Kashmir; Past, Present and the Future

Syllabus
GS Paper 2 – Indian Constitution — Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure, Issues & Challenges Pertaining to the Federal Structure, Centre-State Relations, Inter-State Relations

Context
The Supreme Court upheld the Centre’s decision to abrogate Article 370, which granted special status to the erstwhile state of Jammu and Kashmir.

Source
The Hindu | Editorial dated 12- December 2023

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History of Jammu and Kashmir (J&K)

• Kashmir, Jammu, Ladakh, and Gilgit were under Hindu and Buddhist rule before various empires and rulers took control.
• Kashmir played a significant role as a center for Buddhism and Hinduism.
• Dynasties such as Gonanditya, Karkota, and Lohara held sway over Kashmir and the surrounding regions in North-western India.
• Kashmir was under the rule of Hindu dynasties during this period.
• The dominance of Hindu dynasties persisted until the year 1339.
• Shah Mir emerged as the first Muslim ruler, marking the beginning of the Shah Mir dynasty.
• This transition from Hindu to Muslim rule occurred, shaping the cultural and political landscape.
• Kashmir became part of the Mughal Empire under Akbar’s conquest in 1587.
• The Mughals established control over Kashmir, impacting its governance and historical trajectory.
• Gulab Singh became the ruler, succeeded by Ranbir Singh in 1857.
• Hari Singh assumed power and was in charge when the treaty with India was signed.

Princely Status Under British Rule (1846-1947):

• Maharaja Gulab Singh, belonging to the Dogra Dynasty, solidified Jammu and Kashmir’s connection with the British Empire.
• In 1846, the ‘Treaty of Amritsar’ was signed between Maharaja Gulab Singh and the British East India Company.
• Gulab Singh paid Rs. 75 lakhs to the East India Company in exchange for Kashmir and additional territories, unifying Jammu and Kashmir as a single entity.
• Throughout the period from 1846 to 1947, Jammu and Kashmir retained its status as a princely state under the rule of the Jamwal Rajput Dogra Dynasty.

Accession of J&K to India

• Princely State Status during Partition (1947):
  • As mentioned above Jammu and Kashmir (J&K) was a Princely State during the partition of British India in 1947.
  • Princely states were given the option to join India, join Pakistan, or remain independent.
• Ruler and Standstill Agreement Proposal:
  • Maharaja Hari Singh, a Hindu ruling over a majority-Muslim state, desired neither to merge with India nor Pakistan.
  • He attempted negotiations for an independent status, proposing a Standstill Agreement to both India and Pakistan.
  • On August 12, 1947, identical communications were sent to the governments of India and Pakistan.
• Pakistan’s Acceptance and Subsequent Actions:
  • Pakistan accepted the Standstill Agreement on August 15, 1947, agreeing to maintain existing arrangements.
  • India recommended that Maharaja Hari Singh send an authorized representative to Delhi for further discussions.
• Kashmiri Involvement in Nationalist Movement:
  • Kashmiri people actively participated in the Indian Nationalist Movement.
  • Their aspirations extended beyond gaining independence from British rule; they also sought liberation from the Dogra dynasty’s rule in a post-nationalist era.
• Standstill Agreement Violation by Pakistan:
  • Despite the Standstill Agreement, Pakistan sponsored a tribal militant attack in Kashmir in October 1947.
  • Pashtun raiders from Pakistan invaded Kashmir, seizing control of a significant area.
• Hari Singh’s Appeal and Indian Assistance:
  • Faced with the invasion, Maharaja Hari Singh appealed to the Governor General of free India, Lord Mountbatten, for assistance.
  • India pledged support under the condition that Hari Singh signs the Instrument of Accession to India, which he did in 1947.
  • The agreement also acknowledged that once the situation normalized, the views of the people of J&K would be considered regarding their future.

Instrument of Accession (IoA):

• Executed by Maharaja Hari Singh on October 26, 1947.
• Declared the princely state of Jammu & Kashmir’s accession to India.
• Gave India’s Parliament legislative powers specifically in defense, external affairs, and communications.
• Maharaja Hari Singh declared the establishment of an interim popular government.
• Sheikh Mohammed Abdullah was appointed as the Prime Minister of the interim government.
• IoA Details:
  • Limited legislative authority for India, focusing on defense, external affairs, and communications.
  • Ancillary subjects included elections to the dominion legislature and offenses related to the specified matters.
• Military Response (October 27, 1947):
  • Hari Singh’s signing of the IoA on October 26 marked J&K’s integration into India.
  • Indian troops were swiftly airlifted to Kashmir on October 27, effectively halting invaders within two weeks.
• Pakistan’s Non-Acknowledgment and First Kashmir War:
  • Despite the IoA, Pakistan did not acknowledge it, leading to the first Kashmir War.
  • Pakistani and rebel forces attempted to invade Jammu, escalating the conflict.
• UN Intervention (1948):
  • Instead of a complete repulsion of invaders, the matter was taken to the UN in 1948, following Lord Mountbatten’s advice.
  • A ceasefire was declared on January 1, 1949, establishing the Line of Control (LOC).
  • Division of Control:
    • India controlled two-thirds of the state.
    • Pakistani forces held Gilgit and Baltistan in the divided territories.

Delhi Agreement (July 1952):

• Residuary Powers:
  • The residuary powers of the legislature, which rested with the Centre for other states, were granted to Jammu and Kashmir itself.
• Citizenship and Special Rights:
  • Persons domiciled in Jammu and Kashmir were considered citizens of India.
  • The State Legislature could enact laws conferring special rights and privileges on the State’s subjects.
• Application of President’s Role:
  • Articles 52 to 62 of the Constitution relating to the President of India were applicable to the State.
• State Flag:
  • Jammu and Kashmir could have its own flag in addition to the Union flag, with the understanding that the State flag wouldn’t rival the Union flag.
• Election of Sadar-i-Riyasat:
  • The Sadar-i-Riyasat, equivalent to the Governor in other states, would be elected by the State Legislature, not nominated by the Union government.
• Fundamental Rights Dilemma:
  • Due to the unique situation, especially Sheikh Abdullah’s land reforms, the application of Fundamental Rights from the Indian Constitution to the State was debated.
• Jurisdiction of Supreme Court:
  • The Supreme Court of India would initially have only appellate jurisdiction in the State, considering the existence of the Board of Judicial Advisers.
• Modification of Article 352:
  • Article 352, empowering the President to proclaim a general Emergency, was agreed upon but modified to include, “but in regard to internal disturbance at the request or with the concurrence of the Government of the State.”
• Non-application of Articles 356 and 360:
  • Both parties agreed that the application of Article 356, dealing with the suspension of the State Constitution, and Article 360, dealing with financial emergencies, was unnecessary.

Article 370 of the Indian Constitution

• Located in Part XXI titled “Temporary, Transitional, and Special Provisions.”
• Grants authority to the Jammu and Kashmir Constituent Assembly to recommend the extent of the Indian Constitution’s application in the state.
• Revocability of Article 370 Depends on the state assembly’s recommendations, Article 370 could be entirely revoked, leading to the full application of the Indian Constitution in Jammu and Kashmir.
• After the state constituent assembly made recommendations, a presidential order in 1954 specified the provisions of the Indian Constitution applicable to Jammu and Kashmir.
• As the state constituent assembly disbanded without proposing the repeal of Article 370, it was assumed to have become a permanent fixture in the Indian Constitution.
• Article 370 was included in the Constitution to address the concerns of the princely state of Jammu and Kashmir, acknowledging its distinctive history, culture, and autonomy.

Article 35A (1954)

• Article 35A was added to the Indian Constitution in 1954 under Article 370 by a Presidential order.
• Provides “exceptions and modifications” for the benefit of ‘State subjects’ of Jammu and Kashmir.
• Article 370 grants special status to J&K, while Article 35A grants special rights and privileges to permanent residents.
• Fundamental Right to Property is guaranteed in the state despite these special provisions.
• Special rights include those related to public employment, acquisition of immovable property, settlement, and government scholarships.
• Restricts people from outside the state from buying or owning immovable property, settling permanently, or availing state-sponsored scholarships.
• Definition of Permanent Residents can only be changed by the Jammu-Kashmir assembly through a law ratified by a two-thirds majority.

Diverse Landscape and Dynamics of Jammu and Kashmir (J&K)

• Jammu Region:
  • Geographical Composition: A blend of foothills and plains.
  • Demographic Diversity: Inhabited by Hindus, Muslims, and Sikhs.
  • Linguistic Variety: Home to speakers of various languages.
• Kashmir Valley:
  • Geographic Core: The heart of the Kashmir region.
  • Language and Religion: Predominantly Kashmiri-speaking Muslims, with a small minority of Kashmiri-speaking Hindus.
• Ladakh Region:
  • Geographic Features: Characterized by mountainous terrain.
  • Sparse Population: Relatively low population, evenly divided between Buddhists and Muslims.
  • Subdivisions: Comprises Leh and Kargil as its main regions.
• Administrative Divisions:
  • Jammu, Kashmir, and Ladakh are the three primary administrative divisions.
• Regional Perspectives:
  • Jammu and Ladakh:
    • Majority of the populace in Jammu and Ladakh express a desire to remain part of India. However, there are concerns about neglect and backwardness.
  • Autonomy Demands:
    • While desiring to be part of India, there are calls for autonomy in Jammu and Ladakh, reflecting unique regional aspirations.
• Autonomy Demands:
  • Jammu and Ladakh:
    • The demand for intra-state autonomy is robust, paralleling the quest for state autonomy. Grievances often center around perceived neglect.
  • Kashmir Valley Focus:
    • The highest intensity of insurgency and demands for independence are experienced in the Kashmir Valley.
  • Diverse Aspirations:
    • Jammu, Kashmir, and Ladakh exhibit distinct preferences, highlighting the intricate tapestry of social, political, and cultural dynamics within the larger entity of Jammu and Kashmir.

Indian Perspective on Kashmir:

• India asserts that Kashmir legally belongs to it.
• Views Maharaja Hari Singh’s instrument of accession as legally binding, granting India authority over Kashmir.
• Kashmir serves as India’s sole land route to Central Asia.
• Critical for national security, particularly the Siachen Glacier acting as a barrier between Pakistan and China.
• Without control over Kashmir, India faces a potential threat from a combined China-Pakistan force.
• A strong belief that Kashmir in its entirety belongs to India.
• Calls for severe action to protect territorial integrity and address acts of terrorism.

Kashmiri Perspective: A Long-Overlooked Viewpoint

• Many Kashmiris raise doubts about the legality of Maharaja Hari Singh’s accession to India, particularly due to concerns about his failure to adequately represent the diverse religious composition of Kashmir.
• In a 2007 opinion poll by the Centre for the Study of Developing Societies, 87% of respondents in predominantly Muslim Srinagar expressed a desire for independence.
• In contrast, the same poll revealed that 95% of individuals in the primarily Hindu city of Jammu believed that the state should remain a part of India.
• The region experiences persistent conflict involving various actors, including insurgent groups, terrorist organizations, and the armed forces of both Pakistan and India.
• The continuous conflict has led to a heightened military presence, resulting in widespread allegations of human rights violations by all involved parties.
• Accusations of human rights abuses surfaced prominently during the amendment of Article 370, adding to the complexity of the situation.
• The people of Kashmir express deep exhaustion and frustration due to the prolonged state of conflict and violence in the region.
• Both international and domestic entities, such as Amnesty International, actively call for an immediate end to the ongoing human rights abuses in Kashmir.
• The extended internet shutdown, lasting 213 days, has faced widespread criticism as it is perceived as a significant violation of human rights in the region.

Threats and Challenges Faced by Jammu and Kashmir:

• Rising Terrorism:
  • Jammu and Kashmir has witnessed a significant increase in terrorist activities over the years, posing a growing threat to regional stability.
• Deteriorating Security Situation:
  • The security landscape in the region has worsened, marked by a surge in violent incidents and acts of terrorism, creating a challenging environment for both residents and authorities.
• External Support:
  • Pakistani intelligence agencies have been actively providing support, arms, and training to militants operating in Jammu and Kashmir, further exacerbating the security crisis.
• Religious Influence:
  • The insurgency in the region has taken on a religious dimension, with some religious leaders openly encouraging individuals to participate in what they term a “religious war,” adding a complex layer to the conflict.
• Porous Borders:
  • The unresolved territorial disputes and porous borders in Jammu and Kashmir have allowed militants trained in Pakistan to freely enter the region, adding to the security challenges faced by Indian forces.
• Public Discontentment:
  • Grievances stemming from laws like the Armed Forces Special Powers Act (AFSPA) and Public Safety Act (PSA) have contributed to public discontentment, fueling sentiments that add to the overall insurgency.
• Infiltration Across LoC:
  • Infiltration across the Line of Control (LoC) remains a prominent tactic employed by terrorists, with the porous nature of the borders enabling their entry and engagement in various nefarious activities.
• Lone-Wolf Attacks:
  • Recent trends indicate a concerning rise in lone-wolf attacks, characterized by individuals acting independently without the existence of elaborate militant structures, making it challenging for security agencies to predict and prevent new attacks.
• Drones and Weapons:
  • Terrorists in Jammu and Kashmir now leverage drone technology, which facilitates the delivery of weapons and poses a significant challenge for security agencies in controlling the accessibility of arms.
• Public Sympathy:
  • Perpetrators often find refuge in public sympathy, making it difficult for security agencies to apprehend them swiftly after committing crimes, contributing to the overall complexity of maintaining law and order.
• Insider Support:
  • Targeted killings have been facilitated by insider support, with individuals providing militants secret information about potential targets, posing an additional challenge for security agencies in preventing such incidents.
• Communication Setback:
  • The lack of restored communication facilities in the region hampers normalcy and effective coordination, impeding the ability to address emergent situations promptly.
• Resource Division:
  • The allocation of resources between the Union Territory of Jammu and Kashmir and Ladakh presents a critical challenge, requiring careful consideration to ensure equitable development and governance.
• Law and Order Issues:
  • The persistent law and order challenges in the Valley continue to impede normalcy and hinder efforts to establish a secure and stable environment.
• Education and Health Gaps:
  • Inadequate health and education facilities persist in the Union Territory of Jammu and Kashmir, highlighting the pressing need for improved infrastructure to cater to the well-being and education of the population.
• Democratic Deficiency:
  • The absence of provisions for democratic elections raises concerns about the representation and participation of the people in the governance process, hindering the establishment of a robust democratic framework.
• Separatist Influence:
  • The presence and influence of separatist leaders in the Union Territory of Jammu and Kashmir contribute to regional disturbances, challenging efforts to foster unity and stability.
• Unclear Integration Plans:
  • The government’s ambiguity regarding plans to integrate Jammu and Kashmir into the mainstream raises questions about the long-term vision and strategy for the region’s political and social alignment.

Major Changes in 2019

• Article 370 Changes (2019):
  • Announcement by Home Minister Amit Shah on 5 August 2019 in the Rajya Sabha.
  • Presidential order, The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272), issued.
  • Supersedes the 1954 order, removing restrictions on the application of Indian Constitution provisions to Jammu and Kashmir.
  • Abrogation of the separate Constitution of Jammu and Kashmir.
  • Order issued with the “concurrence of the Government of State of Jammu and Kashmir,” implying the Governor appointed by the Union government.
• Jammu and Kashmir Reorganization Act, 2019:
  • Repeal of special status under Article 370 leads to the passage of the Jammu and Kashmir Reorganization Act.
  • Provisions in the act dissolve the state and create two union territories: Jammu and Kashmir (west) and Ladakh (east).
  • Implementation of the reorganization on 31 October 2019, celebrated as National Unity Day.
  • Proposed legislature for the union territory of Jammu and Kashmir under the bill.
  • The Union territory of Ladakh proposed to not have a legislature.

Arguments against the Abolition of Article 370

• Article 370 is considered a permanent clause, having lost its “Temporary Provision” status after the dissolution of the Constituent Assembly of Jammu and Kashmir.
• A Constituent Assembly, tasked with framing a constitution, differs from a Legislative Assembly, which lacks the power to exercise constituent power and, therefore, cannot be equated with the former.
• The authority to repeal Article 370 was questioned, asserting that it required the approval of the now-dissolved Constituent Assembly.
• Arguments were made citing Article 354 of the Constitution, which allegedly prohibits the Parliament from acting as the legislature for Jammu and Kashmir, thereby lacking the power to repeal Article 370.
• The use of Article 356 to bring about irreversible constitutional changes was deemed invalid.
• The President’s power under Article 370(1)(d) was characterized as not a “constituent power” but merely the authority to apply provisions with “modifications and exceptions,” requiring a proposal from the State’s Constituent Assembly for abrogation.
• The bifurcation of the state into two Union Territories – Jammu and Kashmir and Ladakh – was argued to violate Article 3 of the Constitution, limiting the extent to which the federal nature of the Union could be reduced.
• The applicability of the Constitution of J&K was challenged, asserting that the Centre’s actions violated Article 147 of the J&K constitution, emphasizing the parallel and independent nature of the constitutions of J&K and India.

The Supreme court Judgment

• Legal Abrogation of Article 370:
  • The Supreme Court affirmed the legality of the President’s power to abrogate the special status of Jammu and Kashmir under Article 370.
• Temporary Nature of Article 370:
  • The Court clarified that Article 370 was always intended as a temporary provision and not a permanent feature of the Constitution.
• No Internal Sovereignty for J&K:
  • Rejecting the notion of internal sovereignty, the Court concluded that Jammu and Kashmir did not possess internal sovereignty after its accession to India.
• Integral Part of India:
  • The Court emphasized that J&K has consistently been an integral part of India, citing Section 3 of the J&K Constitution and relevant articles in the Indian Constitution.
• Abrogation During President’s Rule:
  • Dismissing claims of illegality, the Court referred to the 1994 Bommai judgment, stating that actions during President’s rule are valid unless done in bad faith or clearly unreasonable.
• Restoration of J&K Statehood:
  • The Union Government was directed to expedite the restoration of statehood for Jammu and Kashmir (excluding Ladakh), with Legislative Assembly elections mandated by September 2024.
• Truth-and-Reconciliation Commission:
  • The Court ordered the establishment of a Truth-and-Reconciliation Commission to address human rights violations in Jammu and Kashmir since the 1980s, involving both state and non-state actors.

Government Initiatives for Jammu & Kashmir Development:

• Prime Minister’s Development Package-2015:
  • Acceleration of 53 projects in various sectors with a total cost of Rs. 58,477 crores.
  • Completion/substantial completion of 29 projects, with the remaining at an advanced stage.
• Industrial Development Scheme:
  • A new Central Sector Scheme initiated in 2021 with a budget of Rs. 28,400 crores.
  • Attracted investment applications exceeding Rs. 54,000 crores, allotting industrial land for projects worth over Rs. 36,000 crores.
• Languishing Projects Programme:
  • Completion of 1193 projects worth Rs. 1984 crores.
  • Includes projects pending for more than 20 years, 15 years, and 10 years.
• Swachh Bharat Mission:
  • J&K declared Open Defecation Free (ODF).
• Beneficiary-Centric Schemes:
  • 100% saturation achieved in 17 schemes, including Saubhagya, Ujala, Ujjwala, and Indradhanush.
• Pradhan Mantri Gram Sadak Yojna:
  • Completion of 17,601 km of roads, connecting 2074 places.
  • Completion and opening of New Banihal tunnel and Chenani Nashri Tunnel.
• Railway Connectivity:
  • Commissioning of Udhampur-Katra, Banihal-Quazigund, and Quazigund-Baramulla railway sections.
• Health and Education Infrastructure:
  • Establishment of 2 new AIIMS, 7 medical colleges, 2 state cancer institutes, and 15 nursing colleges.
  • Functional Indian Institute of Technology (IIT) Jammu and Indian Institute of Management (IIM) Jammu.
  • Increase in the number of government degree/engineering colleges from 96 to 147.
• Power Projects:
  • Revival and progress on power projects with a capacity of about 3000 MW.
• International Flights:
  • Initiation of international flights from Srinagar to Sharjah.
• Agricultural Initiatives:
  • Expansion of High-Density Plantation Scheme to include Mango, Litchi, Cherry, and Walnut.
  • Geographical Indication (GI) tag for Kashmiri Saffron.
• Jal Jeevan Mission:
  • Increase in household tap water connections from 5.75 lakh households (31%) to 10.55 lakh households (57%).
  • Declaration of Srinagar and Ganderbal as Har Ghar Jal districts.
• Irrigation Projects:
  • Completion of major projects like Main Ravi Canal, 3rd stage of Tral lift irrigation scheme, and Comprehensive Flood Management Plan of River Jhelum & its Tributaries–Phase–I.
• Employment Generation:
  • Recruitment in the public sector totaling 29,806 from 2019 onwards.
  • Estimated creation of employment for 5.2 lakh persons through self-employment schemes (August 2019 to June 2022).
• Citizen Protection Measures:
  • Proactive operations against terrorists, identification and arrest of over ground workers, action against banned/supporters organizations, intensified night patrolling, security arrangements, and legal action in cases of terror funding.
• Project Himayat:
  • A program designed for the capacity building and employment of the youth in the region.
• Project Sadhbhavana:
  • Led by the Indian Army, this project aims to assist the youth in realizing their aspirations, contributing to community development.
• Project Umeed:
  • Specifically designed for the empowerment of women, promoting gender inclusivity and economic independence.

Way Forward for Resolving the Kashmir Issue:

• Addressing Trust Deficit:
  • Focus on rebuilding trust among the youth of Kashmir through genuine and sustained efforts, acknowledging and addressing their concerns.
• Reevaluation of Central Government Approach:
  • Reassess the handling of the Kashmir issue by successive Central governments, ensuring a more inclusive and consultative approach in decision-making.
• Equitable Development and Distribution:
  • Implement policies that ensure equitable distribution of development benefits across all regions of Kashmir, preventing marginalization and fostering inclusive growth.
• Countering External Influences:
  • Counter the influence of terrorist and military outfits in Pakistan by engaging with Kashmiri youth and emphasizing the democratic principles of the Indian government.
• Reform in Security Deployment:
  • Reevaluate the presence of the Indian Armed Forces and Central Armed Police Forces (CAPF) in the interiors of Kashmir, ensuring a balanced and judicious approach that respects the rights of the local population.
• Comprehensive Stakeholder Engagement:
  • Initiate a comprehensive dialogue involving all stakeholders, including the diverse political, religious, and cultural groups within Jammu and Kashmir, to understand and address their aspirations.
• Cultural Integration and Autonomy:
  • Promote the integration of Kashmir, Jammu, and Ladakh with India, not just in terms of territory but also in fostering a sense of belonging and ownership. Respect and preserve the plural and secular cultural identity of the region.
• Political Autonomy and Representation:
  • Ensure adequate political autonomy for Jammu and Kashmir within the Indian constitutional framework, granting the region the flexibility to address its unique political aspirations.
• Long-term Vision and Patience:
  • Develop a long-term vision for the resolution of the Kashmir issue, recognizing that meaningful change requires time. Patience and perseverance are crucial in achieving lasting results.
• Inclusive Growth and Participation:
  • Bridge the trust deficit by actively involving Kashmiris in the growth story of India. Create opportunities for economic, educational, and social participation to ensure all Kashmiris feel part of the nation’s progress.
• Regular Monitoring and Adaptation:
  • Establish mechanisms for regular monitoring and evaluation of the situation in Kashmir, adapting strategies based on the evolving needs and aspirations of the local population.
• Cultural and Educational Initiatives:
  • Promote cultural exchange programs and educational initiatives that foster understanding, tolerance, and unity among the diverse communities in Jammu and Kashmir.
• International Diplomacy:
  • Engage in diplomatic efforts to garner international support for a peaceful and just resolution to the Kashmir issue, emphasizing India’s commitment to democratic principles and inclusive governance.

References:
The Hindu
The Indian Express

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Practice Question

Evaluate the Kashmir conflict from the Indian, Kashmiri, and international perspectives. Discuss potential solutions to address the aspirations of the people while ensuring peace and stability in the region.