The Kashmir Conundrum

‘Gar firdaus bar-rue zamin ast, hami asto, hamin asto, hami ast’

(If there is a heaven on earth, it’s here, it’s here, it’s here) – Emperor Jahangir

Emperor Jahangir, the fourth Mughal Emperor, penned down the infamous quote, defining his love for Kashmir. The physical attributes and the very picturesque sceneries of the place wholly justify the inherent love that every person has for the state. However, it breaks the heart to voice out that, this love is limited. It is confined and bracketed somewhere between the snow-capped mountains and Kashmiri Pulao. But why is it so? Why have we been so ignorant, rather insensitive when it comes to Kashmiris and their share of hardships? Why have we narrowed down Kashmir to just a shiny tiara on our country’s map and nothing more?

History has never been kind to Kashmir, or for any other borderline state for that matter. Be it the dispute between West Bengal and Bangladesh, or the whole Dravidian analogy down the south, every state has its own story of the inception and finding its course along the time. However, the Kashmir issue is perhaps the most prominent and crucial issues this country has faced since it attained its sovereignty. The fuelling up of the army, the visually appealing glass of gruesome Indian politics, or the mere dance of the world media, hovering around this subject, is what makes, Kashmir, a state of thankless and miserable legacy. Although certain advancements have been made by eminent government regimes of India and Pakistan to resolve this convoluted issue, the 5th day of August 2019 marked the ‘historic’ abrogation of Article 370 and revoked the special status given to the state of Kashmir by the Modi-led BJP government.

Kashmir now remains an open-air prison, leaving people with absolutely no control over their lives. The listless markets, the terrors of horror and a sense of anxiousness on a fellow-Kashmiris face, speaks volumes about an uncertain future and looming demographic change. The prolonged curfew with absolutely no scope of communication and the internet for a long time possibly conceals some valuable opinions of people residing in the very state. While the move led by the union was already self-declared as ‘Chanakya-neeti’ or a calculated bold move, the Judiciary, on the other hand, struck down the petitions asking for Judicial Review and asked the people to wait for the dust settle to get a clear picture of the whole paradigm.

Well, it has been more than half-a-year since the decision was made and the people residing in Kashmir, still somehow managed to exist!

History

The British Raj had exploited the country and its resources for two long centuries. From Robert Clive winning the Battle of Plassey in 1757 to Lord Louis Mountbatten announced the partition of India and Pakistan on June 3, the country did not have much of a glorious past to remember and reminisce.

Since the partition and creation of new states: The dominions of Pakistan and India, the British paramountcy over the 562 Indian princely states ended. The formation of the new successor states was accepted by the Muslim League and eventually by the Indian National Congress. This political agreement was further cemented in law as the British parliament amended the Government of India Act of 1935 and enacted the Indian Independence Act 1947. The states were free and left to choose whether to join India or Pakistan or to remain independent.

Jammu and Kashmir were the largest of the princely states, had a predominantly Muslim population, ruled by the Hindu Maharaja Hari Singh. The ruler decided to stay independent as he expected that the Muslim population would be unhappy with accession to India, and the Hindus and Sikhs would become more vulnerable if he joined Pakistan.[1] Maharaja Hari Singh, although had a subconscious bent towards accession to India. This was indicated when Maharaja dismissed his Prime Minister, Ram Chandra Kak, who advocated for independence.[2] On the other hand, Pakistan upon getting to know this shocking revelation decided to pre-empt this possibility by wrestling Kashmir with force. 

Pakistan made several efforts in creating internal unrest amongst the public of Kashmir. The Muslim league even encouraged the local Muslims to an armed revolt. The superior authorities in Pakistan occupied Punjab, obstructed the supply of fuel and essential commodities, indicating a ‘private war’ in commencement. Jammu was caught up in crossfires in Partition violence and a large number of Hindus and Sikhs from Rawalpindi and Sialkot started arriving in the territory bringing painful stories of Muslim atrocities along with them[3]. This provoked counter-violence against the residing Muslims that further developed into a widespread ‘massacre’ of Muslims. The massacre leads to a large number of Muslims being killed and the others fleeing to the parts of West Pakistan.

The Issue

Like the rest of the accession of princely states, Jammu and Kashmir’s accession was also done on three matters namely as Defence, Foreign Affairs and communications. The sovereign princely states were invited to send their representatives to India’s Constituent Assembly, which was formulating a constitution for the whole of India. While many of the states accepted the proposal to be streamlined with India and its uniform constitution proposal, representatives of Jammu and Kashmir requested that the constitutional provisions should only enshrine the provisions in the initial instrument of Accession. The rest of the matters would be decided by the state’s constituent assembly.

The government of India accepted the demands of the representatives and as a result, Article 370 was incorporated in Indian Constitution stating that powers given to the Central Government can only be applied to Jammu and Kashmir, only with the permission of the State’s Constituent Assembly.[4] If the Union or the Centre wanted to talk about the matters other than the Instrument of Accession, the centre shall need the consent of the state to do so.

Article 370 was a compromise. It was almost similar to a quid-pro-quo settlement, in which the king agreed to accede itself to India, in return of getting powers to formulate a special constitution, similar to the Instrument of Accession signed by the King. It intended to be a temporary and transitional provision until the constitution of Kashmir was drafted and ratified from the State’s Constituent Assembly. To his utter disbelief and dismay, the State’s Constituent Assembly dissolved itself on 25 Jan 1957, without clarifying its stand on Article 370, as to whether the ‘temporary provision’ should persist or be abrogated. Therefore, the Article was considered to have become a permanent feature of the Indian Constitution.

Lately, the political discourse in the country equates the Kashmir issue with Article 370, being it the only obstruction in the path of peace and prosperity in the valleys of Kashmir. So the natural discourse which sets of its part is the basic idea of striking the article down. The mere act of abrogating the preferential treatment seems synonymous to growing investment, better living standards and no scope of terrorism among the people of Kashmir. However, as stated above, the genesis of the Kashmir issue is much wider, multi-layered, and the solution of it does not lie in abrogating or upholding Article 370.

The Move Made by The Government on August 5, 2019

We are a country, which enshrines and embodies the concept of rule of law. The author has no reason to doubt what the government has been doing and it strictly hopes that it serves the best for the country. But, a thorough evaluation of the constitutional process needs to be examined. With the abrogation Article 370, three things have essentially happened.

Firstly, the order of 1954 has been replaced by the 2019 order, applying the entire Indian Constitution to the State. Secondly, the state has been broken down into two Union Territories out of which, one has a legislature and the other deprived of it. Lastly, a substitution for a body that can recommend to the President to declare Article 370 inoperative. This all happened at a time when there is a Presidential Rule.

The presidential rule is an emergency provision and is devised when there is a breakdown of the constitutional machinery, as a temporary arrangement. During Presidential rule, the President replaces the centre, and the Governor, who in this case, was a New Delhi’s appointee, exercises the power of the state government. Briefly, if taken bird’s eye perspective, the officials at New Delhi sought permission from a New Delhi’s appointee to apply the entire Constitution to the State.

Article 3 of the Indian Constitution enables the Parliament to alter, change the boundaries, names etc. of any state. However, there is a non-binding provision in the very article to take view of the state. Now since the provision is non-binding in nature, the parliament may not bother about giving it special undivided heed. However, in the case of J&K, a special provision was added in the 1954 order stating that if the parliament would want to alter or change the boundaries of the state, it shall seek consent from the State Assembly.

Assuming that the constitution is valid on the State and Article 3 stands solid on its ground, the parliament must acknowledge the views of the state. Now since Article 356 was under proclamation, the state assembly is replaced by the parliament. This brings us back to the hysterical act of seeking one’s views to dismember the state. Therefore, what the government did was, to consult the parliament where it already has the majority and taking a yes from itself. We may not be a federal Constitution but have a unitary Constitution either.

Briefly – New Delhi has defined the constitutional relationship between India and the state and not vice-versa. The Instrument of Accession, Article 370, Supreme Court decisions (preferably the Prem Nath Kaul judgement of 1959), all has depicted that it is only the state that can define the constitutional relationship and not vice-versa.

What has Changed in Jammu And Kashmir Now?

Article 370 is quite irrelevant if seen in contemporary times. The centre had all the powers it wanted qua the state. Usually, if there is a law, which is discriminatory, incompetent, or inefficient, it could be struck down. It does not justify making the Article itself inoperative. The basic mechanism is to challenge the law, not to get rid of the Article. An accession is an act of state as it binds everybody. An organ of the Indian State cannot reopen the terms of accession.[5]

The state acceded unconditionally to India in three areas and ancillary matters. While the centre gave a nod to the above request, it did not hold itself there. Rather, it went to the United Nations and brought out the world community to comment on the happenings of the state. Ours is the only country in the history to have approached United Nations saying that there is an aggression on our territory, and come back with the promise to have the plebiscite to see whether it is even part of our territory.

It is the actions of ‘New Delhi’ that has made Kashmir a disputed territory. We may gloat about it as an integral part of India, with all the slangs, phrases and frequent Bollywood movie shootings, but it does not change the truth that it is till date marked as a disputed piece of land. It is because we have had our share of doubts on our title to the state by a provisional acceptance of accession, internationalising it and then deeming ourselves as helpless and following a territorial status policy.

The ‘Kashmir Conundrum’ is not Article 370, focusing on the part of territory we can control; The ‘Kashmir Conundrum’ is getting back our territory along with our citizens and accepting them as our very own. We need to get rid of the ‘disputed territory’ tag on J&K. Unless that happens, nothing will ever restore peace and development.

We need to address the feeling of injustice, which is there in the state. We brag about the special status given to Jammu and Kashmir, but isn’t it the other way round? J&K was a sovereign country and they gave us some powers regarding control and administration. Indian Constitution was anyway applicable to the state. However, is it enough to confine Kashmir issue only to Article 370?

The author hopes that the government is right when it says that it will help the nation in curbing down the violence and upholding the free spirits of Kashmiris and the beautiful land, once defined as the human paradise.                                                                                  `


[1] Raghavan, Srinath “Pandit Ramchandra Kak: The Forgotten Premier of Kashmir, Epilogue, Epilogue (April 2010)

[2] Raghavan, War and Peace in Modern India 2010; p – 109

[3] Chattha, Partition and its Aftermath, 2009; pp- 179-180

[4] Noorani, Article 370 (2011); p-4

[5] Dr Aman Hingorani, The Indian Express Explained, September 2019

Hamza Jamal from JIMS JEMTEC School of Law, Greater Noida

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