KASHMIR – THE BLEEDING HEART OF INDIAN DEMOCRACY!

Kashmir has always enjoyed a special status in India. Under Article 370 and 35 A of the Indian Constitution the centre may only make laws for Defense, External Affairs, Communications and ancillary matters. The rest of the Constitution and other laws will not apply to Jammu & Kashmir (J&K) unless so agreed by the State legislature. On 5^th August 2019 the Modi Government has introduced the Jammu and Kashmir (Reorganisation) Act, 2019 whereby since the State Assembly has been suspended since 2018, the centre acted in its behalf. The whole of the Constitution has been made applicable to J&K. J&K has itself been reduced to two union territories. One Ladhakh where there will be no assembly and J&K where there will be an assembly with powers to legislate as other states except for police and law and order. There has been a lot in the press recently about Kashmir and Article 370. Even more on the social media. It is astonishing as to how much of this is plain false. Some times propaganda and sometimes just idiotic tweets. To set the record straight, here is the factual history and situation with references.

Kashmir has known human habitation since the neolithic period as can be evidenced by the archaeological digs at Burzahom, Gufkral and Kanispur.¹ However, it is the history of the region rather than its prehistory which excites much comment today.

There are references galore in unreliable sources about how Kashmir is referred to in the Mahabharata etc. It is said to have been ruled by the Kamboj kings. However there is no historical record of any such Kings having existed much less of them having ruled Kashmir. Be that as it may, what is known is that Kashmir from prehistory to history had a close affinity to those who ruled in the areas that are today known as Persia and Afghanistan. The Rajtarangini is clearly a history of Kashmir written in Sanskrit by Kalahana in the 13^th Century. However, many of its more remote references cannot be believed and it transfers to history from myth as it approaches the 12^th and 13^th Centuries.²

Many parts of Kashmir were ruled by different kings and dynasties. In around 1320 CE it is generally accepted, Zulju came and defeated Sahadeva of the Lohara dynasty and became ruler of Kashmir. There is a lot of uncertainty about where he came from but was most likely a descendant of the Chagatays from Central Asia (descended from Changiz Khan). It is also unlikely that he was a Muslim.³ After Zulju, Rinchan who was a tibetan buddhist from Ladhak and who had been a minister under Sahadeva, became the King of Kashmir, He converted to Islam and is often called the first muslim king of Kashmir. Why he took to Islam has many stories associated with it. Some say he tried to convert to Hinduism first but was refused by the Brahmins. In any case, we can safely assume that there must have been a large number of muslims already in Kashmir for him to have made this conversion almost immediately after becoming a king. After Rinchan, his minister, Shah Mir ruled as did his descendants from the Shah Miri dynasty till 1561.

From 1320 till 1561 the Shah Mir dynasty ruled Kashmir. The islamisation of Kashmir was more or less complete at this time, what with such tyrannical rulers like Sikander Shah or Sikander Butshikan (Sikander the idol-breaker) who forced many to convert to Islam. In 1561, Kashmir was conquered by Akbar who added it to the Kabul subah. Later, under Jehangir, it was made into a separate subah itself. Mughal rule continued till the beginning of the 17^th Century when it was run over by the Sikhs in around 1819. However, the Sikhs in turn, lost it to the English in the Anglo-Sikh war in 1846. It is said that Gulab Singh of Jammu was a subsidiary of the Sikhs. However, he kept out of the war till the end when he came out as a mediator of the British. In appreciation – and at the price of Rs.7500000 (Rupees Seventy Five Lakhs) – the British sold Kashmir to Gulab Singh.

Jammu and Kashmir thus presented a very complicated picture at the time of independence. When partition was finally agreed to, the princely states in what was to become India and Pakistan were given the right to either accede to one of these or to remain independent. This right was granted to them under the Indian Independence Act, 1947⁴. There were many princely states which almost took positions which were not acceptable to their people – like Jodhpur, Baluchistan and Travancore. These questions were solved and the states acceded to Pakistan or India.

However, Kashmir presented a totally different question Whereas the majority of the population was cleary Muslim in this state, the ruler was a Hindu,Maharaja Hari Singh. He was of the mind to continue Kashmir as an independent entity. This position continued till October 1947. On around 24^th October 1947, armed tribesmen from the North went on the rampage, taking over rule into their own hands. They were threatening to overrun the whole of the state of J&K when the Maharaja of Kashmir called upon the Indian Government to come to his aid and signed the instrument of accession on 26^th October 1947.

There has been a lot of talk that the instrument of accession only allowed for 4 topics (Defence, External affairs, Communication and Ancillary subjects) be left to the dominion legislature for making laws. However, this was the same as the instrument of accession signed by all other princes and princesses. All were encouraged to form their own constituent assemblies and some of them did⁵. It was in May 1949 that the states met the leaders of the Indian Constituent Assembly and agreed that they did not need any separate constitutions and that the Indian Constitution would suffice. This is also when the representatives of J&K to the constituent assembly asked that their state be treated differently. But we are getting ahead of the story.

On 26^th October Maharaja Hari Singh signed the instrument of accession. The instrument of accession signed by him was the same as that signed by more than 550 different princely states in India. All of them provided that the Central Indian legislature could only legislate on Defence, External Affairs, Communication and ancillary matters. All of them had a clause that the acceding royal did not have to accept the Indian constitution which would eventually be passed. This is the basis of the argument of those who say that Kashmir is an integral part of India.

The difference between Kashmir and other princely states lies in other factors. It is clear that the Indian authorities had accepted that there would have to be a plebiscite in Kashmir where the people would have to be given a chance to decide whether to stay in India or to go with Pakistan or stay independent. Though the instrument of accession does not mention any such assurance, nor was there any separate instrument at that time assuring the Maharaja of any such plebiscite, this promise of a plebiscite can be accepted as a basis for the accession from the surrounding circumstances.

The Indian side had always made it clear that the only correct method would be to accept the will of the people of Kashmir. This had to be so as the Indian leadership of that time had clearly accepted the concept of “self-determination”. Though the instrument of accession did not mention anything about determining the will of the Kashmiri people, the letter of Mountbatten, written as the Governor General of India, immediately after accepting the accession of Kashmir said, “it is my Government’s wish that, as soon as law and order have been restored in Kashmir and its soil cleared of the invader, the question of Kashmir’s accession should be settled with reference to the people”⁶ Nehru had repeated this assurance many times. On 25^th October 1947, Nehru wrote to the Prime Minister of Pakistan, Liaqat Ali Khan, by telegram, “I should like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India. Our view which we have repeatedly made public is that the question of accession in any disputed territory or State must be decided in accordance with the wishes of people and we adhere to this view.”⁷ The same telegram was repeated to Clement Atlee, the Prime Minister of UK. On 28^th October 1947 after Indian troops had entered Srinagar by air on 27^th, Nehru sent a telegram to Liaqat Ail Khan, “I would welcome an early opportunity of meeting you and discussing various problems that have arisen, more specially developments in Kashmir about which I have informed you. I earnestly hope that there will be cooperation between Pakistan and India in stopping raids and putting down disorder and then leaving choice about future to people of Kashmir. I am glad to learn that you are likely to visit Delhi for Joint Defence Council meeting soon.”⁸ There are many instances where Nehru reiterated that though Indian troops entered Kashmir in October 1947, this was only to help Kashmir to defend itself and the future of Kashmir would only be decided by the will of the people of Kashmir. For instance, his broadcast to the nation on All India Radio on 2^nd November 1947. Nor was this only Nehru. As shown earlier, Mountbatten writing on behalf of the Government as the Governor General had stated that the people of Kashmir would be allowed to choose whether to remain with India immediately after accepting the accession of the Maharaja. Even before the accession, Gandhi visited Maharaja Hari Singh on 2^nd August and had issued a statement from Wah (a place in West Punjab in Pakistan) on 6^th August. Gandhiji’s statement indicated that the will of the Kashmiris was the supreme law in Jammu and Kashmir and that the Maharaja and Maharani agreed with him.⁹ Gandhi wrote to the Nehru and Patel that the leaders of the National Conference were “..most sanguine that the result of the free vote of the people, whether on the adult franchise or on the existing register, would be in favour of Kashmir joining the [Indian] Union provided of course that Sheikh Abdullah and his co-prisoners were released...”¹⁰

The best proof that India wanted a plebiscite to be held was that on 1^st January 1948, it was India which moved the UN to hold a plebiscite. India complained to the UN Security Council under Artilce 35 under which a state could bring to the notice of the UN any situation which might threaten internationa peace. The Indian compaint stated that Pakistan was aiding armed incursion into Kashmir and India had therefore sent troops there. It stated in the complaint that as soon as normalcy was restored, it would want a plebiscite or referendum to be held to determine the will of the people.¹¹ Pakistan responded by refuting the allegations and suggesting that India had staged the accession of Kashmir in a fraudulent manner and that there was presently a genocide against muslims and aggression against Junagadh. On 20^th January the Security Council passed a resolution constituting a three member commission to investigate the complaint and try to resolve the dispute. There followed a period of intense campaigning and discussion. Not only between India, Pakistan and the UN but also with the State Government of Kashmir (led by Sheikh Abdullah), the administration of Azad Kashmir (led by Ghulam Abbas) and other countries taking part. For instance it was the Canadian delegation which first suggested that a third option of independence for Kashmir be a part of the plebiscite. There were also attempts to get an agreement for independence for Kashmir with guarantees from Indian and Pakistan. A plan was also put forward that areas like Poonch, Gilgit and Mirpur would go to Pakistan while the rest would remain with India. However, none of these options could get the required concensus.

In March 1948, China (then the Republic of China and not the People’s Republic of China) put forward a resolution in two parts. Firstly Pakistan was to persuade the tribesmen and its nationals to leave Kashmir, secondly conditions for a plebiscite were to be created which included withdrawal of Indian troops and appointment of a plebiscite adminsitrator and thirdly the state government was to be reformed to represent all political groups. After much discussion, this finally resulted in UN resolution 47. The gist of the resolution finally accepted :.

1. Pakistan was asked to use its "best endeavours" to secure the withdrawal of all tribesmen and Pakistani nationals, putting an end to the fighting in the state.

2. After the commission is convinced that point 1 is being put into force, India was asked to "progressively reduce" its forces to the minimum level required for keeping law and order. It laid down principles that India should follow in administering law and order in consultation with the Commission, using local personnel as far as possible.

3. India was asked to ensure that all the major political parties were invited to participate in the state government at the ministerial level, essentially forming a coalition cabinet. India should then appoint a Plebiscite Administrator nominated by the United Nations, who would have a range of powers including powers to deal with the two countries and ensure a free and impartial plebiscite. Measures were to be taken to ensure the return of refugees, the release of all political prisoners, and for political freedom.¹²

Both India and Pakistan rejected this resolution. The Indian objections had to do with the fact that the Plebiscite administrator was to be given too wide powers (including appointing special magistrates), that the Muslim Conference (the opposition in Kashmir) and the Azad Kashmir representatives were to be chosen by themselves, that Indian troops were required to withdraw totally not even being retained for defence, etc. It also felt that asking for the return of all refugees was not realistic. Pakistan’s main objections were that there must be equal representation for Azad Kashmir and the Muslim Conference in the Government as the National Conference and it did not want even the minimum Indian forces retained in Kashmir as allowed by the resolution. Both however welcomed the UN Commission called the UNCIP (United Nations Commission on Indian and Pakistan). One important result however was the acceptance of ceasefire and the demarcation of a ceasefire line.

The UNCIP tried to make make both India and Pakistan agree to the terms of a plebiscite. A plebiscite administrator was appointed in Admiral Chester Nimitz of the USA. The main stumbling block was the demilitarising of Kashmir. The UN appointed a Military Observers Group for India and Pakistan (UNMOGIP), to try and demilitarise, which still exists.¹³ However, though both parties accepted the solution, they had different interpretations of if. Especially the portion where India was to withdraw the “bule of its forces”. Also India had concerns about the Azad forces which in the period of negotiations had grown into an army of 32 batallions. To sum up in the words of Josef Korbel the Czech chairman of the commission, “Accordingly, the Commission did not see any other way out of the impasse than to propose an arbitration of differences. Pakistan accepted, India refused. The Commission’s report to the Security Counci was quite critical of India’s attitude.”¹⁴¹⁵

Since the commission could not achieve its aims, in December 1949 the UN appointed Gen. McNaughton, the Canadian President of the Security Council to informally mediate. He put forward a plan for demilitarising the area. Pakistan agreed but India did not. The UNCIP was succeeded by Sir Owen Dixon, an Australian jurist¹⁶ Dixon tried different approaches. He said if demilitarisation be not possible then it might be possible to take portions to he apportioned to India and Pakistan (like large parts of Jammu to India and Poonch, Gilgit and Mirpur to Pakistan) leaving the plebiscite only for the valley. This was also not accepted. He was succeeded by Dr. Frank Graham of the United States as the UN Mediator. Graham continued to try to mediate a solution till March 1953. At that point he reported that the differences between India and Pakistan (over how to demilitarise Kashmir, who should hold power in the meantime and how the plebiscite should be conducted) had been narrowed down and they should now discuss on their own. In 1953, therefore, from 17^th to 20^th August¹⁷, Prime Ministers Nehru and Liaqat Ali met in New Delhi and finally issued a joint communique. The communique stated that though there remained many preliminary questions to be thrashed out, all such questions would be thrashed out and a Plebiscite Administrator would be appointed by the end of April 1954.¹⁸

Without putting too fine a point on this, it can be seen that till 1954 the Indian stand was clearly that the Indian army had entered Kashmir only in response to the invasion by the tribesmen and that they intended to decide the actual fate of Kashmir by a plebiscite. The instrument of accession was only seen as a legal document to justify the entry of Indian forces in Kashmir. India therefore assumed a moral stand that Kashmir could not be signed away by the Maharaja but required the consent of the people. This stand was changed in 1957. When Krishna Menon spoke in the UN in 1957, he took a different stand. His stand was that the instrument of accession had made Kashmir irrevocably a part of India. He said that though India stood by its commitment to determine the will of the people by a plebiscite and to implement that will, this was a question between India and the people of Kashme and neither Pakistan nor anybody else had any say in this.

There is a lot more to be said on Kashmir and the contradictory stands that the Indian Government took in later times but that would be another story and would detract from our aim to understand the true nature of the revocation of Article 370. We may mention that there was a meeting on Kashmir between India and Pakistan in 1963 between Zulfikar Ali Bhutto and Swaran Singh (both then foreign ministers). They agreed to try and resolve the Kahmir problem peacefully and effectively to demilitarise. In 1966, in Tashkent, Prime Ministers Lal Bahadur Shastri and General Ayub Khan met and could only issue a declaration of good intentions. In 1972 the Simla agreement was reached between Prime Ministers Zulfikar Ali Bhutto and Indira Gandhi. Innumerable more attempts have taken place but more in the nature of show than any real intent to solve the Kashmir problem.

Besides the official proposals of India, Pakistan and the UN, many other proposals have come up for solving the Kashmir issue. Such proposals cover the entire gamut of possibility. Kashmir to be partitioned between Indian and Pakistan or to be free or to have various degrees of autonomy. Such partitioning to be either on the basis of a comprehensive plebiscite or a partial one (only in the valley, mainly) or on the basis of a negotiated settlement. Only two proposals need to be mentioned for the purpose of this article. The first that we need to note, a stand rather than a proposal, is the one taken by the BJP. They hold that Kashmir is an integral part of India and there is nothing to discuss and, in fact, their manifesto of 1998 calls for seizing control of all areas “under foreign occupation”.

The other proposal which is necessary to note is the one by JKLF (the Jammu and Kashmir Liberation Front). From the very beginning, there were three trends in Kashmir. Two were major. The National Conference led by Sheikh Abdullah represented the trend to stay with India because the national conference had been fighting to remove monarchy and establish democracy even before independence. The other trend was of the Muslim Conference. They wanted a muslim state to be established and therefore wanted to lean towards Pakistan. At the same time there wee a large section within the National Conference and outside it which wanted an independent Kashmir. This remains a popular demand. A poll in 2007 showed that 90% of people in the Kashmir valley wanted independence.¹⁹ The JKLF therefore proposes that there should be an independent Kashmir which will then unite and demilitarise for 15 years at the end of which there will be a referendum.

However it is not these proposals that we are concerned with now. To return to Article 370, one can immediately see what was the nature o the situation in which Article 370 was enacted in 1950. It was first introduced in 1949 as an amendment to the draft constitution then under the consideration of the Constituent Assembly – Article 306A (as it was then called).

At the time of independence in 1947, there were two types of territories in India. The Provinces which were directly ruled by the British (which were clearly like today's states) and the princely states which enjoyed a greater of lesser degree of autonomy. Each princely state had its own relationship with the British. Mostly Defence, External affairs and communication, along with ancillary subjects were under the British whereas many others remained with the princely state itself. There were various types of relationships. For instance in Berar, the region belonged, till the 1940s, to the Nizam of Hyderabad but was leased to the British at the end of the Nineteenth century. The citizens were expected to owe alleigance to the Nizam but to obey the laws of Her (or His) Majesty and both flags were flown. In most princely states there were two types of courts – the local courts to settle the more “mundane” local issues and the British courts which could be invoked by European citizens and which governed “federal” subjects. Most princely states has their own armies, own flag, own boundaries and own customs duties.

There were more than 550 princely states in existence in 1947 which accounted for over 40% of the area of what was to become India and about 23% of the population. The largest by area and the 3^rd largest by population was Jammu & Kashmir (with only Hyderabad and Mysore having larger populations. It was one of only 5 Indian states whose ruler was entitled to a 21 gun salute. This was the actual measure of the importance of the state.

This was the situation when the Constituent Assembly of India undertook the task of preparing a constitution. The instrument of accession finally signed by the 550 states did not give full rights to the Dominion of India. As pointed out only the right to legislate on matters relating to Defence, External Affairs, Communication and Ancillary subjects were ceded to the Indian legislature. Each state was given the right to draw up its own constitution. The instrument of accession provided that the acceding state would not be bound by the Constitution of India. Some states like Mysore, Travancore-Cochin and Saurashtra Union had already formed their own constituent assemblies.

It was a long and tortuous process to integrate the Indian states with India. The British Cabinet Mission plan had envisaged only a loose federation of states with only three subjects with the centre. To allow the 550 odd states to become part of India in a full fledged way required many improvisations. Some of the smaller states (and some larger ones like Kolhapur) were integrated into the Provinces. They formally ceded their power to rule in every way to the Indian Government. They were given privy purses and allowed to retain their titles in return. Some other states were united into a larger state (for instance Saurashtra Union, PEPSU (Patiala and East Punjab States Union), etc. These states then had a Rajapramukh appointed by the President. They had to sign fresh instruments of accession and then were persuaded to hand over rights to legislate on all matters in the Central List and the Concurrent list, as per the Government of India Act, 1935 (broadly corresponding to the same lists in the present Constitution) to the Union Government. These latter agreements, made in 1948-49 with all princely states are called Merger Agreements. By the first article the ruler ceded to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State.²⁰ All other states have signed such a “Merger Agreement” - except for Jammu & Kashmir. It is true that in 1954 the State Constituent Assembly of J & K agreed to adopt the Indian Constitution. However, it was the Indian Constitution with Article 370 that was agreed to be abided by. It was this article which was a special article for Kashmir which gave the centre only the right to make laws for defense, external affairs and communications as envisaged by the instrument of accession. Other central laws could only apply to the state if agreed to by the State Assembly

This article was not merely put in as a “sop”. As pointed out, J&K had a different history from the rest of India. At the very time of accession, they were promised a plebiscite to decide their fate. They were the only Indian princely state which did not sign a merger agreement. V. P. Menon²¹ has written in his famous book, “The Story of the Integration of the Indian States”, about Kashmir, “When the Constitution was being finalised, the choice before us was either to leave the State our of the purview of the Constitution or to include it as a Part B state²². Since the legal fact of accession was beyond question, we decided to include it among Part B states; but its relations with the Government of India were confined to the terms of the Instrument of Accession, namely defence, external affairs and communication subject to the proviso that other provisions of the Constitution could be applied to Jammu and Kashmir in consultation with the Government of that State”.

Thus it can be seen that Article 370 (which was introduced by the Drafting Committee by way of an amendment during the Constituent Assembly debates as Article 306A) was not introduced due to the need to appease anybody but was the embodiment of the fact that there had never been any merger agreement with J&K. N Gopalaswamy Ayyangar, one of the representatives involved in drafting the Constitution said, while replying to the question raised by Maulana Hasrat Mohan about why J&K was being discriminatedi²³

“The discrimination is due to the special conditions of Kashmir. That particular State is not yet ripe for this kind of integration.”

“In the case of the other Indian States or Unions of States there are two or three points which have got to be remembered. They have all accepted the Constitution framed for States in Part I of the new Constitution and those provisions have been adapted so as to suit conditions of Indian States and Unions of States. Secondly, the Centre, that is the Republican Federal Centre will have power to make laws applying in every such State or Union to all Union Concurrent Subjects. Thirdly, a uniformity of relationship has been established between those States and Unions and the Centre. Kashmir's conditions are, as I have said, special and require special treatment.”

“We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.”

“Again, the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it. We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the instrument of a constituent assembly, will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.”

“The effect of this article is that the Jammu and Kashmir State which is now a part of India will continue to be a part of India, will be a unit of the future Federal Republic of India and the Union Legislature will get jurisdiction to enact laws on matters specified either in the Instrument of Accession or by later addition with the concurrence of the Government of the State. And steps have to be taken for the purpose of convening a Constituent Assembly in due course which will go into the matters I have already referred to. When it has come to a decision on the different matters it will make a recommendation to the President who will either abrogate article 306A or direct that it shall apply with such modifications and exceptions as the Constituent Assembly may recommend. That, Sir, is briefly a description of the effect of this article, and I hope the House will carry it.

Besides Maulana Hasrat Mohani, the only other person who even spoke during this debate was Mahavir Tyagi who only rose to say that he was not in agreement with the wording of the Article but would not move any amendment.

So, it is clear that, firstly, Kashmir acceded to India only on the basis of an assurance that a plebiscite would be held soon. Though such an assurance was not written into the instrument of accession, it is clearly discernible from surrounding circumstances. The Indian Government only brought the army into Kashmir to protect it against the invading tribesmen. Though such invasion may well have had the support of Pakistan, it is no excuse for occupying territory. This only leaves Kashmir in the position of being a region occupied twice over. Thirdly, even legally, if we were to say that the instrument of accession is a completed action, still, there has never been any agreement of merger and there cannot be any justification for any powers to the Indian Government further than those fouind in the instrument of accession.

But all such arguments are merely formal and pale into insignificance when faced with the biggest argument of all. What of the will of the people? Kashmir has had an independent history. It has its own language and culture. It has its own economy. In such a situation, can we claim a right to Kashmir only on the basis of an instrument of accession signed by its ruler? Leave aside the fact that he is a Hindu ruler of a Mohammedan people. If we claim our right to Kashmir on the basis of this “legal” document, then we relegate our independence to being a creation of the Indian Independence Act of the British parliament. The Indian Constitution starts with “We the people of India give unto ourselves...” not “Whereas the British Parliament had enacted the .....Act”. What then of the people of Kashmir? Have they no say in what is to become of Kashmir? India has held onto Kashmir dressed only in the fig leaf of the instrument of accession for too long. Now along comes Modi to tear away even this fig leaf by denuding the Constitution of Article 370 and struts around in the Emporers new clothes not realising that he is actually naked. India today stands in Kashmir as a naked occupying force. At least Article 370 had given it some legitimacy in saying that we are still waiting for the will of the people through a plebiscite. Even the National Conference which had for so long supported the unity with India is now totally alienated. Nobody in Kashmir is willing to accept the rule of India. To keep ruling, there is a clamp down with all internet and mobile communication being shut down in the valley for almost two months. Since the last seventy years and especially in the last two decades, Kashmir has become the most militarised zone in the world. So the average Indians cough up lakhs of crores of rupees to maintain a huge military presence in a hostile territory the only result of which is that the people of that region will hate India even more! This makes no sense at all.

05 September 2019