A Brief History of Kashmir’s Vanishing Autonomy

I had the good fortune of staying in Puerto Rico for a few weeks while attending a friend’s wedding last year. It is an archipelago situated in the northeast Caribbean Sea, blessed with pristine beaches, stunning sunsets and lush green vistas. It is US “territory” — a designation bestowed on 15 other semi-autonomous regions including Guam, American Samoa, US Virgin Islands and Northern Marianas Islands.

These territories are self-governing administrative divisions with locally elected governors and territorial legislatures, but are not counted among the 50 official states. Special status has been conferred on these regions to preserve their unique cultures from dilution and to honor their desire for autonomy. Spanish is the lingua franca in Puerto Rico, not English.

Similarly, French-speaking Quebec in Canada has a special status designation, as do Scotland, Wales and Northern Ireland, all of which enjoy substantial autonomy under the broad umbrella of the United Kingdom. In 2014, the people of Scotland voted to stay with the UK, and Puerto Rico overwhelmingly voted in favor of US statehood in a recent referendum.

The relationship between Macau and Portugal, Catalonia and Spain, Zanzibar and Tanzania, and Hong Kong and China bear a closer look in this context. Similarly, certain areas in the Republic of India also qualify for varying degrees of autonomy for specific historical and ethnic reasons. They are Mizoram, Assam, Manipur, Andhra Pradesh, Sikkim, Arunachal Pradesh, Goa and Kashmir.

According to Article 371A of India’s Constitution: “Notwithstanding anything in this Constitution, — (a) no Act of Parliament in respect of — (i) religion or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law, (iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the legislative Assembly of Nagaland by a resolution so decides.” The language is unequivocal: the Indian Parliament is barred from creating legislation pertaining to “ownership and transfer of land” in Nagaland and “its resources.” Article 371G on Mizoram says exactly the same thing, as does the contentious Article 370 pertaining to Kashmir.

ROOTS IN HISTORY

So why is this article the subject of intense debate in India, and not the others? To answer that one would have to turn the clock back several decades. Prior to India’s independence from British rule in 1947, Kashmir was a quasi-independent princely state, not directly under the Raj. In 1927, the Dogra ruler Hari Singh made a special provision to define the rights of permanent residents as distinct from non-state subjects. The law prohibited non-permanent residents from permanent settlement in the state, acquiring immovable property, government jobs, scholarships and aid.

The notification was issued in part at the insistence of Kashmiri Pandits, who feared an influx from Punjab and adjacent states. Jawaharlal Nehru later raised concerns that British émigrés and outsiders with no qualifications apart from surplus cash reserves would settle in droves, changing the demography and buy up everything of value, rendering locals serfs in their own land.

In order to avail of Indian military aid so he could ward off thousands of Pashtun tribesmen from the North-West Frontier Province, on October 26, 1947, Maharaja Hari Singh signed the instrument of accession in India’s favor, contingent on Kashmir being conferred with special status that would safeguard its unique culture and demography from being diluted. The areas now called Gilgit-Baltistan and Azad Kashmir (formerly Poonch and Mirpur) broke away and merged with Pakistan, following an armed uprising and rebellion by locals who were against joining the Indian union.

India later sought arbitration from the United Nations, and passed resolutions in favor of holding a plebiscite to decide the future of Kashmir. As a precondition, both the Indian and Pakistani armies were required to withdraw from the areas under their control. Unsurprisingly the withdrawal never happened and the idea for a plebiscite faded into distant memory as the years passed.

Sheikh Abdullah, who took over the reigns of Indian-administered Kashmir from Hari Singh, further calibrated Kashmir’s relationship with New Delhi, leading to the inclusion of Article 370 in the Constitution. It guarantees special status to Jammu and Kashmir, restricting the union’s legislative powers to three areas: defense, foreign affairs and communications. Parliament needs the state government’s concurrence for applying all other laws.

The Constitution of Jammu and Kashmir was framed in 1956. It upheld in letter and spirit the provisions made by the maharaja back in 1927 and the Constitution Order of 1954 that extended Indian citizenship to residents of the state. Article 35A was also inserted into the Constitution at the same time. It stipulated that the state would be empowered to legislate over the rights and privileges of the state subjects, henceforth referred to as permanent residents.

47 ORDERS

Since 1953, 47 presidential orders have been issued, making various other provisions of the Constitution of India applicable to Jammu and Kashmir and, as some commentators have observed, rendering nugatory the original agreement. They include the replacement of the regional head of state — sadr-e-riyasat — a position created after the monarchy was abolished, with a union-appointed governor.

ince then, 47 presidential orders have been issued, making various other provisions of the Constitution of India applicable to Jammu and Kashmir and, as some commentators have observed, rendering nugatory the original agreement. They include the replacement of the regional head of state — sadr-e-riyasat — a position created after the monarchy was abolished, with a union-appointed governor.

Fast forward to July 23, 2014: A 51-page petition was filed by an NGO calling itself “We, the Citizens” in the Indian Supreme Court, seeking removal of Article 35A. Senior Rashtriya Swayamsevak Sangh (RSS) official Arun Kumar, head of Jammu and Kashmir Study Centre that is behind the petition, claimed if Article 35A was removed, the citizens from the rest of the country would be able to settle in the region, ostensibly “integrating” the state into the rest of India, thus neutralizing separatist tendencies.

On 16 July, 2016, a significant judgment was delivered by Justices Muzaffar Hussain Attar and Ali Mohammad Magrey in the High Court of Jammu and Kashmir, pertaining to the SARFAESI Act. It reads:

“This article, on its own, does not give anything new to the State of J&K … In the State of J&K, the immoveable property of a State subject/citizen, cannot be permitted to be transferred to a non State subject. This legal and constitutional protection is inherent in the State subjects of the State of J&K and this fundamental and basic inherent right cannot be taken away in view of peculiar and special constitutional position occupied by State of Jammu and Kashmir. No law can be made to abridge or affect this basic right of citizens of Jammu and Kashmir. … Article 35A is clarificatory provision to clear the issue of constitutional position obtaining in rest of country in contrast to State of J&K. This provision clears the constitutional relationship between people of rest of country with people of J&K.”

The judgment says the insertion of Article 35A in 1954 does not give anything new to the state of Jammu and Kashmir. It also states the provision was purely “clarificatory,” based on the Maharaja’s notification of April 20, 1927. “Countries of Continental dimensions respect diversity. In India the lust for uniformity possesses communal-minded majoritarians,” writes A.G. Noorani in Greater Kashmir. “The 51 page petition filed by ‘We, the Citizens’ in the Supreme Court on 23 July 2014 reeks of emotive politics, factual errors of the crassest kind, and far-fetched argument which are manifestly absurd,” he adds.

Noorani is a historian, eminent constitutional expert and one of the finest legal minds in India. He is also the author of The Kashmir Dispute (1947-2012), published in two volumes, probably the most thorough and rigorous work on the subject. As Noorani and others have noted, if Articles 370 and 35A are abrogated, then it follows that the instrument of accession is also invalid, since it was signed contingent to Jammu and Kashmir being given special status. It is highly unlikely that Kashmir would have joined the Indian union in the first place if it wasn’t for the implementation of these vital provisions.

Reducing the massive military presence would be a step in the right direction, while simultaneously adopting a zero-tolerance policy toward jihadist proxies and their sponsors in Pakistan. Many locals have observed that terminating militants is only a stopgap measure, as the current crop can always be replaced with a new one. Episodes like the lynching of Deputy Superintendent of Police Mohammed Pandith or the dastardly attack on Delhi Public School in Srinagar will continue unless the entire supply chain is pulled out from its roots and sources of funding exposed and dried out.

Apart from being untenable and unconstitutional, all attempts to scrap Articles 35A and 370 or further erode the special status conferred on Jammu and Kashmir are likely to backfire, and exacerbate a volatile situation. Far from helping to integrate the state with the rest of India, it may drive an already tenuous relationship to a point of no return.

(Excerpted from an opinion piece in Fairobserver.com)

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