Kashmir: Integration and a failed effort to normalisation

Having established the history and the events that transpired in Kashmir, both during its time as a Princely State under the British Raj, and also during the time of its accession, this article intends to bridge history with the present. No, this is not a boring explanation of each provision of various legislation including Article 370 and 35(a), or even anything close to a legal study of this topic. Instead, this shall be a “myth busting” episode of sorts where I intend to give you, the reader, a brief, and yet a clear understanding of the topic before one can proceed to further exploration.

Sheikh Abdullah, having now ascended to the role of the “Head of the Emergency Administration”, essentially played the role of Kashmir’s Head of State in all further negotiations with India. In June 1949, Sheikh Abdullah, Nehru and Patel met in Delhi and agreed to admit four representatives from Kashmir into the Indian Constituent Assembly. Known as the Delhi Understanding (not to be confused with the Delhi Agreement), the discussion played an integral role in shaping Kashmir’s relationship with the Indian Government. This meeting can perhaps be regarded as the origin to the special status bestowed upon Kashmir.

Why the special status for Kashmir?

While the terms of the Instrument of Accession signed by the Kashmiri Maharaja were the exact same as those signed by the rulers of other Princely States, Nehru’s declaration in support of a referendum/ plebiscite to be held, snowballed with the subsequent UN Security Council resolutions, along with the Delhi Understanding and the arguments made by the Kashmiri representatives in the Constituent Assembly debates can be termed as the major factors for the state’s special status in independent India. It must be noted that Jammu and Kashmir was not the only state with such special provisions, but also areas of the North-East including current day Nagaland (because of the secessionist claims made by the Nagas).

Simply put, given the fragile nature of certain territories including Kashmir and regions of the North-East, certain special provisions were bestowed upon those regions including increased autonomy provided to the state administration in case of Jammu and Kashmir in the form of Article 370 and 35(a).

The Indian Constituent Assembly, now with four representatives from Kashmir including Sheikh Abdullah himself, drafted Article 306(a) in the draft Constitution, later renamed to Article 370 on the Constitution’s adoption. Note that this was an Article adopted with the consensus of the entire Assembly.

What is Article 370?

While not indulging in the debate on the ambiguity of this Article and the questions concerning the legal interpretation of various terms in it, this Article can be best termed as the Article that defined India’s relationship with Jammu and Kashmir. It outlines the matters on which the Indian Government would have the say and matters on which the state Government of Kashmir would have a say. It essentially defines the degree of autonomy provided to the state within the Indian Union.

Subsequently, the Jammu and Kashmir Constituent Assembly came into being in 1951 which was tasked with drafting a constitution for the state.

Why a separate constitution for the state?

The simple answer to this question is that a separate constitution was negotiated for by Sheikh Abdullah given the degree of autonomy that Kashmir enjoyed. The text of the Jammu and Kashmir Constitution (1956) states,

We, the people of the State of Jammu and Kashmir, having solemnly resolved, in pursuance of accession of this State to India………define the existing relationship of the State with the Union of India as an Integral part……

Hence, regardless of the degree of autonomy that Jammu and Kashmir(J&K) enjoyed under the provisions of both Article 370 and 35(a), it was to still remain an “integral” part of India, hence leaving no room in any of the legislation for a demand of secession.

Simply put, the question of “why a separate constitution?” is irrelevant as it is the Indian government and the Indian Constitution that decides the degree of autonomy given to the state.

Hari Singh stepped down from the throne and his son, Karan Singh was made the Head of State in 1952. The Delhi Agreement which was reached in the same year, established how the Government of India would coordinate with the J&K Government while giving further clarity on the unique mandate and autonomy that the state government would enjoy.

Karan Singh, being the Head of State, in 1953 dissolved Abdullah’s government and jailed him under the orders of the Indian Government, probably due to allegations of Abdullah coordinating with Pakistan.

In 1954, a Presidential order was issued which detailed the application of various provisions of the Indian Constitution on the state of Jammu and Kashmir. This included the addition of Art. 35(a) to the Indian Constitution.

What is Article 35(A)?

This Article gave the state Government the power to decide on who would be a “Permanent resident” of the state. A Permanent resident would have certain “special rights and privileges” including the sole right to own property, receiveemployment, scholarship and settlement under the state government. The most controversial aspect of the Article is a provision which strips the permanent resident status of any woman who marries a non permanent resident. Note that this does not apply to Kashmiri men marrying non-permanent residents.

The Article hence is argued to be fundamentally discriminatory in nature while a debate still continues on the constitutionality of its amending into the constitution by a presidential order.

The Jammu and Kashmir Constitution came into force on 26 November 1956. Karan Singh’s title was altered to “Sadar-e-Riyasat” (Similar to the role of a Governor of a state, the symbolic head of that state).

Abdullah now in jail, the congress party ruled Kashmir for the next 2 decades. Kashmir being a volatile state, throughout its existence as a political entity was no different post the coming into force of the 1956 constitution. Secessionist claims were made by separatist groups throughout the 60s, and 70s. The 80s saw an influx of extremist activity post the Soviet-Afghan war as more tribesmen, many being descendants of the same tribesmen who violated Kashmir’s modesty in the 1947 war, came back to the state with US supplied ammunition. The subsequent years were certainly those of continued destruction of peace in the “happy valley”.

While the legalities, correctness and other nuances of the 2019 government order to essentially repeal 370 and 35(a) are beyond the scope of this discussion, I urge the reader to utilise the historical knowledge that he/she has inculcated from these articles as a lens to view the much discussed nuances of Article 370 and 35(a) and their abrogation. Having researched to some detail the Kashmir issue, I have now come to understand that history is truly relevant to understand current day polity.

I shall hence end on a note that any form of legal interpretation cannot be void of the historical backdrop to that specific legislation. A pure grammatical reading and interpretation of a law or any legality is reading a phrase for what it is not. Only when we know history, can we assess the law for what it is and also attempt to understand the intent behind the drafting of it.