of Parliament also, at the same time, passed a Bill titled Jammu and Kashmir Reorganization Act, 2019. The Bill received the President’s assent on 9 August, 2019. Under this Act, Jammu and Kashmir has been reorganized into two Union Territories. One includes Kashmir Valley and Jammu region and the other entire Ladakh. The first one has a legislature while the second one will be without a legislature.
These legislations effectively drew the curtain on the obnoxious diarchy in the State of Jammu and Kashmir and corrected a historic blunder committed by the first Prime Minister, Jawaharlal Nehru. Integration of whole of India from the Himalayan north to the Indian Ocean washed South is now complete. This also dispelled once and for all, the pernicious propaganda that Art 370 was inviolable and permanent and any attempt to alter the status quo would result in bloodbath and mayhem across the State which would also permeate to the whole country.
The transition from the erstwhile status of the State of Jammu and Kashmir to the present one was smooth and without any hiccups. It was effected from 31 October, 2019. Not a drop of blood was shed nor there was a single casualty from police bullets. After some months of administrative precautionary measures, the valley and rest of the State have come to old normal.
A new era of peace and prosperity has begun in both the Union Territories after a long spell of turmoil, lawlessness and bloodshed. The governments of both the UT’s have started functioning. A new domicile policy has been announced by which all the residents who have been staying in the State for the last 15 years will be entitled to domicile status. The students studying in Jammu and Kashmir continuously for the last 7 years, will be eligible for domicile status. Once domicile status is granted, they will be eligible for all benefits including purchase of land and immovable property. All Indian laws including reservation facilities to education and employment will be available to domiciled citizens. Kashmir is shining. Kashmir is smiling. So, is whole of India in the glory of national spirit which binds the entire people from north to south. Prophets of doom have failed. The Sun is shining more brightly on the snowy mountain peaks of the Valley than ever before.