| by Jaipal Singh

( November 1, 2014, New Delhi, Sri Lanka Guardian) Facts of partition of India in August, 1947 have been discussed and debated umpteen times and a lot of fairly accurate and credible information is easily available in public domain. At the time of Independence in 1947, India broadly comprised of two sets of territories i.e. the territories under the direct control of the British Crown, and the territories over which the British had suzerainty but were under the control of their hereditary rulers. In addition, there were some colonial territories under France and Portugal such as Pondicherry and Goa. Based mainly on two-nation theory, the British India was divided into two nations, namely the Dominion of India and the Dominion of Pakistan. With this the suzerainty of British over about 562 Indian princely states also ended which were released from all their subsidiary alliances and other treaty obligations to the British and were left to join either India or Pakistan or remain independent.

Political integration of princely states remained a major challenge and task before the leaders of ruling Indian National Congress and the Government of India which was spearheaded by Sardar Ballabhbhai Patel, Home Minister under Pandit Jawaharlal Nehru led government. Barring three states of Jammu and Kashmir, Junagarh and Hyderabad, all other states had either joined India or Pakistan without offering much resistance. While Hyderabad and Junagarh had a predominantly Hindu population with Muslim rulers, Jammu and Kashmir had a Hindu ruler with Muslim majority population. With initial resistance from the rulers of Hyderabad and Junagarh and acrimony with Pakistan, the two states were finally integrated with India with the persuasion, use of minimum force and sporadic violence. However, the ruler of Jammu and Kashmir, Maharaja Hari Singh delayed his decision perhaps being uncertain about the accession of his state with either of the Dominions.

Kashmir War in 1947

In the mean time, Pakistan, incensed and restless with Maharaja’s uncertainty, dispatched Muslims militia and tribesmen to invade the Kashmir valley with an intent to forcibly occupy and overthrow the Dogra King during October, 1947. As per records, with Maharaja’s forces unable to contain the onslaught, they crossed the state border on 22nd October and within days reached outskirts of Srinagar threatening fall of the capital to the invaders. These developments forced Maharaja to quickly make up his mind and led to the signing of an Instrument of Accession on 25 October, 1947 with the Government of India enabling the latter to dispatch Indian forces to fight invaders and save Kashmir. The Indian and Pakistani armies entered the war at this stage which continued for weeks together until a ceasefire was declared on the night of 1st January, 1948. Apparently, invaders could not be evicted till the onset of the harsh winter and India sought intervention of United Nations Security Council for the resolution of the conflict.

The UN Security Council passed a Resolution No 47 on 21st April 1948 which inter alia provided for the immediate cease-fire of hostilities, the Government of Pakistan to secure the withdrawal from the state of Jammu and Kashmir of all tribesmen and Pakistani nationals who were not resident but entered the state for the purpose of fighting, and the Government of India to reduce its forces to the minimum to keep civil order that should pave the circumstances for holding a plebiscite in the state on the question of accession of the state to India or Pakistan. This of course remained another tangle which could never be resolved and still bleeds Indian nation despite loss of countless lives and property consequent to successive wars with Pakistan, and continuing insurgency and terrorism.

Special Status to Jammu & Kashmir

At the time of partition, the Maharaja of Kashmir was also facing a popular opposition against his rule from Sheikh Abdullah, the leader of the political outfit namely National Conference. In May, 1946, Sheikh Abdullah had launched the Quit Kashmir agitation against the Maharaja, was arrested and sentenced to three years imprisonment. He was, however, released after about one year and four months in September, 1947. By this time, Sheikh was a prominent and popular leader in Kashmir valley who was opposed to its merger with Pakistan and instead favoured its integration with the secular and democratic India. While signing the Instrument of Accession with India, Maharaja simultaneously appointed him as Prime Minister of the State.

It is significant to note that it was not only Maharaja but Sheikh Abdullah too, the leader heading the movement against Maharaja, was not in favour of accession to Pakistan. It is widely believed that Sheikh Abdullah did not support the two-nation theory and the idea of a separate Islamic state. Instead, then he had reaffirmed his faith in Mahatma Gandhi and Jawaharlal Nehru who were proponents of a democratic and secular India. Due to his close proximity with the latter, he insisted and succeeded for a ‘special status’ in the Indian Constitution for Kashmir. Despite opposition from a few prominent leaders, the demand was accepted and Article 370 was added to the Constitution giving Kashmir a special status.

Thus Article 370 owes its birth to the extraordinary and unusual circumstances that led to accession of the Jammu and Kashmir in India. While analyzing the causes and solution of Kashmir problem, apart from the provision of plebiscite while signing the Instrument of Accession, the ceasefire when Indian forces were poised to drive out invaders (it's so believed) from the soil of Kashmir and a reference to United Nations for mediation, the provision of Article 370 too has been a significant reason why the Jammu and Kashmir have not become an unquestionable integral part of the nation so far like the remaining states.

Many people may be unaware about the background and genesis of this Article which was included despite grave reservations of Sardar Patel and many other members of the Constituent Assembly. Reportedly, Article 370 was worked out by Sheikh Abdullah, the then appointed Prime Minister of Jammu & Kashmir and Pandit Jawaharlal Nehru, who kept the Kashmir portfolio with himself. It is now a part of history how Sheikh Abdullah, driven by his secret ambition of heading an independent Kashmir, in later years pressed for a plebiscite and in the process even connived with Pakistan, was put under detention on sedition charges and remained in jail for almost eleven years from 1953 to 1964. As believed by many, Sheikh Abdullah, popularly known as the Lion of Kashmir, was so close to Pandit Nehru from 1938 onwards that when he was arrested by the Maharaja, Nehru volunteered as lawyer for Sheikh and was even detained in June, 1947 by the Maharaja while trying to enter Jammu & Kashmir. Finally, Pandit Nehru had to come in terms with reality by ordering arrest of Sheikh Abdullah for sedition in August, 1953.

It is a widely known fact that the Law Minister BR Ambedkar had refused to draft the proposed legislation for Article 370 and it was then written by N. Gopalswami Ayyangar. Reportedly, at one point of time, Dr Ambedkar told Sheikh Abdullah, "You wish India should protect your borders, she should build roads in your area, she should supply you food grains, and Kashmir should get equal status as India. But Government of India should have only limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal, would be a treacherous thing against the interests of India and I, as the Law Minister of India, will never do it." On the day when this Article came up for discussion, all arguments were reportedly done by Gopalaswami Ayyangar.

Geographic and Demographic Reality

In the rhetoric of Kashmir raised by Pakistan and a handful separatist elements in the valley, people often tend to forget that Jammu & Kashmir, despite decades of Pakistan sponsored coercion and subversive activities and propaganda, is not a uniformly homogeneous land. In support, the author would like to quote some demographic and geographical facts from 2011 census. Of the Jammu and Kashmir state administered by India, the total land area is broadly divided into three divisions; Jammu Division, Kashmir Valley Division and Ladakh Division. Kashmir valley constitutes only about 15.73% landmass while Jammu and Ladakh constitute about 25.94% and 58.33%, respectively. About ethnic population, Kashmir valley has about 97% Muslims (a result of years of persecution of Hindus and other communities) and the remaining 3% are Hindus, Sikhs and Buddhists. In the Jammu Division, about 65% population is Hindu, 31% Muslim and remaining 4% Sikhs and Buddhists. Ladakh has a large district of Leh and a small Kargil of which the former has about 77% Buddhists and the latter 80% Muslim population.

Status of Article 370 under Constitution

Article 370 is provided in Part XXI of the Constitution and refers to temporary, transitional and special provisions in respect to the State of Jammu and Kashmir. The original text of the article is reproduced here:

“370. Temporary provisions with respect to the State of Jammu and Kashmir.-

(1) Notwithstanding anything in this Constitution,-
(a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to-
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
Explanation.-For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March, 1948;
(c) the provisions of article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

While including the Article in Constitution, it was very clearly provided that it is a temporary and transitional provision and it is beyond any logic and rationale that a temporary and transitional provision should continue to exist after lapse of more than six decades.

Clause (1) (a) of the Article provides that provisions of Article 238 of the Constitution of India shall not apply in relation to the State of Jammu and Kashmir. Ironically, Article 238 relating to states had been repealed way back from the Constitution of India through seventh Amendment Act with the reorganization of states in 1956. Despite this fact, the Article continues to find a reference in the text of Article 370.

Dominion of India and Dominion Legislature referred to in Article (1) (b) (i) have since transformed into the Sovereign Social Secular Democratic Republic of India and Houses of Parliament - Lok Sabha and Rajya Sabha, respectively.

The above illustrations are suffice to indicate redundancy of the Article and how it has lost its relevance over a period of time, being purely temporary and transitional in nature. Yet it has been kept alive and a reference for even opening it for a discussion meets with instant opposition from the vested interests creating an explosive situation.

At the same time, Article 370 is a hindrance to the full integration of the State of Jammu and Kashmir into the Indian Republic. According to this article, except for defence, foreign affairs, finance and communications, Indian Parliament needs the state government's concurrence for applying all other laws. Provision in the Article that the Central Government can make laws only with the concurrence of the State government, in effect gives the latter a veto power. All the citizens of India have one citizenship while persons living in Jammu and Kashmir technically have two citizenships. Article 352 and 360 of constitution provide for the declaration of national and financial emergency respectively but the same are not applicable to Jammu and Kashmir. A person who is not a domicile of Jammu and Kashmir, cannot buy property in the state. Article 356 under which President of India can impose his rule in any state, is not enforceable in J&K without the consent of the Governor, ironically who himself is an appointee of the President.

These are a few illustrative and not a comprehensive compilation. In a way, the Article is a constant reminder that Jammu and Kashmir is yet to become integral part of India, giving leverage and opportunity to trouble makers to remind that it is a disputed territory. Article 370 continues to give only special privileges to a small territory and population besides creating a sense of alienation, separatism, secessionism, disintegration in the minds of separatist elements bent upon to destroy the secular and democratic fabric of India.

Certain Myths and Realities

Ever since the accession of Jammu and Kashmir to India with special status under Article 370 because the then prevailing political circumstances, the issue has been widely contested between India and Pakistan. Respective parties of dispute are interpreting and reproducing basic facts according to their convenience. Continued abuse of facts has resulted in creation of several myths regarded by many as facts. Myths and realities about some of the more important ones are given here.

Kashmir is Jammu and Kashmir: This could be cited as a basic distortion because nationally and internationally, many people ascribe the issues of Kashmir and Muslim population for the entire Jammu and Kashmir. Some deliberately do it and perhaps other do it for the convenience but it does send wrong signals and impressions among minds. The reality is that the State of Jammu and Kashmir comprises of several regions and Kashmir is just one and the smallest division of the entire state. Jammu and Kashmir as princely state comprised of Jammu, Kashmir, Northern Areas including Trans-Karakorum region, Ladakh and Aksai Chin. Major regions as per present administrative control are as under:

Jammu & Kashmir (India administered) – Jammu, Kashmir Valley and Ladakh Divisions
Pakistan Occupied Kashmir (PoK) including Gilgit-Baltistan
Chinese Occupied Aksai Chin (part of Ladakh) and Trans-KarakorumTract (northern part of territory ceded by Pakistan)

The total area of Jammu Kashmir as at the time of independence was about 222,336 Sq.Km. Pakistan Occupied an area of about 83,294 Sq. Kms. (37.4%) in 1947, out of which it ceded 5180 Sq. Km to China in 1963. China forcibly occupied an area of about 37,555 Sq. Km. (16.8% ) in 1962 Indo-China war. Thus total area under illegal occupation of Pakistan and China comes to about 120,849 Sq. Km. (54.37%).

Of the remaining about 101,487 Sq. Km. (45.63%) as present state of Jammu and Kashmir with India, Ladakh Division comprises of 59,241 Sq.Kms. (58.33% of presentt state and 26.65% of original state), Jammu Division 26,293 Sq. Km. (25.93% of present state and 11.83% of actual state), Kashmir division 15,853 Sq. Km. (15.73% of present state and 7.13% of original state). Thus Kashmir with predominantly Muslim population is actually only about 15.73% of the state under the administrative control of India and just a small part of the State of Jammu and Kashmir.

Accession versus Merger: It is argued in legal or technical terms by many that though Jammu and Kashmir was acceded to India but it never really merged with the Indian Union. The reality is that the Instrument deed of Jammu and Kashmir signed with the Dominion of India was same as in case of other princely states. The authorized legal signatory (i.e. Maharaja of Kashmir) signed the same Instrument of Accession as in case hundreds of other rulers of the princely states. This accession was legally done under the Indian Independence Act, 1947 of the British Parliament with subsequent acceptance by the Governor General as per procedure in vogue.

There was nothing like Instrument of Merger in vogue and none of the other princely states was required to formally merge with the Indian dominion. It happened later that some of the smaller native states were merged together to form more viable administrative unit in the independent India, without having any bearing on the sovereignty and integrity of the country. Jammu and Kashmir was already a large and administratively viable state with no need of merger with any other territory.

Two-Nation Theory in Jammu and Kashmir: Pakistan wanted accession of Jammu and Kashmir in her favour on the plea of the two-nation theory with Muslim majority in the state. The reality is that two-nation theory was applicable to British India and not relevant to the princely states. Time has proved that, ab initio, the theory was on wrong premise and has completely failed over a period of time.
Despite partition based on religious considerations, secular India continues to have almost as much of Muslim population as in Pakistan. There are urban pockets like Moradabad, Malegaon and Bhiwandi in India in a range of 0.5 to 1 million people with a huge or even in majority Muslim population. Then there are several smaller cities / towns with Muslim majority, and India cannot afford to continue to succumb to such demands based on a faulty and failed theory. In the State of Jammu and Kashmir itself, Jammu region has Hindu majority population, Kashmir valley is predominantly Muslim and Ladakh (Leh) has Buddhist majority, and together they remain an integral part of the Secular and Democratic India.

Plebiscite - Right of Self Determination: Pakistan continues to insist on plebiscite in Kashmir even today under the aegis of United Nations to give people the right of self determination. It accuses India of denying Kashmiri people their right, violating UN resolution(s) on Kashmir and holds the Instrument of Accession as illegal. The reality is contrary to what Pakistani propaganda says. The Instrument of Accession signed between Maharaja of Kashmir and the Government of India was a legally valid instrument without any reference or provision of plebiscite. It was the UN Security Council resolution on 21st April 1948 which provided for holding a plebiscite in the state on the question of accession of the state to India or Pakistan. inter alia providing for the cease-fire of hostilities, the Government of Pakistan to secure the withdrawal from the state of Jammu and Kashmir of all tribesmen and Pakistani nationals who were not resident but entered the state for the purpose of fighting, and the Government of India to reduce its forces to the minimum to create favourable atmosphere for the said plebiscite.

It may be remembered that the Instrument of Accession was a legally tenable agreement between the Maharaja of Kashmir and the Government of India under which Jammu and Kashmir was integrated with the Dominion of India. Hence even to hold a plebiscite, it was a pre-requisite that Pakistan should have first vacated the occupied territory with all militia and tribesmen earlier illegally entered into the state. It was then for the Government of India to hold a plebiscite in the presence of UN observers with minimum Indian forces deployed to maintain law and order. However, Pakistan, instead of withdrawal from the territory, continued its rhetoric for simultaneous and total withdrawal of Indian forces. This was neither intended in the UN resolution nor was acceptable to India considering Pakistan’s tricky and treacherous past. Consequently, the UN resolution remained unimplemented.

During the past six decades, the demographic and geological realities have changed on the either side of the Line of Control in Jammu and Kashmir. While the social, political and economic changes in Indian administered Jammu and Kashmir have helped in development and complete integration of the state with rest of the India, the Pakistan occupied Kashmir continues to remain as deprived and underdeveloped without even basic human rights. In the above backdrop, the question of the said plebiscite has become totally irrelevant despite Pakistan raising the issue time and again in United Nations and other international forums to score a point.

Separatist movement in Kashmir: Pakistan indulges in a proactive propaganda and disinformation, nationally and internationally, branding insurgents and terrorists as freedom fighters. According to them, the Kashmiri insurgency indicates the people of Kashmir do not wish to remain within India, meaning thereby that either Kashmir would want to stay with Pakistan or independent. Even some independent / western sources too tend to believe this theory in the past.

The reality is that Pakistan military and ISI are actively engaged in exporting insurgency and terrorism in the Indian territory across the border, particularly from the Pak Occupied Kashmir by providing Muslim youth from various countries with training, ammunition, financial and doctrinal assistance. It is also true that some poor, unemployed and fanatic Kashmiri Muslim youth too fall prey and have also been misled to join these coercive and subversive activities to give it the colour of freedom struggle. Besides a minority segment of pro-Pakistan separatist leaders and their supporters too are active in the valley.

While insurgents / terrorists get massive cowart support from the military and ISI, the separatist leaders get overt political and moral support for their movement from the Government of Pakistan. During the past 25 years or so, thousands of innocent civilians including women and children along with the security personnel as also terrorists have been killed in (Estimated 43,650 deaths; source - SATP) and property destroyed in Jammu and Kashmir. The recent peace talks between the foreign secretaries of India and Pakistan in August, 2014 after a hiatus of almost two years was cancelled by India, after Pakistan, despite a clear warning, chose to hold consultation with separatist leaders just before the scheduled meeting.

During the recent years, USA and most Western policy-making and intelligence circles have also started believing role of Pakistan as a significant force behind the Islamic radicalism and extremism in Kashmir. As back as in April 2001, the US State Department in their report on Patterns of Global Terrorism had identified Pakistan as the chief sponsor of militant groups fighting in the disputed Indo-Pakistani region. There are several outfits sponsoring terrorism in Kashmir, the most notorious being Jaise-e-Mohammad, Lashkar-e-Tayyiba and Hizb-ul-Mujahideen and Harakat-ul-Mujahideen. Pakistani assistance to Kashmiri insurgents covers the ambit of training, logistical (including ammunition), financial and doctrinal support.

It may be remembered that, historically, freedom fighters have fought against political and security establishment world over; they are not known to indiscriminately slaughter innocent civilians (segregating on religion), women and children. Having dissenting voice and seeking more autonomy within constitutional limits is not wrong or unusual while respecting the sovereignty and integrity of a nation like India with such a diversity of religion, caste, creed, language and region. However, when such a movement becomes violent and anti-national, and is sponsored and abetted by elements from outside the national borders like in Kashmir, it should be dealt with iron hands, effectively and ruthlessly.