J&K in light of articles and agreements

Col J P Singh
Home Minister, while speaking on extension of President Rule in J&K in the Rajya Sabha, blamed Pt Nehru for:- (i) delaying J&K’s accession, (ii) taking J&K issue to the UN (iii) accepting ceasefire when army was successfully chasing the invaders (iv) accepting plebiscite in the UN to determine future of J&K and (v) granting special status to J&K under Article 370. Making his party’s stand clear on Kashmir, Amit Shah asserted that accession of the state to India is legal, constitutional and final whereas Article 370, by which accession to India is said to be cemented, is a temporary provision of the Constitution. Since it is temporary, it should have been abrogated many years ago, he stated. While the Home Minister is right in many ways, it means a lot to Jammu, but has created a hue and cry in the valley. Omar Abdullah reacted stating, ‘if Article 370 is temporary then Accession of J&K is also temporary’. Equally ludicrous is his suggestion that the original Constituent Assembly be resurrected to debate this issue. In that case there is a need to go back to history and re-establish Dogra rule which Dr Karan Singh ended by a stroke of his pen. He brought democratic rule to his kingdom when the UN sponsored Dixon Plan and required withdrawal of Pak invaders didn’t work. On 1 May 1951, Yuvraj Karan Singh, then Head of the State, issued a proclamation directing formation of the Constituent Assembly.
On 15 February 1952, the Constituent Assembly unanimously voted to rectify J&K’s accession to India. In 1956 the Constituent Assembly finalized the Constitution which declared the whole princely state of Jammu and Kashmir to be integral part of India. Constitution of J&K came into force on 26 January 1957. Section (3) of Part II states ‘The State of Jammu and Kashmir is and shall be an integral part of the Union of India. Section (3) cannot be amended as per provisions of Part XII of the Constitution. Despite that J&K is seen through various articles and agreements such as Accession, Delhi Agreement 1952 and Indira-Sheikh Accord.
Accession. Pakistan attacked India on 22 October 1947. On 24th October 1947, with marauding Pakistanis closing in on Srinagar, Maharaja Hari Singh, who had signed a standstill agreement with Pakistan and was negotiating it with India, sought Indian Army help to vacate his kingdom of Pak aggression. On Indian advise to accede before the military help could be given, he did so on 26 October 1947. That allowed Indian army to enter and defend his kingdom. “He signed the ‘instrument of accession’, exactly the same document that all other states had ratified. J&K thus became part of 1st Schedule that lists the States and Union Territories subject to Article 1 of the Constitution, which defines the territorial composition of India. In other words J&K is similar to that of other states”, is mentioned by Sh. MK Teng, HOD Political Science, Kashmir University, in his book titled, ‘Kashmir: The Myth of Autonomy’. (Sh. MK Tang left for his heavenly abode on 6th July 2019. I pledge this article to his dreams).
As per many legal analysts and historian, the accession of J&K to India is legal, constitutional and final. It is non-negotiable, with or without Article 370, or its derivative Article 35A. These statutes came much later. Late Prof MP Jain, whose book is considered one of India’s foremost texts on Constitutional Law, makes it abundantly clear that since no ‘Constituent Assembly’ exists anymore, any limitation sought under Article 370(3) would cease to operate and the entire provision would be open to amendment under the regular route available to Parliament under Article 368.
Delhi Agreement. Accession of J&K, like all other princely states, was based on the stipulation that only matters of Defence, External Affairs and Communications would be the preserve of the Government of India. While all other states decided to drop this restrictive covenant and accept in toto the decisions of the Indian Constituent Assembly; J&K Constituent Assembly took a unanimous decision, that ‘sovereignty in all matters other than those specified in the Instrument of Accession will continue to reside with the state’. The representatives of J&K conferred with representatives of Indian govt and arrived at an agreement endorsing decisions of the Constituent Assembly called ‘Delhi Agreement 1952’. That is what makes J&K special and controversial because that sowed the seeds of separatism.
Articles 370 and 35 A. Article 370 of the Constitution of India gave J&K a special status. Pt. Nehru is blamed for Article 370 because Dr Bhimrao Ambedkar, Sardar Patel and many others opposed it. When finally conceded, it was envisioned as a ‘temporary provision’. Several other provisions of the Indian Constitution were made applicable to J&K by various amendments inserted into the Constitution, by the President of India, ‘in exercise of the powers conferred by Clause (1) of Article 370 of the Constitution’, however with the concurrence of State govt. Article 35A was one of such addition. It allows J&K legislature to define who is a permanent resident of J&K and consequently eligible to vote, get state govt jobs, get school/college admissions, own and sell land/property etc. Under Article 35 A a set of laws have been enacted that are discriminatory in nature eg Pak Refugees living in Jammu since 1947 are denied all these rights. Instead it protects the rights of POJK residents and those who migrated to Pakistan on partition. State enacts laws that violate fundamental rights of Indian citizens and favour alien of enemy country?
Treaties and Agreements. Dogras ruled J&K for 101 years continuously. They signed treaty of Nepal in 1841, Treaty of Chushul with China and Tibet in 1842 and Treaty of Amritsar with British in 1846. Dogra united people & territories and extended Indian boundaries far and wide to the Northwest. Kashmiris ruled for about 30 – 35 years, in parts. They gave away 1/3rd of J&K to Pakistan, signed Delhi Agreement 1952, Indira-Sheikh Accord 1975, talked about greater autonomy and self rule, ignited communal tensions, promoted inter and intra-regional tensions, initiated ethic cleansing and allowed militancy to raise its head. While Dogras don’t talk about treaties and agreements of their time, Kashmiris make lot of hue and cry about their agreements. They talk of Azadi whereas Dogras haven’t even raised their voice for trifurcation. Kashmiris must learn from Dogras and let the political exigency prevail.
Abrogation of 370. A past prime minister gave it to J&K when political exigency warranted, the current prime minister should abrogate it the same way and by the similar process if deemed not needed anymore. The successor will succeed if he has the political skills.
Conclusion. Articles 370 or/Article 35 A, is an anachronistic decree that has outlived its utility, militates against India’s sovereignty and discriminates against both Indians and Kashmiris by mutually excluding each other from reciprocal growth. It is redundant, should be constitutionally abrogated so that J&K is no more seen through various prisms.