A land historically associated with the great Shankaracharya and ascetic Shaivism, the journey followed by Kashmir represents the resilience of Indian nationalism in reclaiming a part of itself against many odds. A recent conclusive judgement by the country’s highest court has brought the issue back to the fore and serves as a reminder of, both, the achievements of Indian nationalism as well as the multiplying challenges awaiting it at many turns.
In a landmark judgement delivered recently, the Supreme Court upheld the validity of the decision of the central government – taken on August 5th, 2019 – to revoke Article 370 which had accorded a special constitutional status to the former state of Jammu & Kashmir. In the process of its revocation, the Parliament had also downgraded J&K to the status of a Union Territory (UT) and separated Ladakh from it as a separate UT. The Court upheld all these decisions. The judgement is significant as it finally brings to a closure a slew of legal challenges confronting the Parliamentary decisions in 2019. It also reveals the rapid changes that have taken place in the region since 2019.
The Tryst of Kashmir with Terrorism and Article 370: A Historical Injustice
Kashmir was a princely state under the British rule, with majority Muslim population – thanks to centuries of Islamic invasions and conversions – ruled by a Hindu ruler, Maharaja Hari Singh. The constitutional status of princely states, at the time of Independence in 1947, was different from the British India provinces. The princely states enjoyed a degree of internal autonomy and a certain guaranteed protection under the British suzerainty – an arrangement known as the subsidiary alliance system – in return for supporting the British rule in India by providing various forms of assistance. At the time of Independence, the majority of nearly 600 princely states were united with India through a mixture of methods employing power and diplomacy, except for some outliers like Junagarh, Hyderabad and Kashmir. Even as the other outliers were resolved, Kashmir has continued to be a festering issue for India since 1947. The main reason for this was the series constitutional changes – in the form of Article 370 – that kept the special status of Kashmir alive and prevented its full integration into the Indian Union.
The dispute began when, after the creation of Pakistan in 1947, Maharaja Hari Singh realized that his state would soon be overtaken by the incoming Pashtun hordes and Muslim tribesmen from Pakistan. India refused to come to his aid unless he signed the Instrument of Accession and acceded to India. The Instrument of Accession was finally signed on 26 October 1947, but not without travails. Domestically, the state had ceded only defence, foreign affairs and communications to India, with Lord Mountbatten diabolically attempting to make this accession provisional and insisting that the final decision on accession should be taken by the Constituent Assembly of J&K.
Internationally, Mountbatten prevailed upon Nehru to hold a plebiscite and refer the issue to United Nations Security Council (UNSC) in 1948. India had adopted a relatively weak approach at the UN, where Indian statesmen like Ayyangar refused to directly condemn Pakistan, giving the impression that India was willing to bend backward to accommodate Pakistan. India’s weak approach, in contrast to Pakistan’s aggressive lobbying, ensured that India found itself backed into a corner time and again.
Further, at the UNSC, the British allied with Pakistan – and compelled the US to do so as well – arguing that since J&K had majority Muslim population, it should belong to Pakistan and that India should withdraw its forces from the Hindu majority Jammu as well. This was in direct contrast to the two key resolutions of the United Nations Commission for India and Pakistan (UNCIP) set-up in January 1948 after India’s approach to the UNSC. The UNCIP procured evidence – from Pakistani leaders themselves – that Pakistani Army was guiding the raiding intruders in Kashmir. Therefore, in its resolution dated 13 August 1948, it set 3 conditions viz.,
a. Declaration of ceasefire by both sides.
b. Withdrawal of Pakistani troops and tribals from Kashmir, followed by withdrawal of troops by India.
c. Holding of a plebiscite.
While the ceasefire was finally achieved by January 1949, the Pakistani refusal to withdraw its troops and proxies from Kashmir prevented the plebiscite from taking place there and then. Over time, as we know, Pakistan’s occupation of Pakistan Occupied Kashmir (PoK) hardened and the resolutions to which India was party viz. of 1948 and 1949, were, for all practical purposes, confined to history.
Even as Kashmir became a bilateral dispute between India and Pakistan, with international ramifications, the domestic situation in J&K also went on the path of deterioration. The cultivation of founder of National Conference (NC) party – Sheikh Abdullah – by Nehru in the initial years after Independence led to the rise of Muslim extremism and separatism in the Valley. Since Abdullah also wanted to expand his own political sphere of influence independent of both India and Pakistan, he painstakingly burnished his secular credentials until 1950. He was reluctant for Kashmir to go to Pakistan, since that would dent Kashmir’s future as well as his own prospects of independence, yet, even though he wanted Kashmir to remain with India, it should be in an autonomous position, so that only politicians of his ilk could rule, while India had no say and only ensured defence and money. Power and promotion of Islam being his mainstay, Abdullah was thus never averse to acting as an agent of either India or Pakistan, depending on what circumstances suited his and Kashmiri Muslim interests. Nehru realized this much later. But by then Abdullah extracted his cost in the form of Article 370 and the damage was done.
Article 370 was incorporated during the transitional period sometime between the date of signing of the Instrument of Accession and the drafting of the final Constitution of J&K by the Constituent Assembly of the state. The Article was included in Part XXI of the Indian Constitution under ‘Temporary, Transitional and Special Provisions’. The Article was included in October 1949 and became operational in 1952 once the Constitution of J&K was drafted.
Under the Article, all matters other than defence, foreign affairs and communications could be legislated in the context of J&K only, with the concurrence of the state government. Article 370 effectively ensured that none of the Indian laws would apply to the state of J&K. Worse, as was its main intention, by according the state ‘special status’, it gave permanent space to the free play of Muslim separatism and terrorism in Kashmir, by ensuring that the Indian state would never be able to change the Muslim demography of the state and would never be allowed to settle or give political rights to non-Kashmiris.
It is no wonder that Dr. B.R Ambedkar refused to draft Article 370, and is cited as saying that:
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 you food grains, and Kashmir should get equal status as India, but you don’t want India and any citizen of India to have any 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 interests of India, and I, as the Law Minister of India, will never do. I cannot betray the interests of my country. (Naidu, 2019).
The refusal of Ambedkar to draft the Article resulted in Gopalaswamy Ayyangar drafting it instead. Ayyangar faced heat and extremely stormy protests from other Congress leaders. Article 370, by granting ‘special status’ to J&K, ensured that none of the laws of India could be made applicable to the state except by obtaining a prior consent of the constituent assembly of J&K. Indians from other parts of the country could not buy land or settle in the state, even though Kashmiris would be treated as equal citizens in the rest of the country. As per Article 35A, introduced through a Presidential Order in 1956, Indians could not buy immovable property in the state and Kashmiri women who married non-Kashmiris had their permanent residency certificate revoked. Indian citizens could not vote in elections in J&K or get jobs in the state, and neither were any of the laws of the Indian Constitution applicable to the state except through Presidential Orders promulgated after obtaining the consent of the J&K government.
The extent of injustice perpetrated by this special status ensured the creation of an Islamist ghetto. The majority community of India which was a minority in Kashmir viz. Hindus were deprived of basic rights in a state that was supposed to be an integral part of India. The Hindu migrants driven out of West Pakistan in the early years after Partition and resettled in J&K have lived like refugees without rights in their own country, deprived of employment, right to vote, property and financial and other services.
Sheikh Abdullah left no stone unturned between 1949 and 1952, as the shape of the state constitution was being decided, to pass adverse proposals that soon put him at odds with Nehru and the Indian government. He continued to make inflammatory speeches, nursing Muslim chauvinism, which openly threatened Kashmir’s accession to India. In fact, all his proposals – special permit to enter the state, post of Prime Minister for the state etc. – were aimed at nullifying the accession and ensuring more independence for J&K. In 1953, Nehru, through the Sadar-i-Riyasat (later, the post of Governor), Karan Singh, got Sheikh Abdullah detained and dismissed in a covert, well-planned overnight operation. This evoked a hysterical reaction in Pakistan, which felt that India had now started taking hold of Kashmir and bringing internal changes – a true guess since, after 1954, the Indian government has passed various laws, over the decades, to dilute Article 370. The final constitution of the state was drafted and signed in 1956, even as Sheikh Abdullah continued to be in detention, and came into force in 1957.
While Nehru, through his space lifetime subsequently adopted a firm approach towards Abdullah, this became diluted during the 1970s, as the Congress, under Indira Gandhi, decided to launch itself in Kashmir and signed the 1975 ‘Kashmir Accord’ between Sheikh Abdullah and Indira Gandhi. Things were back in reverse gear and seeds of separatism strengthened, thanks to Abdullah’s unabated communalism and open scorn for ‘Hindu India.’ With Abdullah back at helm, NC strengthened further, as did the anti-national elements, with cases withdrawn against certain hardcore terrorists and with Abdullah firmly launching his son, Farooq Abdullah, to take over the reins of the party and Kashmir politics. After Sheikh Abdullah’s death in 1982, his son continued unabated his policy of encouraging separatism and hardline Muslim elements and fostering alienation from India. He even outstripped his father in his ardour for terrorists but faced setbacks due to his own limitations. During Farooq Abdullah’s initial years, camps of Muslim and Khalistani terrorists, given refuge by him, were run in the Valley openly.
After 1986 and with Jagmohan as the governor of the state, Farooq Abdullah allied openly with pro-Pakistan elements and communalized the situation to a dangerous extent. He was forced to ally with Congress in the infamous and rigged 1987 elections. The phase after 1987 changed Kashmir completely. On the one hand, thanks to the antics of the Abdullah family, separatism, anti-India sentiments and Muslim radicalization had become firmly established since 1975. Between 1975 and 1989, Kashmiri youth used to go to jihadi training camps based in PoK to come back and attack India. The Afghan war which had raged from 1979 to 1989 also marked a new phase of power for Pakistan. The US and Pakistan had together created the Taliban and nurtured jihad to oust the Soviet Union from Afghanistan. This not only brought Pakistan closer to US, ensured a lot of flow of money and gave it immense new power, but also made it possible for it to divert the freed jihadis from Afghanistan, in 1989, to Kashmir – with success. Congress, drunk with its own power and facing electoral weakening at the national level, was unable to act in national interest.
This phase officially marked the beginning of insurgency in Kashmir and the demand for a separate Ladakh due to Buddhist-Muslim tensions in Ladakh. Further, after 1989, Jammu and Kashmir Liberation Front (JKLF) and other separatist organizations, in the name of ‘azadi’, went onto commit a massive genocide against Kashmiri Pandits, leading to their mass exodus from the Valley. Mufti Mohammad Sayeed, as India’s Home Minister in 1989, released dreaded terrorists in exchange for his daughter who was abducted by JKLF. Kashmir remained under Governor’s rule for the large part of the 1990s decade, thankfully insulating it somewhat from the vagaries of India’s coalition politics that marked a tumultuous churning in Indian politics from 1989 onwards. Governor’s rule and imposition of Armed Forces Special Powers Act (AFSPA) ensured that militancy was crushed with a heavy hand, under Jagmohan, resulting in unconditional surrender of terrorists like Yasin Malik of JKLF and a split in JKLF’s Pakistan and India factions in 1995. Jagmohan was in his second stint as the Governor when militancy was dealt with a heavy hand.
Politically, during this phase, India was under siege from all sides. Politics was unstable due to the rise of the coalition era, while economy after being in dumps was in a period of transition. Terrorism in Kashmir and Punjab and in the north-east was at its peak. Relations with Bangladesh, China and Myanmar were not good, while Pakistan was basking in the strength of its relationship with the US and the West, being at an all-time high. India’s politics of appeasement and secularism could not have come at a worst time. Despite the nuclear tests of 1998 and the Kargil War of 1999, India continued to ignore its claim to be a power in its own right. Our government continued to unabatedly indulge Kashmiri terrorists and Pakistan, by seeking dialogue with them.
As we know, Pakistan has subsequently gone on to launch deadly terror attacks on the Indian soil, taking advantage of India’s weak approach, both during Vajpayee and Manmohan Singh governments. During the UPA era, the peak of terror attacks came between 2005 and 2009 in mainstream Indian cities like Delhi, Varanasi, Mumbai etc. Even as the Congress-led government at the Centre harped on its newly manufactured discourse of so-called Hindu terrorism to whitewash Islamic terrorism, terror attacks had shifted their base from Kashmir to the heartland of India. These were the years when the sham of ‘peace’ was enacted by the Indian government in Kashmir. Separatists and terrorists received full indulgence from the then Indian government, as did Pakistan.
A New Beginning and the Revocation of Article 370
It was only in 2014, with a change of government at the Centre, that this appeasement and the entrenchment of a temporary provision like Article 370 was challenged. Although revocation of Article 370 had formed a part of the Sangh Parivar ideological agenda and promise since 1950s, it was the Modi government which raised debate over this Article and meticulously went about engineering the events leading up to its abrogation. The developments precipitating in the revocation of Article 370 were set in motion in 2018 when the BJP broke off its alliance with the People’s Democratic Party (PDP) and imposed Governor’s rule in the state. Under President’s Rule, record number of terrorists were killed, including major terrorist commanders. The entire Hizbul Mujahideen leadership had been wiped out, while top leaders of other terror networks were dead. After Pulwama, India’s airstrikes deep inside Pakistan in Balakot changed the Indo-Pak equation for good. At the same time, its direct fall-out was dealing a blow to the separatist mentality of Kashmiri Muslim leaders and their followers.
Engineering the Revocation of Article 370
In early March 2019, when, unbeknownst to most observers, the government first tested the waters for abrogating Article 370. This was done using Article 370 (1) and the Presidential Order of 1951, wherein the central government could make applicable any of the laws or constitutional provisions of the Indian Constitution to the state of J&K with the consent of the state government. Since the state was under President’s Rule, the Governor was recognized as the ‘state government’, without any legal hurdle. Thus, in a landmark move, in March 2019, SC/ST reservation in promotion was introduced in the state, as was the recent quota for Economically Weaker Sections (EWS).
In 2019, weeks before the revocation of Article 370, several prominent Kashmiri politicians, such Abdullahs, Muftis, Lone and other prominent Kashmiri public figures were detained under house arrest. The government finally abrogated the special status of the state under Article 370 and made J&K a Union Territory by passing a Reorganization Bill. Article 370 (1) (d) was used to abrogate the special provisions under Article 370 (3). Therefore, Article 370 was used to amend Article 370 itself and abrogate the special status. In 1953, Nehru had also clearly stated that this was a temporary provision that would be repealed. Unlike provisions and clauses under Article 371, which apply to north-east states and fall under a ‘special provision’, Article 370 of J&K was completely different viz. it fell under a ‘temporary provision.’
As per Article 370 (1) (d), other provisions of the Constitution can be made applicable to J&K with such “modifications as the President may by order specify”. For this, the consent of the state government had to be obtained. However, there was a legal catch in the form of Article 370 (3), which states that the President can issue a notification making the whole of Article 370 inoperative if such a recommendation is made to the President by the Constituent Assembly of J&K. Now, while there is an inbuilt provision for abrogating Article 370 within the Article itself, the problem was that the J&K Constituent Assembly ceased to function after 1957 without making any recommendation for abrogating this Article.
Article 370 was supposed to be temporary till the J&K Constitution was drafted, after which the Constituent Assembly should have secured its abrogation, as per the original intention. This was never done, and the assembly was dissolved in 1957. So, how does one abrogate the state’s special status? The unfinished work of constituent assembly till 1957 and inability of the President to amend Article 370 (3) has had the diabolical effect of giving a ‘temporary provision’ of Article 370 permanent practical effects for the last few decades.
The government overcame this hurdle by amending the interpretation clause of the Constitution viz. Article 367. The government added sub clause (4) (d) to Article 367, which now states that the term ‘Constituent Assembly’ in Article 370 (3) must be read as ‘Legislative Assembly’. Therefore, even though the President could not directly amend Article 370 (3), he did so indirectly by amending Article 367, which is used for interpreting how Article 370 can be read. The consent of the constituent assembly was, therefore, no longer needed, and due to the President’s Rule, the work of the legislative assembly was taken over by the Parliament.
The Present Judgement
The clutch of petitions before the Supreme Court which challenged the Central government revocation of Article 370 have now been settled by the Court by upholding the revocation to be valid. The Court passed its landmark judgement in a unanimous decision of a five judge Constitution bench, led by Chief Justice, DY Chandrachud.
First, the Court invalidated the petitioners’ argument that J&K continued to have an element of internal sovereignty even when it joined the Indian Union. The Court, upon examination of constitutional structure of the state, held that Section 3 of the Constitution of Jammu and Kashmir had declared that J&K is and shall be an integral part of India. Furthermore, Article 1 of the Indian Constitution, which declares India to be a Union of States, references J&K as part of the States. Therefore, the Court held that J&K has divested itself of any sovereignty when it signed the Instrument of Accession and joined India in 1947.
Second, contrary to the petitioners’ argument that Article 370 had attained permanence and that after the dissolution of J&K assembly in 1957, no constitutional means existed to revoke Article 370, the Court held that Article 370 was always meant to be temporary, interim arrangement. Therefore, the dissolution of the state Constituent Assembly in 1957 does not impact the mechanism under Article 370 (3) through which the special status of J&K was revoked. The Court ruling stated that, “The power under Article 370 (3) did not cease to exist upon the dissolution of the Constituent Assembly of Jammu and Kashmir. When the Constituent Assembly was dissolved, only the transitional power recognized in the proviso to Article 370 (3) which empowered the Constituent Assembly to make its recommendations ceased to exist. It did not affect the power held by the President under Article 370 (3).”
Third, the petitioners also questioned the validity of revoking the special status and making such sweeping constitutional changes when the state was under President’s Rule under Article 356. They argued that under Article 356, the President, while exercising his powers, cannot undertake decisions with irreversible consequences without the consent of the state legislature – such as repeal of special status, separation of Ladakh and conversion of the state into a UT. In response, the Court dismissed such arguments saying that challenging the exercise of President’s powers on the ground of irreversible consequences would open the way for even challenging everyday administrative actions, which would, in effect, bring governance to a standstill.
The Court, however, held that exercise of Presidential power under Article 356 should have a reasonable nexus to the objective of Presidential Proclamation. In this regard, the bench cited the 1994 Supreme Court ruling in the S.R. Bommai v. Union of India case, which defined the contours of President’s Rule. Relying the on 1994 ruling by a nine-judge bench, the Court presently held that the standard to decide the validity of the President’s action was to see whether it was not “mala fide or palpably irrational”, or that the “advisability and necessity of the action was not borne in mind by the President.”
Fourth, the Court held that carving out Ladakh as a separate UT was valid, as the Parliament could exercise such power under Article 3 of the Constitution, which empowers it to create new states or change the boundaries of existing states without being bound by the views of the states themselves. On the question of the status of J&K as a UT, the Court did not go into it, as the Centre had promised to restore it to full statehood. The Court merely said that this should be done expeditiously, and also told the Centre that measures should be taken to hold elections in the UT by September 30th, 2024.
Changing Contours of Jammu and Kashmir
More than the legalities and constitutional technicalities through which the revocation of Article 370 was upheld, the actual significance of the judgement lies in the fact that it is in sync with the positive changes that have taken place in the Valley since 2019. Key among those changes is the decline of terrorism and stone-pelting incidents in the Valley. There is also a loss of support for terrorists among the locals and an increased support for the government. Sympathy for Pakistan has also soured. The following are indicators of changing security situation in the Valley (Majid, 2023):
First, as per official estimates, while 124 civilians were killed at the hands security forces during protests and stone-pelting incidents between August 2016 and August 2019, not a single such incident was reported in the last four years.
Second, while 35 militants were killed in various operations by the security forces from January to August in 2023, the number was over 120 in the same period last year. In 2022, 186 militants, including 56 foreigners, were killed by the security forces.
Third, several infiltration attempts have been foiled and not more than 12 locals have joined militancy till mid-2023. This has brought down the number of active militants to double digit.
Fourth, investment projects worth nearly Rs 25 thousand crore are under execution in J&K while proposals to the tune of over Rs 80 thousand crores are under process. Since Independence, J&K had received private investments to the tune of Rs 14,000 crore only. However, after the abrogation of Article 370 and the introduction of new Industrial Development Scheme, J&K has received investment proposals worth more than Rs 80,000 crore in the last two years alone.
Fifth, the political situation at the level of people has witnessed sea changes. The Scheduled Tribe community has got political reservation and even been elected to local bodies like District Developmental Councils. Dalits and OBCs have similarly been empowered. Further, more than 60,000 refugees from West Pakistan as well as Gorkhas have also secured their rights and domicile.
All these huge changes, which would have seemed unimaginable before 2019, have occurred rapidly ever since the Indian laws were fully made applicable to J&K. The most significant aspect of these changes has been the psychological optimism that has displaced the dread, violence and terrorism of the last few decades. The earlier governments, particularly the UPA and the erstwhile NDA (during 1999-2004) had followed an approach that had mostly led to the alienation of the locals and the encouragement of terrorists. Both Manmohan Singh and Vajpayee governments had sought to cultivate militant leadership such as those of Hurriyat and had sought to resolve the Kashmir issue in dialogue with Pakistan. This had given legitimacy to these militant-terrorist outfits and to the rouge Pakistani state. At the same time, the perception of the locals was that of human rights excesses by the security forces and local sympathy for terrorist elements. It seems that the so-called hearts-and-mind approach was reserved more for the terrorists and less for the people.
In contrast, the Modi government has eliminated the separatist leadership from the scene. Not only has the government refused to talk to these separatists and to Pakistan but has also adopted a military approach in settling Pakistan and imprisoned major separatist leaders. Indeed, recent times have even witnessed mysterious record killing of terrorists inside Pakistan itself – terrorists whom India had designated as such. Supplementing this hard approach towards terrorism, the government has, through its efforts, local outreach and programmes, created goodwill among the people. The days of routine protests are now over and the reports of human rights excesses have become rare. Any instance of human rights excess is now rare and thoroughly taken seriously by the government, such as the recent incident in Pir Panjal.
Even as there is overall improvement in the environment, challenges will continue to abound. Instances of terror attacks on security forces are a challenge to which the Indian state is constantly receptive. The recent spate of attacks shows that peace in the Valley has been accompanied by a shifting of terror loci from Kashmir to Muslim-majority Pir Panjal region of Jammu, particularly Rajouri and Poonch, where 40 soldiers have been killed since 2020. Another challenge is the use of Artificial Intelligence (AI) technology by terrorists, through the use of drones, hard-to-trace YSMS technology, SIM-less phone activation and other techniques of hybrid warfare.1 It has become difficult for the security forces to trace many of these attacks even though terrorists have made videos of them using body cameras.
Conclusion
Despite this plethora of opportunities and increasing challenges facing J&K, there is an abiding certainty that the country is moving in a sound direction. Despite the best efforts of certain governments to securitize, mechanicalize and alienate the Kashmir issue from larger national questions, this issue has had a significant impact upon the psychology of the nation and has been instrumental in consolidating our national consciousness. Its successful movement towards settlement also represents the growing Indian position in world affairs. The Kashmir issue represents the microcosm of the journey of the Indian nation from the communal Partition of the subcontinent by the British in a bid to weaken a newly independent India – in this journey Kashmir played a significant role – to the successful sweep of Indian nationalism in reclaiming its strength and vitality.
Bibliography
Majid, Z. (2023, August 4). Deccan Herald. Retrieved from https://www.deccanherald.com/india/what-changed-in-kashmir-in-four-years-after-abrogation-of-article-370-1243830.html
Naidu, V. M. (2019, August 17). A considered step that opens up new vistas. The Hindu.
