What all you need to know about Kashmir & Article 370

This article shall have a) Introduction with the context and relevance of Abrogation of Article 370

 b) Understanding  Kashmir in chronological order of events and c) Answering a few basic and general questions 

1.  What went wrong with Jammu and Kashmir? Could it be handled in a different way 

2.  Why India didn’t quell out the tribes backed by Pakistan from the occupied Kashmir 

3. Why has the international community supported Pakistan more than India in the UN
4. What is the opinion of Ambedkar, the then Law Minister; Nehru, PrimeMinister 

5.  What are the claims of the union government in support of abrogation of article 370 

6.  What is presumed to be the actual case- by critics 

7.  Is it right for a Parliament to pass the bill ignoring the J&K state legislative assembly 

The union government on August 5, 2019, has ended the special status for Jammu and Kashmir provided under article 370. The autonomous  State is replaced with 2 union territories, Jammu and Kashmir with legislative assembly and Ladakh without one. This will come into force from 31 October.

In this digital age of social media, we tend to get bits and pieces of information on Kashmir and Article 370. We may get the gist of the context thus not being in a position to make an informed decision. We need to know the whole part of history. My attempt in this article is to present this part of the history in a whole lot of chronological order of events wherein we can understand what happened, what were the viewpoints of different eminent personalities, who has done what, why the incidents has taken such a shape and so on.

Understanding Kashmir in chronological order of events

1911 -  Raja Hari Singh ascended the throne of the princely state Kashmir 

1911 to 1947  -  The insecurity of Raja Hari Singh against outsiders (Britishers) settling in Kashmir coupled with Pandit agitations resulted in bringing  ‘subject Laws’ wherein no outsider shall be allowed to purchase land in the state of Kashmir 

1947 Indian independence 

1947 2nd October-  “Tribal invasion of Kashmir”. Pashtun tribesmen of the north Kashmir backed by Pakistani army invaded the state of Jammu and Kashmir 

1947 26th October -  to save Kashmir from armed tribes backed by Pakistani army, Maharaja Hari Singh signed the Instrument of Accession by which J&K was made part of the Indian union. 

Indian Armed Forces were deployed in Kashmir and could stop the tribesmen from further invading the Kashmir. This took the shape of war between India and Pakistan

India meanwhile appointed Sheikh Abdulla as the caretaker of the interim administrative government.

1948 1st January - To sort this out, India on the advice of Lord Mountbatten decided to take the issue to the UN. The submissions of the two counties in the UN were,

India-  insisted on the withdrawal of Pakistan backed tribesmen and Pakistan army and conduct the plebiscite

Pakistan - Insisted on the plebiscite under the Imperial interim administration but not Sheikh Abdullah

British supported Pakistan position on this 

1949 26th November -  Article 370 was inducted into the Indian constitution. The  details of the article and the necessity of inducting it in the  Indian constitution, we shall deal it  in the latter part

1949 - UNMOGIP( United Nations Military Observer Group in India and Pakistan) was set up by the United Nations to monitor the military activities along the line of control

1950  -  UN Security Council asked both countries to withdraw their armies from the state.  This could not materialize because India asked Pakistan to withdraw its troops and Pakistan demanded that the National conference government in Jammu and Kashmir be removed as it believes that the Shiekh Abdullah  interim government is appointed by the Indian government and is no less than a puppet 

1951 Elections were held to the Kashmir constituent assembly. All 75 seats were won by Sheikh Abdullah‘s National Conference.

Shaikh Abdullah has decided to join the Kashmir into the Indian union. As it is a representative democratic government, this decision has legitimized the Kashmir joining the Indian union

A body from these elected representatives was entrusted to formulate the Constitution of J&K.

1952 Delhi agreement (between Sheikh Abdullah and Nehru). 

The features of this agreement are,

-  Kashmiris will become citizens of India 

- Jammu and Kashmir  will have greater autonomy than any other state of India

- People outside Jammu and Kashmir were prohibited to buy land or property within it

-  Delhi will not send forces to handle internal disturbances without the consent of Srinagar 

-  all residuary powers of the Indian constitution which otherwise rest in the center will be under Jammu and Kashmir State 

Presidential order of 1952 - Abolished Monarchy

On the recommendation of the Jammu and Kashmir constituent assembly, the President of India has issued orders through which Article 370 is amended by abolishing the monarchy.

Subsequently, Sader-e-Riyasat (Governor) has become a titular head from the real head of the government.

1953 -  Government of India suspended Sheikh Abdullah on charges of ‘Kashmir Conspiracy’ where he is believed to be colluded with Pakistan in making Kashmir independent state/conduct plebiscite.  He was also jailed against these charges 

Presidential order of 1954 

It is a comprehensive order to implement Delhi agreement, 1952 through legal status.

Article 35A was added to the Indian constitution

1957 The Constituent Assembly (CA) after drafting the constitution for Jammu and Kashmir has approved it.  The CA has also disbanded itself as the task of preparing the Constitution was complete 

1957 26th January the Constitution of Jammu and Kashmir came into force.  

Unique from the rest of the states in India Jammu and Kashmir state has its own constitution apart from its own flag. J&K has two flags and two constitutions.

Call for  plebiscite in the 1960s led by Muslim united front, sheik Abdullah 

1972 Simla Agreement
The crux of which was to put an end to conflict and confrontation between India and Pakistan and take steps to normalize mutual relations.

1974 Indira Abdullah accord 

Sheik Abdulla dropped his demand for a plebiscite in exchange for the establishment of the autonomy of J&K and assurance of self-rule by a democratically elected government. In subsequent elections, he was elected as the Chief Minister.

1989 agitation by ladakhi Buddhists on the demand for conferring union territory status to Ladakh.

As a result of this 2 autonomous Hill councils,  Leh and Ladakh were created

1989 Operation Tupac
Marked the start of the cross border terrorism/Militancy in Kashmir which is still in operation.

The 1990s - the forced exodus of Kashmiri pandits from the valley 

After understanding the historical background of Jammu and Kashmir now let’s look into some general questions surrounding it 

1. What went wrong with Jammu and Kashmir? Though the Kashmir was one among the 565 princely states that integrated with India after 1947 why and how was it different?

The social and cultural organization of Kashmir lies in its heterogeneity, multi-ethnic, multi-religious and multilingual nature. Its population consists of Dogras, Kashmiri Pandits, Kashmiri Muslims, Gujjars, Bakkarwals, Ladakhi Buddhists

Strategically, Kashmir is a Muslim majority (53% at the time of partition) state with a Hindu ruler; shares borders with Pakistan, China, and Afghanistan.

After partition, both India and Pakistan were hell-bent on acceding the princely states. Pakistan wanted to take full advantage of the confusion, indecisiveness, and aspiration of the princely states of Hyderabad, Junagadh, and Kashmir.  Hyderabad was acceded by Police Action and Junagadh was acceded into India by plebiscite.  'This made Pakistan desperate to take control of Kashmir at any cost. Sensing the situation tilting towards Indian union, Pakistan has backed the armed tribesmen to invade Kashmir. India retaliated and could stop the invasion after Raja Hari Singh acceded Kashmir into the union of India.

The view or the idea of India in 1947 was far different from what it is today. Kashmir was a princely state and was not part of India from an administrative point of view. After the British left India, princely states were left with a choice to join either India or Pakistan or remain independent. If we start our understanding of Kashmir from here we get to know why the Indian leadership took the decision which now is a history.
Government of India from 1947 onward has taken a series of decisions like,

Article 370 

Super autonomous status to J&K

Article 35A

These were only to gain the confidence of the people of Jammu and Kashmir. Here we should remember that though the accession was completed technically, the majority of the Kashmiri people where Muslims and that could've been taken as an advantage by Pakistan. Thus the above decisions were all taken as part of building confidence in the people of Kashmir.

The main reason why the Kashmir problem is lingering even until today is the disputed area, Pakistan occupied Kashmir (POK). When India could stop the tribal invasion and could take back certain areas from them, the natural question comes up as to why we could not quell or sent the tribesmen and Pakistani army back and reclaim the whole territory of Kashmir?

With the onslaught of winter in 1947 November, there was a gap in the mutiny operation from both sides ((Indian troops started fighting back Pakistani tribes from October 1947).  In this gap of three months, Pakistan has created ‘Azad Kashmir Army’ whose members were from that region and were familiar with the tough terrain. 

Indian Army halted its forward movement from Kargil, Drass in the north and Poonch in the West because, given the tough terrain we needed massive air support and extra troops,  which seems to be in limited availability.
Citing these technical reasons the British general in command of the Indian Army is believed to have stopped the troops from going into northern Kashmir 

On a political front Syama Prasad Mookharji, in a letter to Nehru asked as to "How is India going to get this territory”. He hinted on many fronts to wage a war. 

In response, Nehru thought that they were trying to decide a very difficult and complicated constitutional question by methods of war.

To bring this logjam to an end and avoid military casualties, Governor-general Mountbatten has advised India to go to the UN and resolve the issue.  But unfortunately, things didn’t found to be in favor of India. Why was it so?

Pakistan’s representatives' ability - subject knowledge, oratory skills, have outweighed the Indian representatives and they were successful in convincing the UN in their favor.

The United States and the United Kingdom given the strategic location of Pakistan on one side, Indian foreign policy being a bit closer to Russia on the other, thought supporting Pakistan will work in their interest

Nehru in this regard has observed, UN decision on Kashmir was taken by the political organization strategists but not by the impartial arbitrators

Could the Kashmir issue have been handled in a different way by the then leaders?

 If we see history from this date and have a comparative study of how other princely states where annexed and had smooth integration into the union of India we somehow feel that Kashmir could have been handled differently at least after the signing of the instrument of accession.  To be precise the extra autonomy given to Kashmir was unwarranted. Here the words of Dr.Syama Prasad Mukherjee, founder of Jan Sangh, the precursor of BJP, is worth a mention,

"... two National Flags showed the divided loyalty unacceptable in a sovereign country  

“Even if the valley (a Muslim majority area) wanted a limited accession, Jammu and Ladakh must be allowed to integrate fully“But a better solution still would be to make the whole state a part of India without any special concessions. This would bring it on par with all the other princely states which despite earlier promises made to them as regards to autonomy had finally agreed to be subject to the provisions of the Constitution in toto 

“Abdullah himself had been a member of the Indian Constitute Assembly yet he’s asking for special treatment. Did he not agree to accept the constitution in relation to the rest of India including 497 princely states. If it is good enough for all of them why should it not be good enough for him in Kashmir”

Dr.Amedkar as the law minister has spoken in the Parliament

Mr Abdullah you want that India should defend Kashmir, you wish India should protect your borders, she should build roads in your area, she should supply your food grains and Kashmir should get equal status as India but you don’t want India and any citizen of India to have any kind of rights in Kashmir and government of India should have only limited powers. To give consent to this proposal would be a treacherous thing against the interest of India and I as the law minister of India will never do. I cannot betray the interests of my country

On these precise lines that the present Indian government has abrogated Article 370.
But at first place why was (Article 370) it introduced?

 Article 370 was a joint decision of Sardar Patel, Gopal Swami Ayyangar, Sheikh Abdullah, Jawaharlal Nehru and other members of the cabinet, for the following purpose 

1. Balance the demand of Jammu to integrate with India on one side and Kashmir for autonomy on the other.

2. Induce confidence in the people of Kashmir.

3. Provide legality to the instrument of Accession between Raja Hari Singh & Union of India

Article 370 provides for the special Powers for the state of Jammu & Kashmir.  

A. The power of Parliament to make laws for the state shall be limited to certain subjects and in regard to other subjects, it requires the consent, concurrence of the J&K Constituent Assembly.

B. According to 370, any law made by the Parliament should be in accordance (limited) to the areas listed in the Instrument of Accession signed by the Union of India and Raja Hari Singh.

C. It also mentions that the president can continue this article or repeal it only on the recommendation of the Constituent Assembly of J&K. 

Later in 1954 through the Presidential order, Article 35A was added to the Indian constitution which provides for,
The power to decide the 'Permanent Residents' was given to the State Legislature of J&K. These Permanent Residents shall have special rights viz, purchase land and immovable property, caste vote and contest elections and seeking government employment. Non-permanent residents, even if Indian citizens were not entitled to these special rights.

The necessity of 35A is,

 Political movements in 20th century, for instance, Pandit community agitations “Kashmir for the Kashmiris” demanding only Kashmiri should be employed in state government jobs Coupled with Maharaja Hari Singh’s insecurity against the Britishers settling down in the valley has built a tradition and internal law against outsiders buying land thereby setting down there. 

Nehru statement in Lok Sabha regarding this reflects the same, “For a long time passed the Maharaja time, there had been laws there preventing any outsider that is any person from outside Kashmir from acquiring or holding land in Kashmir 

“Maharaja was very much afraid of a large number of Englishmen coming and settling down there 

“So the present government is very anxious to preserve that right”

The present NDA Government differs with this view  not only in theory but also has put forward the practical situation in Kashmir claiming it to be the impediment of,

Peace

Decentralization of power down to panchayats 

Rampant  political corruption

Equality

Amit Shah, the Union Home Minister in the Parliament mentioned that many laws made by Parliament Like below mentioned were not brought into action in Jammu and Kashmir because of the special provisions of article 370,

Child marriage Act 

Minorities act 

Right to Education 

National Council of Teachers Education 

land Acquisition Disability Act 

Maintenance of Parents and Senior citizens Act Delimitation Act 

Whistleblower protection act 

National Commission for Safai Karamchari 

Political Reservation for SCs and STs

Let’s now see from the critics' point of view as to what presumes to be the actual situation.

Peace 

Richa Kumar one of the 3 interlocutors appointed by the Centre in 2010 opined
'it’s not clear how changing the status from a state to Union Territory would help in maintaining the security since under article 370 it is anyway a central subject' 

Development 

Facts and figures in regard to the development can be seen in the following picture which clearly contradicts the claim of the government 

Sector	Indicator	J&K	India	Best States	Worst States
Health	Infant Mortality Rate (2017) Deaths under 1/1000 Births	23	33	1.Kerala        (10) 2.Tamil Nadu (16) 3.Delhi          (16)	1.MP    (47) 2.Assam (44) 3. Odisha (41)
	Life Expectancy (2012-2016) in Years	73.5	68.7	1. Kerala (75.1) 2. Delhi   (74.2) 3. J&K     (73.5)	1. UP      (64.8) 2.Chattisgarh (65.2) 3. MP     (65.4)
Education	Literacy Rate (2011) in %	67.2	73	1.Kerala      (94) 2.Delhi        (86.2) 3.Himachal (82.8)	1.Bihar  (61.8) 2.Arunachal(65.4) 3.Rajasthan (66.1)
	Graduates & above as % of Population	5.2	5.6	1.Delhi             (16.4) 2.Uttarakhand (9) 3.Maharashtra (7.7)	1.Bihar  (2.9) 2.Assam (3.2) 3.Jharkhand (4)
Gender	Total Fertility Rate (2017) Avg Children per Woman	1.6	2.2	1.Delhi (1.5) 2.J&K; Punjab; TN; WB; AP; Himachal (1.6)	1.UP (3.2) 2.Chattisgarh (3) 3.MP  (2.7)
	Sex Ratio at Birth (2017)	917	896	1Chattisgarh (961) 2.Kerala   (948) 3.WB       (939)	1.Haryana (833) 2.Uttarakhand(841) 3.WB   (939)
Economy	Per Capita GSDP (2016-17) in Rs.	1.02L	1.17L	1.Delhi     (2.87L) 2.Haryana  (1.98L) 3.Maharashtra (1.87L)	1.Bihar (40,832) 2.UP  (57,024) 3.Jharkhand        (69,692)
	GSDP Growth Rate  in %	5.5	8.2	1.Gujarath (9.8) 2.Delhi    (8.4) 3.MP      (8.3)	1.WB   (4.8) 2. Jharkhand (5.2) 3.J&K   (5.5)
	Poverty Ratio (2011-12) % BPL	10.4	21.9	1.Kerala    (7.1) 2.Himachal (8.1) 3.Punjab   (8.3)	1. Jharkhand (37) 2.Bihar   (33.7) 3.Odisha    (32.6)
	Unemployment (2017-18) in %	5.3	6.1	1.Chattisgarh (3.3) 2.AP      (4.5) 3.MP    (4.5)	1.Kerala  (11.4) 2.Delhi     (9.7) 3.Haryana (8.6)

Source: Times Of India

The most developed states in India are those which have a strong democracy in action, a strong Federal set up with the least interference from the center. Even in Jammu and Kashmir in the beginning years under the then, sheik Abdullah administration brought in some of the best land reforms in India. Even in the time of years between 2009-2014 saw the least.........

On the other hand, J&K has suffered in the period when Centre’s influence was very frequent in the times of Indira Gandhi who tried to increase her presence in the backdrop of  Farooq Abdullah son of Sheikh Abdullah standing in the opposition to her at the center.

Corruption

According to Transparency International, Jammu & Kashmir is not amongst the most corrupt states.

Decentralization of power 

With a downgrade of Jammu and Kashmir from a state to the UT, The union government with its action has contradicted its claim of weak decentralized power in the state.

The step has also made the representative democracy weak in the state as in one union territory there is no legislative assembly with no directed representation of the people and in the other, there is an assembly with limited powers meaning Limited representation of the People 

Is it right for a Parliament to pass the bill ignoring the state legislative assembly of Jammu and Kashmir?

Critics say it’s not a majority in the Parliament but majoritarianism as the will of the people of Jammu and Kashmir is not represented with only a handful of MPs participated in the discussion and that too has opposed the bill.

Supreme Court has said that article 370 can’t be removed without the consent from legislative assembly.  

In 2015 the High Court of Jammu and Kashmir ruled that Article 370 cannot be abrogated, repealed or even amended

Critics of the bill also find that it is a strong blow to the federal set up which is the basic principle of the Indian Constitution 

Conclusion

The international community this time has, stating that it is a bilateral issue of the two countries and they both have to sort it out, in a way supported India. It is a blow to Pakistan which made all efforts to make it an international issue.
Within the country, the Supreme Court of India has opined to give some time to the government. On the clampdown on J&K cutting all the communication channels, detaining the key leaders of the state, the Supreme Court said abrogation of Article 370 is a drastic step and it requires some drastic measures as well to keep the law and order in control. So let's wait and give some more time to the government.
Given the situation of the clampdown, curtailing all the basic rights of the citizens of J&K government of India has to take all necessary steps to bring it to the normal state of affairs. Otherwise, the grim situation can be taken as an advantage by the ISI and terrorists making this landslide decision of abrogating Article 370 a remedy worse than the disease.