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Jammu & Kashmir – Paradise Lost

The Princely State of Jammu and Kashmir (J&K), created in 1846 under the Treaty of Amritsar signed between the East India Company and Maharaja Gulab Singh. The Maharaja, the founder of the Royal Dogra Dynasty, became the first king of the Princely State of Jammu and Kashmir by paying 75,00,000 Nanak Shahi rupees (currency of the Sikh Empire) to the British Government and bought Kashmir Valley, Ladakh Virasat (comprising of Baltistan, Kargil and Leh) and added it to Jammu which was already under his rule. Gilgit Virasat (comprising of Gilgit and Pamiri areas) were conquered later in the war against Sikh rule led by Dogra Generals.

Gulab Singh

Maharaja Gulab Singh

Prior to that, the Dogra Dynasty of Jammu was a tributary of the Sikh empire, based in Lahore. In 1822, Gulab Singh, formerly a footman in the Sikh Monarch Maharaja Ranjit Singh’s army, who had distinguished himself in various campaigns, was appointed as the Maharaja of Jammu. The Valley of Kashmir was also a part of the Sikh empire, ruled through a separate governor. Maharaja Gulab Singh successively fought and captured Rajouri (1821), Kishtwar (1821), and through his General Zorawar Singh, Suru Valley and Kargil (1835), Ladakh (1834–1840), and Baltistan (1840). He became a wealthy and influential noble in the Sikh court.

By 1839 Maharaja Ranjit Singh had died and his Empire, was in decline. His 5 years old son Duleep Singh was Maharaja, with his mother Maharani Jind Kaur, ruling on his behalf. During the First Anglo-Sikh war (1845–1846), Gulab Singh sided with the British, leading to a Sikh defeat. In 1846 the Sikhs and British government signed the Treaty of Lahore. As per the treaty the Sikhs had ceded Kashmir, Hazara and Jalandhar Doab to the British and also pay 1.2 million pounds (which was then equivalent to 75,00,000 Nanak Shahi rupees).

Since the Sikhs were unable to pay the 1.2 million pounds, Maharaja Gulab Singh, who had negotiated the surrender of the Sikh army, paid the British government and took procession of Kashmir Valley, Baltistan, Kargil and Leh.

Partition & Standstill Agreement

During partition, the State of Jammu & Kashmir was ruled by Fourth Dogra Monarch Maharaja Hari Singh under the paramountcy of British India. He was a Hindu Dogra king ruling over a predominantly Muslim population. The Kashmiri Muslims did not identify with Muslim community in Pakistan. They people of Kashmir Valley had lived in relative peace with Hindu and Buddist population and they believed that they were different from the Islamic culture of newly formed Pakistan. They called their Sufi Islam and the composite, secular culture – Kashmiriath.

The ethnic composition of the princely state of J&K, at the time was Jammu Virasat (predominantly Hindu & Sikh), Kashmir Valley (predominantly Kashmiri Muslims), Ladakh Virasat (predominantly Buddist) and Gilgit Virasat (predominantly Shia Muslim). This made the Dogra King, Maharaja Hari Singh contiguous to both Dominion of India, and newly formed Dominion of Pakistan, initially decided to remain Independent.

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Maharaja Hari Singh

Before taking the ultimate decision, the Maharaja was faced with a dilemma due to non-cooperation by Sheikh Abdullah, the mass leader of National Conference (NC). There was a large population of J&K who was opposed to the Maharaja and this had resulted in popularity of NC, which demanded his abdication. The Maharaja also believed acceding to either Dominions would have provoked adverse reactions in different Virasats of his kingdom.

In the words of the Maharaja, “Muslims of Kashmir and some from Jammu, who were led by Sheikh Abdullah and leaders of NC, did not want the question of accession to be decided at that stage. They wanted me to part with power in their favour so that they could decide the question independently of me. They made no secret of their views and obstructed me in deciding the question of accession instead of helping me to accede to India; Hindus of Jammu and people of Ladakh were for affiliation with or accession of India.”

Jammu Massacre & Formation of Azad Kashmir Government

In June 1947, about 60,000 ex-army men (mostly from Poonch) had started a no-tax campaign against the Maharaja. The campaign later turned into a secessionist movement following 14 and 15 August, when Poonch Muslims hoisted Pakistani flags. The Maharaja imposed martial law in Poonch, which further angered the Muslims there. With ammunition and personal support provided by the tribals of Pakistan’s NWFP, the situation got more complex.

Weary of this, Maharaja Hari Singh released Sheikh Abdullah, who, in his first very first public meeting, reiterated that “the demand of the Kashmiri is freedom”. He also took a jibe at Jinnah, saying: “How can Mr Jinnah or the Muslim League tell us to accede to Pakistan? They have always opposed us in every struggle. Even in our present struggle (Quit Kashmir against Maharaja), he (Jinnah) carried on propaganda against us and went on saying that there is no struggle of any kind in the state. He even called us goondas.”

According to Kuldeep Nayar veteran journalist and syndicated columnist, “Before India was partitioned, he (Sheikh Abdullah) sent his close associate, Sadiq Sahib, who subsequently became the state Chief Minister, to Islamabad to get the feel of Pakistan. On returning, Sadiq reported to the Abdullah that Pakistan wanted to be an Islamic state. The Sheikh straightaway made up his mind and refused to accept any proposal which did not meet with his ethos of secularism.”

In early October, the Maharaja complained to Pakistan’s Foreign Ministry about the infiltration by tribals hundreds of kilometres inside the border in the Jammu region. Pakistan denied the allegation, but called the Maharaja’s attention to “terror and atrocities perpetrated by J&K forces against the Muslim population of Poonch”. Atrocities which Pakistan suggested, were provoking “spontaneous reactions both within J&K and from ethnic and religious kin across the border”.

Three weeks between October and November 1947 mobs and paramilitaries let by the Dogra Army carried out a programme of expulsion and murder in Jammu. The exact number of causalities is not known but estimates range from 20,000 to 2,37,000 and nearly 5,00,000 forced into displacement in Jammu.

A young lawyer from Poonch and a member of the J&K Legislature, Sardar Ibrahim Khan, emerged as the head of the Poonch Liberation Movement. He united the different factions in Poonch and held contact with some of the key figures of Pakistan’s Muslim League (ML), including Prime Minister Liaquat Ali Khan. He was instrumental in establishing an “Azad Kashmir” government in Rawalpindi.

As relations froze, Pakistan suspected that Maharaja Hari Singh would accede to India. Also, given Sheikh Abdullah’s animosity towards ML, Pakistan took the decision to seize Kashmir by force. Due to the geo-strategic location of the state. Pakistan feared that if Kashmir went to India, Pakistan would cease to be militarily and politically viable.

Standstill Agreement

At this juncture the Maharaja offered to sign Standstill Agreements with both the Dominions. Pakistan immediately signed the Standstill Agreement while India asked for further discussions on its contents.

Identical telegrams were sent by the Prime Minister of J&K to Dominions of India and Pakistan on August 12, 1947. The text is as follows: “Jammu & Kashmir Government would welcome Standstill Agreements with India/Pakistan on all matters on which these exist at present moment with outgoing British India Government. It is suggested that existing arrangements should continue pending settlement of details”.

Reply from Government of Pakistan sent on August 15, 1947: “Your telegram of the 12th. The Government of Pakistan agrees to have a Standstill Agreement and Kashmir for the continuance of the existing arrangements pending settlement of details and formal execution.”

Reply from Government of India: “Government of India would be glad if you or some other Minister duly authorised in this behalf could fly to Delhi for negotiating Standstill Agreement between Kashmir Government and India dominion. Early action desirable to maintain intact existing agreements and administrative arrangements.”

The representative of J&K did not visit New Delhi and no Standstill Agreement was concluded between the State and the Dominion of India.

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Mehr Chand Mahajan

Through the summer and autumn of 1947, India’s Deputy Prime Minister Sardar Vallabhbhai Patel was smartly cultivating the Maharaja. The Maharaja took a series of steps which suggested that he was edging towards India. Foremost among them was his dismissal of Ram Chandra Kak as Prime Minister in mid-August, and his eventual replacement two months later by Mehr Chand Mahajan, on the request of Patel.

Initially Pakistan’s response to the Standstill Agreement was very positive. On August 18, 1947 Jinnah wrote to the Maharaja: “Your Highness, you are the sovereign that alone has power to give accession… you need consult nobody… you should not care about Sheikh Abdullah or National Conference…” The letter was handed over to the Maharaja, in Srinagar, by Jinnah’s private secretary Hasan Khurshid.

But by August 24, 1947 the tone had changed. Dawn, the newspaper Jinnah had founded, wrote an Editorial piece warning the Maharaja: “The time has come for Maharaja of Kashmir that he must take his choice and choose Pakistan. Should Kashmir fail to join Pakistan, the gravest possible trouble will inevitably ensue.” This warnings alarmed the Maharaja, and charges and counter-charges were exchanged between Pakistan and J&K. Few weeks later Pakistan cut off essential supplies such as petrol, sugar and salt to the state, . It also stopped trade in timber and other products, and suspended train services to Jammu. This was a violation of the Standstill Agreement.

On October 14, 1947, Dawn, had even carried as its main news item an article with the headline: “Kashmir’s accession to Indian Dominion regarded as a foregone conclusion.” 

Operation Gulmarg & Instrument of Accession

Watching the prospects of Kashmir slipping out of its hand and sensing India could play foul, Pakistan launched ‘Operation Gulmarg’ by mobilising tribals from the NWFP on October 22, 1947. About 2,000 tribesmen, fully armed with modern weapons and under the direct control of Pakistan Army generals, entered Muzaffarabad in motor-buses and on foot. As the invaders captured Uri and Baramulla with minimal resistance from the Maharaja’s forces. The invaders made rapid progress towards Srinagar.

The Maharaja’s forces were 50 per cent Muslim and 50 per cent Dogra and the Muslim elements had revolted and joined the Pakistani forces. The Prime Minister of J&K made two formal requests to the Pakistani Government to stop the continuous border raids, but Pakistan resolutely denied both its support to the raiders and their actions.

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Tribal irregulars from the North West Frontier bound for Kashmir, 1947

By October 24, 1947, the intruders massacred about eleven thousand residents of Baramulla and destroyed the Mohra power station that supplied electricity to the capital city of Srinagar. Pakistan had hoped that if the tribals conquered the Kashmir Valley before the Instrument of Accession to India took place, issue of accession would become irrelevant and the process of Jammu and Ladakh could be dealt with from a position of strength.

The panic-stricken Maharaja made an appeal to India to come to its rescue, the same day. The Maharaja’s two letters to Prime Minister Jawaharlal Nehru and Sardar Patel seeking military help, was carried by deputy Prime Minister Ram Lal Batra with the proposal of accession.

This was followed by an emergency meeting of India’s Defence Committee (headed by Mountbatten and including Nehru, Patel, Defence Minister Baldev Singh, Minister without portfolio Gopalaswami Ayyangar, and the British commanders-in-chief of the army, air force and navy) which concluded that “the most immediate necessity was to rush arms and ammunition already requested by the J&K government, which would enable the local populace in Srinagar to put up some defence against the raiders.

The Defence Committee sent Secretary of the Ministry of the States V. P. Menon and Indian Army’s first Lieutenant Colonel Sam Manekshaw, to Srinagar to “make an on-the-spot study”, the same day. On October 24, 1947, Mahajan the Prime Minister of J&K, apprised V. P. Menon and Sam Manekshaw “of the perilous situation and pleaded for the Government of India to come to the rescue of the State”. They returned to New Delhi on October 25, 1947, with their impressions, and suggested sending troops to Kashmir, pointing out the “supreme necessity to save Kashmir from raiders”.

The Defence Committee sent Secretary of Ministry of States V. P. Menon and India’s first Fiend Marshal in the Indian Army, Sam Manekshaw, to Srinagar to make an “on-the-spot study” the same day. On October 24, 1947, Mahajan, apprised V. P. Menon and Sam Manekshaw “of the perilous situation and pleaded for the Government of India to come to the rescue of the State”. They returned to New Delhi on October 25, 1947, with their impressions, and suggested sending troops to Kashmir, pointing out the “supreme necessity to save Kashmir from raiders”.

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V. P. Menon

On Sunday, October 26, 1947, Mahajan, flew into Delhi and V.P. Menon took Mahajan for a breakfast meeting with Nehru and Patel. Mahajan pleaded for an immediate Indian military intervention to save Srinagar. Nehru appeared to equivocate, to which Mahajan in his autobiography “Looking Back” recalled responding: “Give army, take accession and give whatever powers you want to give to the popular party, but the army must fly to Srinagar this evening, otherwise I will go and negotiate terms with Mr. Jinnah as the city (Srinagar) must be saved.”

Nehru was visibly upset at Mahajan’s proposal of even contemplating the idea of talking to Jinnah and told him to leave the room. As he walking out of the room, Patel reportedly held him back and said in his ear, “Of course, Mahajan, you are not going to Pakistan”. Sheikh Abdullah, who was overhearing the entire exchange from an adjoining room, sensing a critical moment, sent in a slip of paper to Nehru. Nehru read it and said that “what I (Mahajan) was saying was also the view of Sheikh Sahib,” recollects Mahajan in his book.

At the Defence Committee meeting later that morning, Menon and Manekshaw reported on the situation in Srinagar. The Committee decided that in spite of the grave risks underlined by the army’s Commander-in-Chief, General Lockhart, an infantry battalion would be flown to Srinagar the next morning, October 27, 1947. The States Ministry was directed to prepare an Instrument of Accession for the Maharaja and a letter emphasising that its acceptance would be temporary pending the ascertaining of the will of the people.

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From this point on, the story of J&K’s accession to India becomes clouded by conflicting accounts and interpretations. The issue in dispute is whether Maharaja signed the document acceding to India before or after the beginning of India’s military airlift to Srinagar on the morning of Monday, October 27, 1947. Lord Mountbatten’s signature on the document accepting the accession is dated October 27, 1947. What makes the issue of the Maharaja’s signature of continuing relevance is that India has built its case on J&K around a version of events that insists that the instrument of accession was signed before the airlift of troops. If that is not true, then India’s case in the international stage, will be diminished.

V. P. Menon in his book “Integration of the Indian States” published in 1956 put an end to the controversy. He recounted how, shortly after the Defence Committee meeting in Delhi on the morning of Sunday, 26 October: “I flew to Jammu to accompanied by Mahajan. On arrival at the Palace I found it in a state of utter turmoil with valuable articles strewn all over the place. The Maharajah was asleep; he had left Srinagar the previous evening and had been driving all night. I woke him up and told him of what had taken place at the Defence Committee meeting. He was ready to accede at once. He then composed a letter to the Governor-General describing the pitiable plight of the State and reiterating his request for military help… With the Instrument of Accession and the Maharajah’s letter I flew back at once to Delhi. Sardar [Patel] was waiting at the aerodrome and we both went straight to a meeting of the Defence Committee which was arranged for that evening… It was further decided that an infantry battalion should be flown to Srinagar the next day”.  

The letter that accompanied the Instrument of Accession read: “With the conditions obtaining at present in my State and to great emergency of the situation as it exists, I have no option but to ask for help from the Indian Dominion. Naturally they cannot send the help asked for by me without my State acceding to the Domination of India. I have accordingly decided to do so and I attach the Instrument of Accession for; acceptance by your Government. The other alternative is to leave my State and my people to diabolical killers and beasts. On this basis, no civilised Government can exist or be maintained. The alternative I will never allow to happen as long as I am Ruler of the State and I have life to defend my country. I may also inform your Excellency’s Government that it is my intention at once to set up an interim Government and ask Sheikh Abdullah to carry the responsibilities in this emergency with my Prime Minister.” – Maharaja Hari Singh, The Amar Mahal Palace Jammu, dated 26.10.1947 (Excerpt from his letter)

But Mehr Chand Mahajan believes otherwise. In his narrative in his autobiography “Looking Back” published in 1963 “Around dinner time that day (October 26, 1947) Nehru sent him (Mahajan) a message that he should fly to Jammu with Menon and inform Hari Singh of the cabinet decision besides getting his signatures on certain supplementary documents about the accession. ‘I frankly informed him that I was not prepared to go to Jammu till I got news from my aerodrome officer at Srinagar that the Indian forces had landed there. Panditji did not insist and said: you can fly to Jammu next morning’… The army did land in Srinagar and Mahajan got the message from Srinagar at 9 am on October 27…. On receipt of this message, I flew to Jammu with Mr V. P. Menon… After some discussion, formal documents were signed which Mr Menon took back to New Delhi,”

Does that mean the 28 sorties of Dakotas that landed in Srinagar Airport preceded the signing of the Instrument of Accession. Mehr Chand Mahajan who was the Prime Minister of Jammu and Kashmir and third Chief Justice of India says the documents were signed only after the troops landed.

Interestingly, Prem Shanker Jha has a different version. Author and columnist Prem Shanker Jha in his book “Kashmir 1947: The Origins of a Dispute” published in 2003 believes that Hari Singh signed accession papers in Srinagar on October 25. He relies totally on Manekshaw’s version while dismissing accounts of Mahajan and Menon as inconsistent and fleeting. Sam Manekshaw who accompanied V. P. Menon to Srinagar and back on October 25 remembers: “Eventually the Maharaja signed the accession papers and we flew back in the Dakota late at night… I did not see the Maharaja signing it, nor did I see Mahajan. All I do know is that V. P. Menon turned around and said, ‘Sam we have got the Accession’. He says Menon, handed over ‘the [accession] thing to Mountbatten at the start of or just before the meeting of the Defence Committee on October 26 morning.” 

So there are three dates – October 25, 26 and 27. Jha says October 25,1947 but it is unofficial. V. P. Menon says October 26, 1947 but lacks corroborative evidence because Maharaja might have been travelling the whole day. Mahajan says October 27, 1947 after the troops landed, but this is in conflict with the officially stated records.

On October 27, 1947 the Governor General of India, Lord Mountbatten signed the Instrument of Accession of J&K with a remark, “In consistence with their policy that in the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State, 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 the State’s accession should be settled by a reference to the people”.

Analysts believe by the term “reference to the people”, Mountbatten meant plebiscite. {Plebiscite had already been conducted in the case of accession of the Princely State of Junagadh. The plebiscite conducted in December 1947, had approximately 99.95% of the people chose to be part of Dominion of India over Pakistan}. But those advocating Plebiscite should remember that in the election held to the 75 member assembly of Indian administered Kashmir, NC and parties which were Pro India won elections in 1951 – 75/75 seats (75 unopposed), 1957 – 69/75 (47 unopposed) and 1962 – 68/74 (33 unopposed). India has conducted a total of 11 assembly elections in J&K since 1951 and 12 Parliamentary elections since 1967.

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Indian army landing at Srinagar Airport on October 27, 1947.

On October 30, 1947, Sheikh Abdullah was appointed the head of the administration with Mahajan as Prime Minister. The Indian Army under the command of Lt. Col. Dewan Ranjit Rai, successfully repulsed the tribal raiders. The NC volunteers aided the Indian Army in its campaign to drive out the Pathan invaders. For most of the Indian Army soldiers Kashmir was an unfamiliar terrain.

Pakistan has continued to question the legal status of Instrument of Accession at several occasions, claiming that Maharaja Hari Singh was not legally competent to decide matters concerning his State as his power had already been arrogated by popular revolts. But legally the accession of the state of J&K to India, completely excludes Pakistan. In spite of that Pakistan tries to manifests itself as a self-styled protector of the rights of people of J&K (administered by India), while it illegally administers almost one third of the Princely State of J&K (Azad Kashmir and Gilgit-Baltistan).

First Kashmir War

Realising that Pakistan was cheated out of Kashmir, and that he was outwitted by both Mountbatten and Nehru, the Governor-General of Pakistan Mohammed Ali Jinnah resolved to respond to these moves by direct military action. He asked British Commander-in-Chief General Douglas Gracey, to send the Pakistani Army and take over J&K. But General Gracey refused to follow this order and told Jinnah that he could not do it, without consulting the Supreme Commander of all British forces remaining in India and Pakistan, Field Marshal Claude Auchinleck. The British military officer threatened him that if compelled to carry out the order, he would withdraw all technical British forces from the Pakistan Army. Moreover, he telephoned Field Marshal Auchinkeck in Delhi, to brief him of the development.

{By August 15, 1947 the British government had completed a complicated division of the British India’s Armed forces. Field Marshal Auchinleck, who was now designated Supreme Commander-in-Chief and Chandulal Madhavlal Trivedi, an Indian civil servant, oversaw the division of the forces. Many British officers stayed on to assist in the transition, including General Robert Lockhart, India’s first C-in-C, and General Frank Messervy, who became Pakistan’s first C-i-C. General Messervy, had opposed the tribal invasion in a cabinet meeting with Prime Minister Liaquat Ali Khan. After that he had left the command of the army and had proceed on leave. His view was that British officers who were trained together would be fighting each other in the war front. General Gracey was appointed as acting C-i-C.

Earlier in June 1947, the War Department of the British administration in India had began planning the dividing of the ~400,000 men strong British Indian Army. The Armed Forces Reconstitution Committee (AFRC) under the chairmanship of British Field Marshal Claude Auchinleck had devised the formula to divide the military assets between India and Pakistan with ratio of 2:1, respectively. After the division of Armed Forces around 2,60,000 men, mainly Hindus and Sikhs, went to India. And 1,40,000 men, mainly Muslims, went to Pakistan. The Brigade of Gurkhas, recruited in Nepal, was split between India and Britain.}

On October 28, 1947, Field Marshal Auchinleck flew to Pakistan and met Jinnah. He told Jinnah that J&K had decided to merge with India, and New Delhi was well within its rights to send military aid at Maharaja’s request. Jinnah subsequently withdrew the order. He also accepted Auchinleck’s proposal for and emergency meeting between Jinnah, Mountbatten and Nehru. Mountbatten alone came to Lahore on November 1, 1947; Nehru became “sick” and Jinnah was outwitted again. Not authorised to make any commitments, Mountbatten could reach no decision with Jinnah. The start of the perennial deadlock had begun.

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Liaquat Ali Khan, Lord Mountbatten and Mohammed Ali Jinnah at Lahore

The interim Government was instituted by a proclamation made by the Maharaja on March 5, 1948. A Council of Ministers with Sheikh Abdullah as the Prime Minister was constituted to conduct the administration of the State. The Council was to function on the principle of joint responsibility. {Mahajan, went onto serve as one of Independent India’s first Supreme Court judges, eventually landing the office of Chief Justice on January 4, 1954}.

Surprisingly, General Gracey, who had defied Jinnah’s order in October 1947, recommended to Pakistan government on April 20, 1948 that India was about to launch a general offensive in Kashmir, and recommended that it is imperative that the Indian Army is not allowed to beyond the general line Uri-Poonch-Naoshera. In light of Gracey’s evaluation, Pakistan moved its forces into J&K and thus the full-fledged war began.

The Indian troops secured Jammu, Srinagar, Uri and Kashmir Valley itself during the initial few weeks. However Poonch and Gilgit remained elusive but the intense fighting flagged with the onset of winter. Winder made much of the state impassable. In the meanwhile diplomatic efforts were going on in the United Nations. {UN was in its infancy, having born on October 24, 1945 and was just a 3 year old grouping of Nations formed after World War II }.

On June 9, 1949, Sheikh Abdullah and Maharaja Hari Singh agreed that J&K should remain united with India with the maximum possible autonomy. Mahajan in his book “Looking Back” says “Abdullah was completely against the idea of merging the state with Pakistan since the then largely secular Kashmiri populace did not buy Jinnah’s famous ‘two-nation’ theory, which envisioned the creation of two separate nations (India and Pakistan) along religious lines.”

On June 20, 1949, through a proclamation, the Maharaja announced his decision to abdicate the State on grounds of health and appointed his son, Yuvraj Dr. Karan Singh, as Regent of J&K. Hari Singh was hurriedly forced into exile and spent his final days in Mumbai, although he remained titular Maharaja of the state until 1952, when the monarchy was abolished. He passed away on April 26, 1961 and was cremated in Chandanwadi in Mumbai. His ashes was immersed in River Tawi.

Ceasefire & UN Resolution

After protracted negotiations at the United Nations Commission for India and Pakistan (UNCIP) between the two countries and recognising the degree of international attention brought to bear on the dispute, Nehru declared a ceasefire on January 1, 1949. The terms of the cease-fire, laid out in a UN Commission resolution on August 13, 1948, were adopted by the Commission on January 5, 1949. It was three-part resolution, amending the UN Security Council Resolution 47.

  • In the first step, Pakistan was asked to withdraw all its nationals that entered Kashmir for the sake of fighting.
  • In the second step, India was asked to progressively reduce its forces to the minimum level required for law and order.
  • In the third step, India was asked to appoint a plebiscite administrator nominated by the United Nations who would conduct a free and impartial plebiscite.

Shashi Tharoor, who was Under Secretary General of United Nations in his book “An Era of Darkness”: The British Empire in India” says : “The UN Security Council Resolution 47 was adopted para by para sequentially, not as a whole and it was announced at the time its obligations were to be implemented in sequence.”

By the end of the war, India was able to clear the regions of Kashmir Valley, Jammu and Ladakh from invading forces. India gained control of about two-thirds of erstwhile Princely state of J&K and Pakistan, the remaining one-third. Indian losses in the war is estimated to totalled 1,104 killed and 3,154 wounded and Pakistani losses, about 6,000 killed and 14,000 wounded.

While Nehru had the legal authority to exercise the legality of the Instrument of Accession vis-à-vis the whole of J&K (including the parts which are currently under administration of Pakistan), it is unclear why he didn’t and chose to take the issue to UN arbitration. Some sources claim that Prime Minister Nehru hoped that the International community would recognise Pakistan’s aggression and intervene to stop further bloodshed.

Special Status for J&K – Article 257 and Article 370

Article 257

By introducing Article 257 Special status was guaranteed for the people of the State of J&K in the Pakistani Constitution. It defines how the relation the State of J&K and Pakistan would be determined: “When the people of the State of J&K decide to accede to Pakistan, the relationship between Pakistan and the State shall be determined in accordance with the wishes of the people of that State”. Pakistan Administered Kashmir consists of two regions namely Gilgit-Baltistan (29,814 sq miles), formerly known as Federally Administered Northern Areas (FANA) and Azad Jammu and Kashmir (AJK; 4,144 sq miles).

However Gilgit-Baltistan is governed by Gilgit-Baltistan (Empowerment and Self Governance) Order 2009, which was issued by the President of Pakistan after informal consultations with local leaders. And AJK is being governed under the Interim Constitution Act of Azad Jammu and Kashmir Act 1974, which was passed by Legislative Assembly of AJK and approved by the Government of Pakistan.

Pakistani Constitution claims that both these regions are autonomous. But practically, the real power for Gilgit – Baltistan is controlled by a council based in Islamabad with the Prime Minister of Pakistan as its Chairman. Likewise, AJK is vested in the Kashmir Council based in Islamabad, of which the Prime Minister of Pakistan is the head.

The Maharaja of Jammu and Kashmir had granted special provisions to the people of his Princely State, one of which was ‘the State Subject Rule’. The State Subject Rule protected the status of the indigenous people since the rule allowed only the natives (also referred to as State-Subjects) to acquire permanent residence in the State. Pursuant to this rule, the natural resources of the State were the property of the indigenous people who had the right to utilize them without any outside interference.

Prior to the First Kashmir War (1948) between India and Pakistan, Gilgit Baltistan was part of the erstwhile Princely State of Jammu and Kashmir and is currently the northernmost administrative territory of Pakistan which became a separate administrative unit in 1970, known as Federally Administered Northern Areas. The Government of Pakistan, under the leadership of President Zulfiqar Ali Bhutto, abrogated the State Subject Rule in Gilgit Baltistan in 1974, which resulted in demographic changes in the territory affecting the local culture of the territory and in 2009 it was granted limited autonomy and was renamed from the Federally Administered Northern Areas to Gilgit-Baltistan via the Self Governance Order signed by Pakistani President Asif Ali Zardari, making it de-facto a Province of Pakistan without constitutionally becoming part of Pakistan.

There is contradiction between the Constitution of Pakistan and the Interim Constitution of Pakistan Administered Jammu and Kashmir Act 1974; Article 257 states that “people of J&K are free to define their relationship with Pakistan if (and after) they decide to accede to Pakistan”. However as per the Azad Jammu and Kashmir Interim Constitution Act of 1974, “no person or political party in AJK is permitted to propagate against, or take part in activities prejudicial or detrimental to, the ideology of the State’s accession to Pakistan. No person can assume office unless he/she takes the oath of Jammu and Kashmir’s accession to Pakistan and nobody can be appointed to any government job unless he/she expresses loyalty to the concept of J&K’s accession to Pakistan”.

So in conclusion even though Pakistan has constitutionally provided special status to the state of J&K in Gilgit-Baltistan the Government of Pakistan abrogated the special status the State-Subject Rule in 1974. Although ‘Azad’ means “free in Urdu” the residents of AJK are anything but that. Pakistani authorities govern AJK government with tight controls on basic freedoms.

Article 370

The Constituent Assembly of India had 299 representatives, including 15 women. On August 15, 1947 the Constituent Assembly of India became India’s First Parliament. 28 members of the Muslim League joined the Indian Assembly and 93 members were later nominated from the princely states. Some members of the Constituent Assembly withdrawn to Karachi to form Constituent Assembly of Pakistan.

In July 1949, Sheikh Abdullah and three others were nominated by the Maharaja Dr. Karan Singh to the Constituent Assembly of India. They negotiated the special status of J&K, leading to the adoption of Article 370. (It was Article 306 A while being debated in the Constituent Assembly.) The negotiations were carried out over several months between Deputy Prime Minister Sardar Patel, N Gopalaswami Ayyangar (Cabinet Minister without portfolio and former Dewan of Kashmir) and Sheikh Abdullah and others.

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Maharaja Hari Singh and Sardar Vallabhai Patel

At the time of accession to India, all the Princely States had given the Dominion of India only three subjects – Defence, Foreign Affairs and Communications. All other subjects would be in the state’s domain. The Princely states were invited to take their seats in the Constituent Assembly which was framing the Indian Constitution. With India becoming a Republic on January 26, 1950, the Constitution of India laid down provisions for other princely States as developed constituent units of the Union. In the case of other Indian States “Instruments of Accession became obsolete in the new Constitution” as the States were integrated with the Federal Republic by signing “Merger Agreements”, with no such condition that was recently guaranteed in the Instrument of Accession, for becoming Units of the Republic. In view of them, the Article 370 was incorporated in the Constitution.

The first meetings were held during May 15-16, 1949 at Patel’s residence in presence of Nehru too. Ayyangar, who eventually drafted Article 370, spoke in the Constituent Assembly on October 17, 1949: “We have also agreed that the will of the people, through the instrument of the Constituent Assembly, will determine the Constitution of the State as well as the sphere of the Union’s jurisdiction of the state… You will remember that several of these clauses provide for the concurrence of the J&K state. Now these relate particularly to the matters not mentioned in the Instrument of Accession and it is one of our commitments to the people and the Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly which may be called in the state for framing its Constitution.”

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Sheikh Abdullah, Jawaharlal Nehru and Gopalaswami Ayyangar

Later, Abdullah insisted that the Article should not extend the Fundamental Rights and Directive Principles to J&K, but leave it to the state’s Constituent Assembly to decide whether or not to adopt them. Patel was unhappy but allowed Ayyangar to proceed. Nehru was abroad then; Patel wrote to him on November 3, 1949: “After a great deal of discussion, I could persuade the [Congress] party to accept”. When Sheikh Abdullah threatened to resign from the Constituent Assembly, Patel asked Nehru to get him back on board.

Even though Patel was initially was opposed to integration of J&K with India, Article 370 is considered the best strategic negotiation done by Patel and Ayyanga. Patel’s lukewarmness about J&K is indicated in a letter that morning to Baldev Singh, India’s first Defence Minister, Patel had indicated that “if (J&K) decides to join the other Dominion, I would accept the fact”.

A special provision made in case of Kashmir was explained by Ayyanga, “It would not be so in the case of Kashmir, since a part of that particular State is still in the hands of the enemies”. When Ayyangar prepared a draft letter from Nehru to Abdullah summarising the broad understanding reached, he sent it to Patel with a note: “Will you kindly let Jawaharlalji know direct as to your approval of it? He will issue the letter to Sheikh Abdullah, only after receiving your approval.” So unlike what the RSS and BJP tries to make it look Sardar Patel was fully on board with Article 370. In fact he was the architect of it.

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Jammu and Kashmir Map

State of J&K was to have its own Constitution, Flag in addition to the Union Flag and several other provisions like the State Subject rule which only allows State Subjects of the State to purchase immovable property in J&K and acquire permanent residence. Regent of J&K Dr. Karan Singh, son of Maharaja Hari Singh was made Sadar-e-Riyasat (Head of State) and Sheikh Abdullah was the Prime Minister of Kashmir at Independence.

Article 370 was put in place to preserve the autonomy of J&K, leaving the decision-making powers with the state’s constituent assembly. In 1951, the first elections for the J&K Constituent Assembly were held which later elected a body of representatives to formulate the Constitution of J&K. The Constituent Assembly of J&K was to have a nominal membership of 100 members, of which 25 seats were allocated to Azad Kashmir under Pakistani control (which were never filled). Of the remaining 75 seats, Kashmir was allocated 43 seats, Ladakh 2 seats and Jammu 30 seats.

The J&K Constitution was adopted on November 17, 1956, and came into effect on January 26 1957. And on July 14, 1954, the Constituent Assembly of J&K decided that Article 370, which was “temporary” in nature shall remain in force, making it in essence a permanent feature of the Indian Constitution.

Systematic Dilution of Article 370

Spirit of Instrument of Accession: At the time of accession to India, like all other princely states J&K had given the centre only three subjects—defence, foreign affairs and communications. All other subjects would be in the state’s domain. An amendment made to the Constitution of India does not apply to the State unless it is extended by a Presidential order. This can be done only with the concurrence of the State Government. But India’s relentless bureaucratic efforts have since made several encroachments in the name of balanced rules and regulations. The fact is that New Delhi unilaterally extended several Indian laws without the state assembly’s support. But New Delhi wanted to usurp all the powers and unilaterally extend its authority to other subjects. Totally 44 amendments were made since Article 370 came into force on January 26, 1957 and until its abrogation on August 5, 2019, but all of them has been with the concurrence of the J&K state legislature. Sheikh Abdullah found the extension of the Supreme Court’s authority to be beneficial, he gladly supported it. Some laws which the Sheikh did not like were dropped. Many stayed because the Sheikh did not find them restricting the state’s authority. By and large the “consent of people of the state” through its Legislative Assembly was followed. 

Dismissal & Arrest of Sheikh Abdullah: On 8 August 1953, Sheikh Abdullah was dismissed as the Prime Minister of J&K by the then Sadr-e-Riyasat Dr Karan Singh, on the grounds that he had lost the support of the cabinet. He was not given a chance to prove his majority. According to Adbullah “it was when he opposed the centre’s unilateral extension of authority over other subjects he was dismissed even though he had a majority of assembly members with him.” B.N. Mullicks’ in his book “My Years with Nehru” said that “Sheikh Abdullah’s dismissal and arrest were engineered by the central government headed by Prime Minister Jawaharlal Nehru”.

Sheikh Abdullah along with Mirza Afzal Beg and twenty-two others, were accused of conspiracy against the state for allegedly espousing the cause of an independent J&K and were arrested soon after for anti-national activities. The ‘Kashmir Conspiracy Case’ was framed in 1958 and the trial began in 1959. After two months’ internment in Ooty, Sheikh Abdullah was taken to the Kohinoor bungalow, a few miles outside Kodaikanal, and remained under house arrest for more than a decade.

Sheikh Abdullah called lovingly as “Sher-e-Kashmir” (Lion of Kashmir) was the tallest leader of J&K. He had played a key role in integration of J&K to Indian and he was the democratically elected leader. The people of Kashmir saw this as blatant interference by New Delhi, using the Sadr-e-Riyasat. People looked at the Governments of Bakshi Ghulam Mohammad (who staged a coup against Abdullah), Khwaja Shamsuddin (in whose term the the Prophet’s Relic was stolen from the Hazratbal Shrine) and Ghulam Mohammed Sadiq (in whose term the when the position was renamed to Chief Minister) as Puppet governments. During the long years of imprisonment of Sheikh Abdullah, his loyalists split off from the NC party and formed a Plebiscite Front. The remaining members of the NC merged their party with the Congress.

Kashmir Conspiracy Case: On April 8, 1964, the state government dropped all charges in this infamous ‘Kashmir Conspiracy Case’. Sheikh Abdullah was released and returned to Srinagar to an unprecedented welcome by the people of the Valley. After his release he was reconciled with Nehru. Nehru requested Sheikh Abdullah to act as a bridge between India and Pakistan and make President Ayub Khan agree to come to New Delhi for talks for a final solution of the Kashmir problem. This paved the way for Sheikh Abdullah’s visit to Pakistan to help broker a solution to the Kashmir problem. Sheikh Abdullah did mediate and set up a meeting between Nehru and Ayub Khan. But before the proposed meeting between Ayub Khan, Nehru passed away in May 27, 1964. After Nehru’s death Abdullah was interned from 1965 to 1968 and exiled from Kashmir in 1971 again for 18 months.

Dissolution of Constituent Assembly: The Constituent Assembly of J&K was dissolved on January 26, 1957, based on Mir Qasim resolution it adopted and ratified on November 17 1956. The Constituent Assembly of J&K State had the legal authority to recommend the articles of the Indian constitution to be applied to the state or to abrogate Article 370 altogether. The Article was drafted in Part XXI of the Indian Constitution: Temporary, Transitional and Special Provisions. The Constituent Assembly of J&K, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether. After consultation with the state’s Constituent Assembly, the 1954 Presidential Order was issued, specifying the articles of the Indian constitution that applied to the state. With the dissolution of the Constituent Assembly in on January 26 1957, without recommending the abrogation of Article 370, the article became un-amendable and hence a permanent feature of the Indian Constitution. This was also the October 11, 2015 J&K High Court ruling and April 3, 2018,  Supreme Court of India ruling on Article 370 abrogation. 

Reconciliation Phase: After the war with Pakistan in 1971, and the creation of Bangladesh, Sheikh Abdullah realised that for the survival of this region there was an urgent need to stop confrontational politics and resolve issues by a process of reconciliation and dialogue. When Nehru’s daughter, Indira Gandhi, came to power, the Sheikh started talks with her for normalising the situation in the region, and came to an accord called the 1974 “Kashmir Accord”, by giving up J&K’s demand for a plebiscite (people’s vote) in lieu of the people being given the right to self rule by a democratically elected government rather than the puppet government which till then had ruled the state.

This had resulted in complete dilution of Article 370. NC won an overwhelming majority in the subsequent elections and re-elected Sheikh Abdullah as the Chief Minister in 1975. He remained as Chief Minister till his death in September 8, 1982. After his death his son Farooq Abdullah took over as Chief Minister. On July 2, 1984 Ghulam Mohammad Shah brother-in law of Farooq Abdullah toppled the government with the help of 26 INC MLAs. It was termed as a political “coup” engineered by Indira Gandhi. Farook Abdullah returned to power in Nov 1986, with Congress support, after understanding with Rajiv Gandhi that INC and the NC would form an alliance for the 1987 state elections. The alliance won again Farooq Abdullah became CM but was dismissed in January 1990. He again came back as CM in 1996 election and became the single largest party in 2002 elections, when PDP and INC shared CM roles.

Appointment of Governors: The Governor of the State is to be appointed only after consultation with the elected Chief Minister of the State. At the first place the position is Sardr-e-Riyasat and not Governor. Even in the case of the position of Governors the Government of India never consulted the Chief Minister of Kashmir except in the case of Dr. Karan Singh and Bhagwan Sahay. On January 19, 1990 in order to undermine his political rival Farooq Abdullah who at that time was the CM of J&K, the Minister of Home Affairs Mufti Mohammad Sayeed convinced Prime Minister V. P. Singh to appoint Jagmohan Malhotra, a former bureaucrat, as the Governor of J&K. Abdullah resented Jagmohan who had been appointed as the governor earlier in April 1984 as well and had recommended Farooq Abdullah’s dismissal to Rajiv Gandhi in July 1984. Abdullah had earlier declared that he would resign if Jagmohan was made the Governor. However since the V. P. Singh government went ahead with the appointment, Abdullah on the same day, resigned. Jagmohan suggested the dissolution of the State Assembly.

Political Instability of 1980s: The political climate in J&K was also not stable in the 1980s. Sheikh Abdullah had passed away. His son Farooq Abdullah’s government was toppled by his brother in law G. M. Shah on July 2, 1984. Gul Shah had defected from NC along with 12 party MLAs bringing down the government. This political “coup” was engineered by Indira Gandhi through the then Governor Jagmohan. The new administration, which did not have people’s mandate, turned to Islamists and opponents of India, to gain some legitimacy through religious sentiments. This gave political space to Islamists who previously lost overwhelmingly in the 1983 state elections.

In 1986, CM of J&K G. M. Shah decided to construct a mosque within the premises of an ancient Hindu temple inside the New Civil Secretariat area in Jammu to be made available to the Muslim employees for ‘Namaz’. People of Jammu took to streets to protest against this decision, which led to a Hindu-Muslim clash. In February 1986, Gul Shah on his return to Kashmir valley retaliated and incited the Kashmiri Muslims by saying Islam khatrey mein hey (Islam is in danger). As a result, Kashmiri Pandits were targeted by the Kashmiri Muslims. Many incidents were reported in various areas where Kashmiri Hindus were killed and their properties and temples damaged or destroyed. The worst hit areas were mainly in South Kashmir, Sopore, Vanpoh, Lukbhavan, Anantnag, Salar and Fatehpur. Gul Shah government was dismissed on March 12, 1986 by then Governor Jagmohan.

Increased Militancy: J&K witnessed sporadic periods of violence post the Independence of India, but never an organised insurgency till 1989. The self-styled movement was influenced by few occurrences around the globe, like the defeat of the Soviet Union by the Afghan Mujahedeen, supported by US and Pakistan. Pakistan which was active in the Afghan theatre mobilised the war-addicted Afghan Mujahedeen, having no more wars to fight, to the Valley of Kashmir. The year also witnessed the banning of the book “The Satanic Verses” (published in 1988), authored by Salman Rushdie, writer of Kashmiri origin, by Iranian religious leader Ayatollah Khamenei claiming it to be blasphemous. Many Kashmiri Muslims protested in support of banning the book.

Pakistan used Kashmiri religious parties and their militant squads like JKLF as a front to escalate armed attacks in J&K and succeeded in injecting the ideology of communalism in the Valley of Kashmir. Wahhabism became the answer to Sufi Islam and the composite culture in Kashmir. Bitten by the loss of Bangladesh (which was East Pakistan), and also being a country which was ruled by Army more that civilian governments its objecting was to disintegrate India. For over 3 decades now Pakistan army and the ISI – known as the ‘deep state’ – waging a proxy war against India as part of their strategy of ‘bleeding India through a thousand cuts’. Pakistan’s motive is to annex and not to liberate J&K, is corroborated by the fact that majority of terrorist and separatist group’s objective remained merger with Pakistan.

Allegations of 1987 Election Rigging: The election were held on March 23, 1987. Nearly 75 percent of the voters participated, highest recorded participation in the state. Nearly eighty per cent of the people in the Valley voted. There were allegations of mass rigging but the Rajiv Gandhi government and the Central Election Commission remained mute spectators. Governor Jagmohan is reported to have been appalled at what was being done, but he said that he was ordered by the central government in Delhi not to interfere.

Many see this rigged election as a cause of militancy in Kashmir as the joining together of Congress and NC, the two largest political formation of the state lead squeezing the space for opposition. The alliance between NC and Congress suffocated the opposition and discontent could not be channelled. JKLF leaders like Abdul Ghani Lone became a separatist leader after the 1987 election. He later stated that many young people, out of frustration with the democratic process, decided to go for an armed struggle.

Ethnic Cleansing: With the objective to banish the minority in order to strengthen Pakistan’s claim over J&K, the minorities Kashmiri Pandits were targeted. By 1990, almost all Kashmiri Pandits had left the Valley of Kashmir while many secular Kashmiri Muslims like writers, academics, artists and bureaucrats also fell prey to terrorist bullets. The the rigged 1987 J&K state elections and the 1980s armed struggle of the Sikhs in Punjab against the India, became sources of inspiration for large numbers of Kashmiri Muslim youth. It is also estimated that by 1989, more than 10,000 youth had undergone training of weapons in Pakistan and Pakistan Administered J&K.

On January 4, 1990, Srinagar-based newspaper Aftab released a message, threatening all Hindus to leave Kashmir immediately, sourcing it to militant organisation Hizbul Mujahideen. On January 19, 1990 Farooq Abdullah resigned when Jagmohan Malhotra, a former bureaucrat, was brought in as Governor by Union Government, led by PM VP Singh and his Home Minister Mufti Mohammad Syeed. The newly appointed Governor recommended Presidents Rule. Unable to control the situation Jagmohan, advised the Kashmiri Pandits to leave the valley to camps set up for them in Delhi and Jammu. UNHCR Refuge Survey estimates that 2,50,000 to 3,00,000 Kashmiri Pandits fled the Kashmir Valley in 1990.

The ISI introduced a massive propaganda drive against Sufi Islam and the composite Kashmiri culture, dubbed both as anti–Islamic. The self-styled ‘militant movement’ was not only religiously fuelled but also manned by JKLF based in Azad Kashmir, the Afghan Mujahedeen and the other groups trained by ISI. Militancy was unevenly distributed across the state of J&K. The people of Jammu and Ladakh region distanced and maintained an anti-movement stance; supporting India. They were mostly active in the Valley region and they forced the Kashmiri Pandits whom they called as “mukhbir” or informers of the Indian government. The militancy in Kashmir had increased after the exodus of Kashmiri Pandits. It must be also noted that the National Front Government led by VP Singh (December  2, 1989 – November 10, 1990) was supported by BJP and Communist Parties from outside. PM VP Singh had faced his first crisis within few days of taking office, when Kashmiri militants kidnapped Home Minster Mufti Mohammad Sayeed’s daughter. The Union Government agreed to the demand for releasing militants in exchange; partly to end the storm of criticism that followed. 

Armed Forces Special Powers Act: In September 1990 India declared J&K a disturbed area and passed the Armed Forces Special Powers Act (AFSPA) and it has been in force since. The Act have received criticism from several sections for alleged concerns about human rights violations in J&K as well as other regions. On 31 March 2012, the UN asked India to revoke AFSPA saying it had no place in Indian democracy. Christof Heyns, UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions said “During my visit to Kashmir, AFSPA was described to me as ‘hated’ and ‘draconian’. It clearly violates International Law”.

IC 814 Hijack: On Christmas eve (December 24, 1999), Taliban militia surround the hijacked Indian Airlines flight IC 814 to Kandahar, Afghanistan. The plane was on a routine flight from Kathmandu, Nepal to New Delhi, India. On entering Indian skies, five armed men accosted the cabin crew and pilots. The flight was hijacked and the instructions were to fly westward and not land on Indian soil. After alerting air traffic control, flight captain Devi Sharan slowed down the aircraft speed by 40 per cent. In the guise of needing more fuel, he landed in Amritsar. Suspicious of the delay in refuelling,  (40 minutes that the aircraft stayed on tarmac) the hijackers forced the IC814 to take off to Kandahar.

The aircraft was turned away from Pakistani airspace by Lahore Air-Traffic Control. Pakistan and India had just fought a bitter Kargil War six months ago, and wanted nothing to do with what it saw as an Indian crisis.  Earlier New Delhi had identified that the five hijackers belonged to Harkat-Ul-Mujhaideen, with links to Pakistan’s Inter-Services Intelligence (ISI). The hijackers demanded the release of Pakistani terrorist Maulana Masood Azhar (the secretary of the terror group) along with 35 other militants who were captured and incarcerated in Indian prisons. In addition, a ransom of $200 million was demanded. The Vajpayee Government was face with its biggest diplomatic hurdle: of negotiating with the Taliban government – an Islamic fundamentalist militia regime in Afghanistan that India did not recognise and was one of its most vocal critics.

With pressure from the relatives of the hostages, and little cards to play with PM Vajpayee send Head of Intelligence Bureau (IB) Ajit Doval to negotiate. The Taliban authorities, in an attempt to gain international recognition, agreed to co-operate and took the role of mediators between the hijackers and the Indian government. Miraculously, the negotiators got the hijackers to drop their demand for the money and reduce the number of militants to be released from 36 to three. The three terrorists – Maulana Masood, Omar Sheikh and Mushtaq Ahmed Zargar – were arrested for terrorist activities in J&K, and two of them were incarcerated in the state.

The hijacking of IC814, the delay in decision making, the subsequent release of three terrorists in exchange for the 160-odd passengers and the Foreign Minister Jaswant Singh accompanying the released terrorists was considered a major diplomatic defeat of India, in the diplomatic circles. Farooq Abdullah, who was the CM then, warned of future dangers if these men are released and didn’t agree with the decision. Of the terrorists released, Omar Sheikh went on to finance one of the hijackers of the 9/11 attacks and the kidnap and murder of American journalist Daniel Pearl. Maulana Masood Azhar formed Jaish-e-Mohammed, which carried out the dastardly Parliament attacks in 2001, the 2016 attacks on the Indian Air Force base in Pathankot, and targeted CRPF jawans in 2019 in Pulwama. The combined death toll exceeded more than 200.

Pellet Guns: After the year 2008, the rise of insurgency and separatist movement in Kashmir conflict, the stone pelting became a prominent form of protest. This was a marked change in the protests that used to happen Kashmir. The locals called this protest as “Kanni Jung” (fighting with stones) and the protester Sangbaaz (stone pelter). TimesNow has reported that in 2016-17 Unrest, some stone-pelters are paid for protesting by separatist/ ISI. In the year 2010 India had instituted the use of pellet guns to control protesters violently clashing with the police. Many NGOs and UN agencies came out against it due to the grievous and lethal injuries they cause. In 2016 government formed a committee to look into alternative riot control agents. The army recommended to the committee that non-lethal weapons – including pepper guns, sonic cannons, and chili grenades – replace pellet guns. However in 2018, India reversed its decision and resorted to use of pellet guns indiscriminately to disperse protesters, stone-pelters and rioters.

Governor’s Rule: Governors rule can also be imposed on the State for a maximum period of six months. India has imposed Governors Rule or Presidents Rule 11 times since 1977 mostly sighting it as a emergency measure because of terrorism. Though the period has been less than 6 months in most cases but the Presidents Rule (20 June 2018 – 19 Dec 2018), before the Presidential order withdrawing special status, was for 6 months. It was extended for a further period of six months with effect from 3rd July, 2019. Under Section 92 of the Constitution of Jammu and Kashmir, there is no provision for further continuation of such Proclamation after six months. Hence, on the recommendation of Governor and having regard to the prevailing situation in the State, President issued a proclamation promulgating President’s Rule in J&K under article 356 of the Constitution of India. Subsequently, a Resolution approving the subject Proclamation by President was passed in the Lok Sabha on December 28, 2018 and in the Rajya Sabha on January 3, 2019.

Article 35A: Article 35A protects the demographic status of the J&K state in its prescribed constitutional form. Article 35A allowed the state to define “permanent residents” of the state and provide special rights and privileges to those permanent residents. The state of J&K defined these privileges to include the ability to purchase land and immovable property, ability to vote and contest elections, seeking government employment and availing other state benefits such as higher education and health care. Non-permanent residents of the state, even if Indian citizens, were not entitled to these ‘privileges’. Kashmiris are apprehensive that any move to abrogate Article 35A would open the gates for a demographic transformation of the valley, an objective advanced by the Sangh Parivar groups as an ideal solution to the Kashmir issue. The state’s autonomy has been gradually eroded by various governments of Delhi through misuse of the provisions of Article 370, and many Kashmiris have come to regard the rights of permanent settlement as the only remaining piece of any meaningful autonomy. So scrapping of Article 35A, will only alienate Kashmiri’s further and this would face legal scrutiny.

Change in Administrative Structure: The Parliament of India is not empowered to make laws on the subjects of State of J&K under any circumstance and cannot change the name, boundary or territory of the State without the concurrence of the Constituent Assembly. The Union government recently changed the administrative structure of J&K, bifurcated the state into two Union Territories, a decision the government claimed is aimed at pushing the restive state towards development. The hypocrisy of the claim is evident when you check the Human Development Index Report 2017 J&K is ranked 17 (0.684) and much above Karnataka is ranked 18 (0.682) and Gujarat is ranked 21 (0.667), while Kerala leads at 0.784. By the UN Method J&K is ranked 11 (0.684) and much above Karnataka is ranked 12 (0.682) and Gujarat is ranked 15 (0.667). The Union Government also scraped Article 35A and reorganise J&K (into two Union territories). Jammu & Kashmir was made a Union Territory with a legislature and Ladakh a separate Union Territory without a legislature. Let it sink in. The Princely State of Jammu & Kashmir was the largest state to join the Indian Union, and it has now lost its “statehood”. The state being dismembered into two Union Territories,is bound to result in a massive backlash, in the years to come. The 87 days “non co-operation” protest by the people of the state, is evidence to that.

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Greater Kashmir, the largest circulating English Daily in J&K on August 6, 2019

High Court & Supreme Court judgement on Article 370: On October 11, 2015 J&K High Court in the Sampat Prakash versus State of J&K case ruled that Article 370, granting special status to the State, though titled as ‘Temporary Provision’ and included in Para XXI titled ‘Temporary, Transitional and Special Provisions’ has assumed place of permanence in the Constitution.” The division Bench of Justices Hasnain Masoodi and Janak Raj Kotwal ruled in a 60-page judgement, ruled that the feature is beyond amendment, repeal or abrogation. The judgement held that “Article 370 was a permanent provision of the Constitution as the Constitution Assembly of J&K was dissolved.

On April 3, 2018 the Supreme Court of India gave a similar opinion declaring that Article 370 has acquired a permanent status through years of existence, making its abrogation impossible. Justices Adarsh K Goel and R F Nariman observed that, “since the State Constituent Assembly has ceased to exist, the President of India would not be able to fulfil the mandatory provisions required for its abrogation. The Supreme Court observed in 2016 in the case that “though the marginal note refers to Article 370 as only a temporary provision, it is in fact in current usage and will continue to be in force until the specified event in sub-clause (3) of the said Article of the Indian Constitution, takes place”.

The Supreme Court verdict mentions “specified events in Article 370 in sub-clause (3)”. Legally, as per provisions of Article 370 in sub-clause (3), Article 370 cannot be scrapped by a Presidential Order without the recommendation of the State Constituent Assembly if not the State Assembly and currently there is no valid J&K Assembly. The resolution was passed when J&K was and is virtually under lock-down and three of its former Chief Ministers and other mainstream political party leaders under house arrest. Bringing such a sweeping Presidential Order and then a bill attempting to bifurcate a state into Union Territories under President’s Rule (which is a stand-in option), is blatant mockery of rule of law as the changes being brought are permanent in nature.

The BJP’s support to the PDP to form the government after the December 2014 elections, its subsequent withdrawal of support from the PDF-led government and imposition of President’s Rule after the dissolution of the state assembly have created a situation wherein people’s representation is absent. J&K is under President’s rule from December 2018 and the Governor is the senior-most political functionary of the state right now. This leads to a legal complication as Article 370 can be abrogated only by taking the Legislative Assembly into confidence. The Governor, being an appointee of the Central Government as a formal head of the state, reports to the Centre under the constitutional framework is hardly a representative of the state. So, since the Governor is appointed by the President, this whole exercise is like the central government taking its own consent.

So in effect Article 370 was a non functional Article of Indian Constitution. It was just a vestigial law, as New Delhi had systematically diluted its provisions over the years, in the name of “balanced rules and regulations in the states”. All these actions of New Delhi; indoctrination of the people of the valley with radical Islam and the proxy war being wagged against India as part of their strategy of ‘bleeding India through a thousand cuts’ has led to the Valley’s alienation and hostility and not Article 370.  The only provision that the Government has achieved with this ‘masterstroke’ of Constitution (Application to Jammu & Kashmir) order 2019 is making Article 35A defunct.

Abolition of Article 370

Article 370 of the Indian Constitution is arguably the most contentious provision since its implementation and has flared constant debates. While one section of the Indian polity strongly demand its abrogation, some others have ardently opposed this demand. Morally the RSS and BJP can also argue that Pakistan has already changed the “Special Status” of Azad Kashmir and Gilgit-Baltistan, India is in its rights to change the status of Kashmir. The BJP had talked of the abrogation of Articles 370 and 35A in its 2019 manifesto and has never been shy of making its preferences clear on the matter. So in some ways, the move should not be that surprising.

As discussed earlier, the arguments in favour and against abrogation of article 370 are both debatable, however on legal grounds it cannot be abrogated as it would translate into fundamentally changing the Instrument of Accession. The High Court of J&K in October 2015, had ruled that Article 370 cannot be “abrogated, repealed or even amended”. It explained that Article 370 sub-clause 3 of the Article conferred power to the State’s Constituent Assembly to recommend to the President on the matter of the repeal of the Article. Since the Constituent Assembly did not make such a recommendation before its dissolution in 1957, Article 370 has taken on the features of a “permanent provision” despite being titled a temporary provision in the Constitution. The Supreme Court upheld the views in April 2018.

The first NDA Government led Atal Bihari Vajpayee’s approach to the problem of Kashmir was pragmatic and practical. His Kashmir policy is perhaps one of the stellar achievements of his tenure as the Prime Minister of India. With a single stroke of eloquence, he had changed the tone of New Delhi’s narrative on J&K. His slogan Insaniyat, Jamhooriyat, Kashmiriyat (humanitarian principle, democratic principle and respecting the inclusive culture of Kashmir), given in 2003, became a cornerstone of the forces of reconciliation in the State. Every mention of these three magical words used to evoked a tremendous response in the Valley.

But second and third NDA Government led by Narendra Damodardas Modi Government has wiped all that away. This NDA government believes in strong arm tactics with scant respect for Insaniyat or Jamhooriyat or Kashmiriyat. Instead of Jamhooriyat, Modi Government used Constitutional jugulary to dilute the provisions of Article 370. And I am sure the BJP Government have used the brains of Constitutional Lawyer like Harish Salve to dilute the special status to J&K guaranteed under Article 370 of the Constitution without scrapping the provision by creating a “legal fiction”. The government did so without bringing a Constitutional amendment, that would require two-thirds majority in the Parliament.

The Supreme Court and High Court of J&K interpreted recently that, as per provisions of Article 370 (sub-clause 3) of the Indian Constitution, Article 370 cannot be scrapped by a Presidential order without the recommendation of the Constituent Assembly of J&K and the Constituent Assembly has been dissolved in January 26, 1957. So the BJP Government used provisions of the Article 370 to amend Article 367 (which deals with Interpretation) in respect of J&K, and then this amendment was used to amend Article 370 itself.

The Presidential order on August 5, 2019, adds a sub-clause to Article 367, replacing the terms “Constituent Assembly of J&K” to mean “Legislative Assembly of J&K” and “Government of J&K” to mean “Governor of J&K acting on the aid and advice of the council of ministers”. The President draws the power to issue such a notification from Article 370 itself. Article 370 sub clause 1(d) empowers the President to extend provisions of the Indian Constitution to J&K. Now since Article 360 demands every Presidential order to have the concurrence of “Government of J&K”. And since J&K is currently under Governor’s rule, Governor of J&K Satya Pal Malik’s concurrence is deemed to be the “Government of J&K’s” concurrence.

JKnotification

Let me explain the “Legal Fiction”, as most of the print and visual media in India has refused to do that:

  • The “Legislative Assembly of J&K” is deemed to be the “Constituent Assembly of J&K”.
  • Consultation with the “Legislative Assembly of J&K” is deemed to be the consultation with “Constituent Assembly of J&K.
  • Since the “Legislative Assembly of J&K” is dissolved, the “Governor of J&K” is deemed to be the “Legislative Assembly of J&K” (which is deemed to “Constituent Assembly of J&K”).
  • Hence, the consultation with or recommendation of the “Governor of J&K” is deemed to be the consent of the “Constituent Assembly of J&K” to abrogate the Constitution of J&K and also deemed to be its recommendation to bring about the changes in Article 370 to make the entire Constitution of India applicable to the state.
  • Another major extension of this so-called logic of legal fiction is that the requirement mandated by Article 3 that altering the shape of a state should be done only after referring the bill for views of the state assembly, has been presumed to have been done, because the Governor was consulted.

Am sure this undemocratic and dubious way by which Supreme Court and High Court of J&K’s judgement has been subverted will go through judicial review. There are about 14 PILs on J&K filed in the Supreme Court. But then Chief Justice Ranjan Gagoi has time and again refused to hear them. The UN Office of the High Commissioner of Human Rights recently said “Supreme Court of India has been slow to deal with petitions concerning hebeas corpus, freedom of movement and media restrictions” but even Chief Justice Designate Sharad Arvind Bobde refused to comment on it.

In the history of independent India, Union Territories have been made States, but never has a State been reduced to Union Territory status. Jammu & Kashmir was the largest Princely State to join the Indian Union. The move to deny statehood goes against the federal and democratic nature of the Constitution as it brings more powers under central control, when ideally the flow of power should be in the reverse direction. The lockdown imposed in Jammu & Kashmir for the last 87 days, and making the Valley into a largest open-air prison, is bound to result in a massive backlash. But then people of India is lost in the spectacle of a delegation of 23 Right-wing EU MPs visiting Kashmir.

We really live in interesting times. Since the Government of India decided that October 31, 2019 is going to be the date of incorporation of the two new Union Territories – Union Territory Jammu & Kashmir and Union Territory Ladakh, preparations are underway for the swearing-in of the two newly-appointed Lieutenant Governors in Srinagar and Leh, as I pen this article.

NaMo’s Lok Pal

Finally the Indian Parliament has passed the Lok Pal Bill and we saw a lot of grand standing and credit posturing by all the political leaders of the Congress and the BJP.

Something surreal and sublime was happening in the country. For we Indians, used to seeing all political parties dispatching newly elected MLAs and MPs to some impregnable forts, blatant horse trading to cobble together majority, and parliament/ state assemblies being stalled for the silliest of reasons, this was a welcome change. The only time we saw our parliamentarians display unity was when it comes to their pay cheque.

Suddenly our leaders became goody two shoes. Post the Delhi elections we saw the victor and the vanquished, begging, prodding, and cajoling their biggest opponent Aam Aadmi Party to form the government. Parliament was ‘debating’, yes you read it right, debating on the need for an ombudsman organization, state funding of elections, electoral reforms, food security, price rise etc. Leaders were making ‘astounding discoveries regarding engaging people’. Basic principles of participative democracy is presented as ‘a bold new idea’. Our political class was displaying a new sense of exalted virtue and political morality. And India sure looked close to becoming a ‘paradise’.

Suddenly the leaders from Congress and BJP were graciously congratulating Anna Hazare for his contribution to ‘enact the Lok Pal Bill’. This was the same leaders who shooed away Anna and his India Against Corruption Movement, the last time around, ie., 2011, saying they were duty bound ‘to protect against outsiders trespassing into the law-making prerogatives of an elected Parliament’.

This time around, Anna, on his part, graciously accepted the ‘compromise Lok Pal’ offered by the government and called off his fast at Ralegan Siddhi. But, the most curious part was that all the leaders who spoke, conveniently forgot the contribution made by Arvind Kejriwal. But lost in the din was yet another important news – ‘Gujarat got its Lokayuktha’. And that brings me to the reason for writing this article.

ModiBut before we start I would like to take the legal meaning of ‘Ombudsman’ from which the concept of Lok Pal was born. In Government/Politics and Diplomacy, ‘ombudsman’ is a commissioner who acts as independent referee between individual citizens and their government or its administration.

Gujarat passed Gujarat Lokayukta Act in 1986, but almost from the time Mr. Narendra Damodardas Modi became the Chief Minister of Gujarat, the Gujarat Lokayukta, has not been functional.

In 2001, when Modi came to power in Gujarat, Justice RM Soni’s was the Lokayukta. Justice Soni was appointed during Keshubhai Patel’s rule in 1998 and his term expired in December 2003 and the post has been lying vacant since then. From then on Modi scuttled every move to appoint a Lokayukta and make the Gujarat Lokayukta, functional.

Finally on 25 August 2011, the Gujarat Governor, Dr. Kamla Beniwal, appointed Justice R. A. Mehta to the post of Lokayukta of Gujarat. Justice Mehta was recommended for the post by the Chief Justice of the Gujarat High Court S.J. Mukhopadhaya in June 2011.  A miffed Modi accused the Governor of running a parallel government in the state supported by the Congress and demanded that she be recalled.

The Gujarat government then challenged the appointment in the Gujarat High Court, arguing that the Governor could not make the appointment without the State government’s advice. On 10 October 2011, the two-member High Court bench gave a split verdict and in January 2012, a third member upheld Beniwal’s decision. This was a major blow to Modi.

The Gujarat government then approached the Supreme Court, however lost the case. The SC upheld the Gujarat High Court’s verdict that though the decision on Lokayukta appointment was made without consultation with or approval from Modi, it was as per the letter and spirit of the Gujarat Lokayukta Act, 1986.

The Gujarat government appealed against the SC verdict twice, but lost. Even after the SC upheld his appointment, Justice Mehta however desisted from charge of the office, citing 23 reasons. The controversy over his appointment, he said, had ‘denigrated the office of the Lokayukta and it had lost all the grace and dignity.’ (Read full text of his resignation letter here)

This was Modi’s chance. As is the norm in Gujarat, Modi wanted to appoint his man-friday for the role of Lokayukta, but he knew that this would not stand the scrutiny of law. So he now framed a new bill – Gujarat Lokayukta Aayog Bill, 2013.

The new Gujarat Lokayukta Aayog Bill, was passed by the state assembly in April, 2013, but, unfortunately, on 2 September 2013, the bill was returned by Gujarat Governor. On 1 October 2013, the state assembly passed the bill for the second time. But this time Governor Dr. Beniwal was constitutionally bound to accept the bill. Thus finally Modi had his way and succeeded in subverting the Supreme Court decision on the appointment of Lokayukta.

Unlike the Gujarat Lokayukta Act, 1986 the new bill provided primacy to the Chief Minister, over the Gujarat High Court Chief Justice, in appointing the ‘ombudsman’. The new Gujarat Lokayukta Aayog Bill, 2013 empowers a selection committee chaired by the Chief Minister appoints the Lokayukta. The panel comprises the Speaker of the Assembly, a Minister, the Leader of Opposition, the State Vigilance Commissioner and a High Court Judge, ‘to be nominated by the Chief Justice of the HC in consultation with the collegium of five senior judges’.

The new Bill also proposes a special provision which gives pivotal power to the state government in excluding any ‘public functionaries’ from the jurisdiction of the Lokayukta.

Then we saw Jayaram Ramesh capturing headlines saying ‘Modi talking on lokayukta is like Asaram talking on rape’. Jayaram was spot on, but then you know that these politicians only put on a public show to deride each other in varying degrees restraining themselves only to varying degrees of their innate civility or belligerence as is their habit. But they go ahead and do what they want anyway – even change a law or bring in a new one to suit their whim and fancy.

Lokayukta is an ombudsman body which is supposed to look into irregularities brought to its notice against the decisions taken by the state cabinet and the administration. Then how can the Chief Minister who is the head of the state cabinet have supremacy in deciding who should be the ombudsman?

This not only belies fundamental logic and intelligence. To me, it is a travesty of the institution of the ombudsman, but also provides an indication of authoritarian incoherence and double speaks by the Bharatiya Janata Party and Narendra Damodardas Modi.

Heads up – the politicians win. Tails up – the people lose !!!

Cartoon : Courtesy Satish Acharya

Criminality in Indian Political System

For the first time, I had seen a ray of hope when in July 10, 2013 the Supreme Court of India upheld the 2004 Patna High Court ruling, which held that when a person in custody was disqualified to vote, he was also disqualified from contesting the elections.

This ticked the political parties in Parliament and they joined hands to amend the Representation of the People Act 1951 to negate the impact of the apex court verdict directing immediate disqualification of MPs and MLAs on being sentenced for more than two years in a criminal case.

Learned lawyers in Parliament like Kapil Sibal and Arun Jaitley introduced a provision to Section 62(5) which says “by reasons of the prohibition to vote under this sub-section, a person whose name has been entered in the electoral roll shall not cease to be an elector.” In effect treating a person in lawful custody in a criminal case as a voter and hence qualified to contest elections.

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The political parties of all hues backed the UPA Government on the move to amend the Act. To understand why this unity you need to understand the criminal antecedents of our elected representatives. According to an analysis done by the Association for Democratic Reforms (ADR) and the National Election Watch (NEW), the Lok Sabha has 30% ie., 162 members have criminal cases against them. 14% have serious criminal cases. Our State Assemblies put together has 31% ie. 1258 members have criminal cases against them. 18% have serious criminal cases. In a break-up of political parties, 75% of Shiv Sena MPs and MLAs since 2004 have declared criminal cases against them, followed by Rashtriya Janata Dal with 46% such candidates and Janata Dal (United) with 44%. The BJP and Congress were at 31% and 22%, respectively.

Now you should understand the urgency. The apex court passed the judgement on July 10, 2013 and the amendments to RPA was rushed through in the Rajya Sabha and Lok Sabha on August 27, 2013 and September 7, 2013 respectively.  The amendments to the bill were passed within about 15 minutes in both houses, after a brief discussion. Some members of course wanted an elaborate debate on the amendments but the overwhelming majority of the House, including Law and Justice Minister Kapil Sibal, Leader of Opposition in LS and RS – Sushma Swaraj and Arun Jaitley, pushed for its passage even without discussion.

Now the final nail on the coffin of this attempt to cleanse our Parliament of dirty politicians have been done by Justices A.K. Patnaik and S.J. Mukhopadhaya.  Through their judgement they have effectively killed the collective hope of the people of India. It must be recalled here that in 2002 and 2003, two vital orders from the same Supreme Court had made it compulsory to candidates to file information regarding any or all criminal cases pending against them, their educational qualification as well as details of the combined wealth of the candidate and their spouses.

But I still have indomitable faith. My faith is in Aam Aadmi Party, for I find them as a few good men and women, who have taken a stand to clean the dirt in politics and I am willing to give them a chance.

My request to all my friends in Delhi is to go out and cast your vote for the Aam Aadmi Party and then we can build the movement to a credible alternative to these Criminal Politicians, across the country.

God Bless India.

PS : I am not a member of Aam Aadmi Party but just a Indian citizen tired of seeing the desperation of both Congress and the BJP. Both wants to make it a Presidential election showing a Pappu and a Feku. We know them, we have seen them in action. They have brought down the standard of debates in Parliament and election rallies to pits. We have also seen them both in action together in Parliament to scuttle the best opportunity to decriminalize the Indian political system.

Cartoon : Courtesy The Hindu & Copy Right Keshav