On 5th of August 2019, the President of India promulgated the Constitution (Application to Jammu and Kashmir) Order, 2019. The order effectively abrogates the special status accorded to Jammu and Kashmir under the provision of Article 370 – whereby provisions of the Constitution which were applicable to other states were not applicable to Jammu and Kashmir (J&K). According to the Order, provisions of the Indian Constitution are now applicable in the State. This Order comes into force “at once”, and shall “supersede the Constitution (Application to Jammu and Kashmir) Order, 1954.”
A separate Bill – the Jammu and Kashmir Reorganisation Bill 2019 – was introduced to bifurcate the State into two separate union territories of Jammu and Kashmir (with legislature), and Ladakh (without legislature). Jammu and Kashmir Reservation (Second Amendment) Bill, 2019 was also introduced to extend the reservation for Economically Weaker Sections (EWS) in educational institutions and government jobs in Jammu and Kashmir. Now that both Houses of Parliament have approved the abrogation of Article 370 and 35-A of the Constitution, which had inter alia, a ‘special status’ on the troubled border State of Jammu & Kashmir, it may be time to muse about the future, rather than the hoary past, given to multiple interpretations – some loud and the other, feeble.
Kashmir owes its origin to a legendary rishi (ascetic-scholar) Kashyap, who is credited to have reclaimed it from a huge lake that existed where Kashmir Valley is located today. The land was first called in ancient literature Kashyapmar, which was corrupted to become Kashmir.
Maurya emperor Ashoka had a strong connection with Kashmir. He founded the city of Srinagar and brought Buddhism to Kashmir, which saw a number of ruling dynasties till the middle of fourteenth century. Around this time, a Tibetan Buddhist refugee Rinchana, who later converted to Islam, established first Muslim dynasty in Kashmir. When Akbar became the Mughal emperor, he annexed Kashmir to his empire.
The state of Jammu and Kashmir acquired its modern shape under Ranjit Singh, who established a Sikh confederation and annexed Kashmir from the Mughal Empire in early 19th century. The administration of Jammu and Kashmir was given to a local chieftain from the Dogra community, who expanded it by capturing Ladakh and Baltistan for the Sikh empire.
By this time, the British rule of East India Company was getting stronger in India. The company had successfully challenged the advance of Sikh empire, whose leader Ranjit Singh was forced to sign a Treaty of Amritsar in 1809, which was formalised in 1846 after first Anglo-Sikh war. This treaty decided the fate of Jammu and Kashmir.
The British trader-rulers “sold” the dominion of Jammu and Kashmir to Dogra king Gulab Singh for Rs 75 lakh. The Dogra king ruled over the regions of Jammu, Kashmir Valley, Gilgit-Baltistan and Ladakh. The arrangement continued till 1947, when the British divided the Indian subcontinent into two dominions viz. India and Pakistan.
The Indian Independence Act, 1947, divided British India into India and Pakistan and gave the princely states three options- to remain independent, or to join the Dominion of India or the Dominion of Pakistan. Maharaja Hari Singh, the then ruler of Jammu and Kashmir, appeared to chart out his own way without acceding to India or Pakistan. He signed a standstill treaty with Pakistan, which breached the agreement by invading Jammu and Kashmir in October 1947. On October 26th, 1947 tribesmen from the Northwest Frontier Provinces, supported by Pakistan invaded Jammu and Kashmir and forced Maharaja Hari Singh to seek help from India. India did not intervene till Hari Singh signed the Instrument of Accession with India and sought help from New Delhi.
Hari Singh sought special privileges for his people on the lines of a 1927 law that denied outsiders the right to own property in the state. This law restricted the right to own property in Jammu and Kashmir in line of inheritance only. This had been brought apparently to keep the Britishers away from the salubrious Valley of Kashmir. The Jawaharlal Nehru government agreed to Hari Singh’s condition subject to future final settlement. The matter was placed before the Constituent Assembly of India, which was dealing with the task of framing the Constitution of India. After a lot of deliberation, Article 370 was inserted in the Constitution’s twenty-first part that proclaimed it to be “Temporary, Transitional and Special Provision”. Article 370 provided for a special status to Jammu and Kashmir, which was granted to it through the Presidential Order of 1954.
Article 370 of the Indian Constitution provided that only Articles 1 and 370 itself would apply to J&K. The application of other Articles was to be determined by the President in consultation with the government of the state.
The Constitution Order of 1950 specified the matters on which the Union Parliament would be competent to make laws for J&K, in concurrence with the Instrument of Accession
The Constitution (Application to Jammu and Kashmir) Order, 1954 settled the constitutional relationship of J&K and the Union of India. It made the following provisions –
Article 370 limited the Union Parliament’s power to make laws for J&K to those subjects mentioned in the Instrument of Accession (defense, foreign affairs, and communications) and others as and when declared by the Presidential Orders with the concurrence of the Government of the State. It also specifies the mechanism by which the Article shall cease to be operative. That is, on the recommendation of the Constituent Assembly of the State before the President issues such a notification. However, this provision has been amended by the Constitution (Application to Jammu and Kashmir) Order, 2019.
Moreover, Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it.
Following the outbreak of the Indo-Pakistani War of 1947, India’s Governor General Mountbatten flew to Lahore On 1 November 1947 for a conference with Muhammad Ali Jinnah, proposing that, in all the princely States where the ruler did not accede to a Dominion corresponding to the majority population (which would have included Junagadh, Hyderabad as well Kashmir), the accession should be decided by an `impartial reference to the will of the people’. Jinnah rejected the offer.
The Prime Ministers Jawaharlal Nehru and Liaquat Ali Khan met again in December, where Nehru informed Khan of India’s intention to refer the dispute to the United Nations under article 35 of the UN Charter, which allows the member states to bring to the Security Council attention situations `likely to endanger the maintenance of international peace’
India sought resolution of the issue at the UN Security Council on 1 January 1948. Following the set-up of the United Nations Commission for India and Pakistan (UNCIP), the UN Security Council passed Resolution 47 on 21 April 1948. The measure imposed an immediate cease-fire and called on the Government of Pakistan ‘to secure the withdrawal from the state of Jammu and Kashmir of tribesmen and Pakistani nationals not normally resident therein who have entered the state for the purpose of fighting.’ It also asked Government of India to reduce its forces to minimum strength, after which the circumstances for holding a plebiscite should be put into effect ‘on the question of Accession of the state to India or Pakistan.’ However, it was not until 1 January 1949 that the ceasefire could be put into effect.
The UNCIP made three visits to the subcontinent between 1948 and 1949, trying to find a solution agreeable to both India and Pakistan. It reported to the Security Council in August 1948 that “the presence of troops of Pakistan” inside Kashmir represented a “material change” in the situation. A two-part process was proposed for the withdrawal of forces. In the first part, Pakistan was to withdraw its forces as well as other Pakistani nationals from the state. In the second part, “when the Commission shall have notified the Government of India” that Pakistani withdrawal has been completed, India was to withdraw the bulk of its forces. After both the withdrawals were completed, a plebiscite would be held. The resolution was accepted by India but effectively rejected by Pakistan.
The Indian government considered itself to be under legal possession of Jammu and Kashmir by virtue of the accession of the state. The assistance given by Pakistan to the rebel forces and the Pakhtoon tribes was held to be a hostile act and the further involvement of the Pakistan army was taken to be an invasion of Indian territory. From the Indian perspective, the plebiscite was meant to confirm the accession, which was in all respects already complete, and Pakistan could not aspire to an equal footing with India in the contest.
The Pakistan government held that the state of Jammu and Kashmir had executed a Standstill Agreement with Pakistan which precluded it from entering into agreements with other countries. It also held that the Maharaja had no authority left to execute accession because his people had revolted and he had to flee the capital. It believed that the Azad Kashmir movement as well as the tribal incursions were indigenous and spontaneous, and Pakistan’s assistance to them was not open to criticism.
The Simla Agreement, or Shimla Agreement, was signed between India and Pakistan on 2 July 1972 in Shimla, the capital city of the Indian state of Himachal Pradesh. It followed from the Bangladesh Liberation war in 1971 that led to the independence of Bangladesh, which was earlier known as East Pakistan and was part of the territory of Pakistan. India entered the war as an ally of Bangladesh which transformed the war into an Indo-Pakistani War of 1971. The agreement was ratified by the Parliaments of both the nations in same year.
The agreement was the result of resolve of both the countries to “put an end to the conflict and confrontation that have hitherto marred their relations”. It conceived the steps to be taken for further normalisation of mutual relations and it also laid down the principles that should govern their future relations. The treaty was signed in Simla (also spelt “Shimla”) in India by Zulfiqar Ali Bhutto, the President of Pakistan, and Indira Gandhi, the Prime Minister of India. The agreement also paved the way for diplomatic recognition of Bangladesh by Pakistan. Highlights of the Simla Agreement are:
Recently UN chief Antonio Guterres went back to invoke the Simla Agreement — which states Kashmir is a bilateral matter — after Imran Khan sought help of the international community in dealing with the Kashmir issue.
In July 1988, the Jammu Kashmir Liberation Front (JKLF) began a separatist insurgency for independence of Kashmir from India. The group targeted a Kashmiri Pandit for the first time on 14 September 1989, when they killed Pandit Tika Lal Taploo, an advocate and a prominent leader in Jammu & Kashmir in front of several eyewitnesses. This instilled fear in the Kashmiri Pandit community especially as Taploo’s killers were never caught which also emboldened the terrorists. The Pandits felt that they weren’t safe in the valley and could be targeted any time. The killings of Kashmiri Pandits continued that included many of the prominent ones. This must be seen in the background of Pakistan’s policy of proxy warfare.
On 4 January 1990, a local Urdu newspaper, Aftab, published a press release issued by Hizb-ul-Mujahideen, asking all Pandits to leave the Valley immediately. Another local paper, Al Safa, repeated this expulsion order. Explosive and inflammatory speeches were broadcast from the public address systems frequently. The sense of vulnerabity and insecurity was exacerbated by attacks on prominent Hindu politicians, postings of hit lists with names of specific Pandit individuals and various violent episodes in Srinagar and other places.
In order to undermine his political rival Farooq Abdullah who at that time was the Chief Minister of Jammu and Kashmir, the Minister of Home Affairs Mufti Mohammad Sayeed convinced Prime Minister V.P. Singh to appoint Jagmohan as the governor of the state. Abdullah resented Jagmohan who had been appointed as the governor earlier in April 1984 as well and had recommended Abdullah’s dismissal to Rajiv Gandhi in July 1984. Mufti was convinced that such a move will irritate Abdullah and make him quit. Abdullah had earlier declared that he would resign if Jagmohan was made the Governor. However, the Central government went ahead and appointed him as Governor on 19 January 1990. In response, Abdullah resigned on the same day and Jagmohan suggested the dissolution of the State Assembly. On 21 January 1990, two days after Jagmohan took over as governor, the Gawkadal massacre took place in Srinagar, in which the Indian security forces had opened fire on protesters. These events led to chaos. Lawlessness took over the valley and the crowd with slogans and guns started roaming around the streets. News kept coming of violent incidents and those Pandits who survived the night saved their lives by traveling out of the valley. They still live in refugee camps mostly in Jammu.
Unknown masked men with Kalashnikovs used to force people to reset their time to Pakistan Standard Time. All offices buildings, shops, and establishments were colored green as a sign of Pakistani rule. Shops, factories, temples and homes of Kashmiri Pandits were burned or destroyed. Many Kashmiri Hindu women were kidnapped, raped and murdered, throughout the time of exodus. The militancy in Kashmir had increased after the exodus.
Just as the Pakistani establishment was enjoying the benefits of Prime Minister Imran Khan’s US visit and celebrating Trump’s offer to mediate in the Kashmir dispute, the ground shifted from under its feet.
The carefully structured Afghanistan peace process suddenly doesn’t look as stable because Pakistan does not have the bandwidth to both engage militarily against India and deliver for the United States. If it starts a military adventure, the whole apple cart falls.
An unhinged Pakistan is hardly helpful to President Donald Trump. His accelerated plans to bring US troops home in time for his re-election campaign may fall apart if Pakistan decides to go rogue now.
US diplomatic intervention on Kashmir was one of the demands of Pakistan’s civil-military leadership in exchange for help in the Afghanistan peace process. Trump delivered but his over enthusiasm for a Nobel Peace Prize may have backfired.
India not only pushed back hard, it went further than Khan and his army chief Gen. Qamar Bajwa might have anticipated. As many have said, New Delhi took Trump’s decision to get out of Afghanistan seriously and set in motion a series of decisions to insulate India from the fallout of a Paksitan-Taliban-dominated Afghanistan.
Since Pakistan is now without a strategy to counter India’s move, it will use old tricks – bluster, threats and a dash of nuclear blackmail. Besides one must keep in mind that the “naya” Pakistan reportedly has no space for terrorist groups and terror financing. Besides, Pakistan has promises to keep vis-à-vis the Financial Action Task Force to get off the “grey list.”
If it’s in US interest to protect Pakistan because of the Afghan peace process, it will do so and India should be prepared for that. Still it must irk Pakistan that Sri Lanka and the Maldives have supported India. The United Arab Emirates said India’s decision was aimed at “improving efficiency” and reducing regional disparity. Backing India’s move on Article 370, Russia has asked India and Pakistan to not to allow “aggravation” of the situation in Jammu and Kashmir. France has not said anything substantial thus far. The only country firmly in Islamabad’s corner is China and that’s for obvious reasons – it occupies a part of the J&K and sees its own game getting more complicated.
But it’s good to remember that international understanding does not last forever and it’s imperative that New Delhi begin the healing because in the end real peace will prevail in J&K when there is reconciliation with all the people.