INDIA UNITED

A Comprehensive Study Report on the Constitutional

Developments & Democratic Values in Jammu &
Kashmir

Submitted By:
DEEPAK TONGLI
Intern Associate (Law)
Law Commission of Karnataka
Room No. 302A, Vidhanasoudha
Bengaluru-560 001

1
 PREFACE

This report is a part of the Internship program I have undergone at the Law Commission
of Karnataka, Vidhana Soudha, Bengaluru. I was on the internship program from the 1st
of August 2019 for a period of 21 day. It is during this period that the Historical decision
of the abrogation of Art. 370 and 35A was announced by the Hon’ble Union Home
Minister Shri. Amit Shah. There arose various controversies amongst the leaders of the
nation and also among the intellectuals on the process being followed in taking this
decision. In purview of this, I have been assigned to study the Kashmir issue and submit a
project report. I took up this matter and refereed various texts, reports, dialogues and
other supporting available materials and have prepared this report.

In this project, I have upheld the facts looking into their position in the Constitutional
system of the country and their democratic values.

I thank one and all at the Law Commission of Karnataka for giving me their inputs on the
subject and assisting me in the completion of this report. My indebt my gratitude to Ms.
Farheen Firdos, Research Scholar for her timely cooperation and guidance. I also thank
Hon’ble Justice Sri. Pradeep D. Waingankar, Member Law Commission of Karnataka and
Sri. R. Chandrashekhar, Rtd. Dist Judge & Hon’ble Member Secretary, Law Commission
of Karnataka and all the Staff Members of the Commission for their support and
guidance.

Thanking you

DEEPAK TONGLI
II Year Law Student
KPES’ Dr. G.M.Patil Law College, Dharwad

2
 CONTENTS

Sl. No. Chapter Page no.

Chapter-1:
01 04
Introduction to the Kashmir Region and the Historical background
Chapter-2:
02 08
Constitution of the Jammu & Kashmir
Chapter-3:
03 11
Special Provisions to Jammu & Kashmir under Indian Constitution
Chapter-4:
04 13
The Kashmir Conflict & Indo-Pak Views on Kashmir
Chapter-5:
05 Art. 370 & Art. 35A of the Constitution of India & The Jammu & 18
Kashmir – From Enactment to Abrogation, a brief note
Chapter-6:
06 22
Historic Decision of Abrogation of Art. 370 & 35A
CONCLUSION 24
BIBLIOGRAPHY

3
 TABLE OF CASES

1. State Bank of India Vs. Santosh Gupta & ors. (2017)

2. Sampat Prakash v. State of J&K (1970)

3. P.L Lakhanpal v. State of J&K (1956)

4. Abdul Ghani v. State of J&K (1970)

5. Mohd Maqbool Damnoo (1972)

4
 CHAPTER-I
INTRODUCTION TO THE KASHMIR REGION AND THE HISTORICAL BACKGROUND

KASHMIR, if literally translated, means land desiccated from water:"ka" (the water) and shimeera
(to desiccate). Tradition says that Kashmir was originally a lake that was drained by the great
saint of ancient India Kashyap. It was included in the empire of Ashoka Maurya who is credited
with the foundation of the city of Srinagar around the year 250 BC.

Kashmir, region of the northwestern

Indian subcontinent. It is bounded by the
Uygur Autonomous Region of Xinjiang to
the northeast and the Tibet Autonomous
Region to the east (both parts of China),
by the Indian states of Himachal Pradesh
and Punjab to the south, by Pakistan to
the west, and by Afghanistan to the
northwest. The region, with a total area of
some 85,800 square miles (222,200 square
km), has been the subject of dispute
between India and Pakistan since the partition of the Indian subcontinent in 1947.1

The northern and western portions are administered by Pakistan and comprise three areas: Azad
Kashmir, Gilgit, and Baltistan, the last two being part of a territory called the Northern Areas.
Administered by India are the southern and southeastern portions, which constitute the state of
Jammu and Kashmir but are slated to be split into two union territories. The Indian- and
Pakistani-administered portions are divided by a “line of control” agreed to in 1972, although
neither country recognizes it as an international boundary. In addition, China became active in
the eastern area of Kashmir in the 1950s and has controlled the northeastern part of Ladakh (the
easternmost portion of the region) since 1962.

1
Encyclopedia Britannica Inc., “The Kashmir Region” https://www.britannica.com/place/Kashmir-region-Indian-
subcontinent/media/1/312908/54885 visited on 21.08.2019 at 11:31AM

5
BRIEF HISTORY OF KASHMIR UPTO 1947

Cradled in the lap of the majestic Himalayas, Kashmir is the arguably most beautiful place in the
world. Kashmir is the only region of India to have a historical record of its distant past. Such is
not the case with the other parts of India which led to the 11th century, the Islamic scholar
Alberuni to remark that Indians lack a sense of history. Kashmir has also the distinction of
producing historians of repute. Kalhana’s Rajatarangini is one of the chief sources. Bilhana was
another Sanskrit historian who was born in Kashmir. The court poet at Kalyanain the South India,
he authored Vikramankadeva-charita to celebrate the reign of Vikramaditya VI, the Chalukya
king of Kalyana.

During this period Buddhism spread in Kashmir and flourished under the Kushans. During the
reign of Kanishka, the third Buddhist council took place in Kashmir which has been attested by
the 7th century Chinese traveler Hien Tsang. But Hinduism held its sway in the region. The 7th
Century AD witnessed the establishment of a dynasty called the Karkota whose foundation stone
was laid by Durlabhavarrdhana. The most famous ruler of this dynasty was Lalitaditya Muktapid
who built the world famous sun temple (Martand) in Kashmir. The Karkotas were supplanted by
the Utpalas in 855 AD. The most important ruler of this dynasty was Avanti-verman. He
recovered Kashmir from utter political and economic disorder into which Kashmir had fallen
during the rule of his predecessors. Didda, a Gupta widowed queen, ruled Kashmir until 1003 AD
when the Lohara dynasty took over. Didda was a very unscrupulous and willful lady and led a
very immoral life. But in spite of these drawbacks, she ruled the valley with firm hands.

The last Hindu ruler of Kashmir was Udyan Dev. His chief Queen Kota Raniwas the de facto ruler
of the kingdom. She was a very brave lady, shrewd and anable ruler. With her death in 1339 the
Hindu rule in Kashmir came to an end andthus was established the Muslim rule in Kashmir under
Sultan Shamas-ud-dinwhose dynasty ruled the valley for 222 years. The greatest ruler of this
dynasty was undoubtedly Sultan Zain-ul-Abdin. Under his rule Kashmir was culturally and
politically at its zenith. The kingdom was annexed into the Mughal Empire in 1586 and thus was
extinguished the freedom of Kashmir.

6
In 1757 Kashmir came under the control of Ahmed Shah Durrani, the Afghan who invaded India
many times. In 1819 Kashmir was annexed by Ranjit Singh and made a part
of his Sikh empire. The two Anglo-Sikh wars fought between the Sikhs and
Ranjit Singh resulted in the complete extinction of the Sikh sovereignty in
Kashmir. The British gave away Kashmir to Ghulab Singh for the sum of 75
lakhs of rupees under the Treaty of Amritsar. This entitled Ghulab Singh to
have his complete sway over the dominion. He extended his territory by
annexing Ladakh. Ghulab Singh died in 1857 and was replaced by Rambir Singh (1857-1885).
Two other Marajahs, Partab Singh (1885-1925) and Hari Singh ruled in succession.

Maharaja Sir Hari Singh ascended the throne in 1925. He continued to govern the state till 1950.
In 1932 Kashmir's first political party – All Jammu & Kashmir Muslim Conference was formed by
Sheik Abdullah The party was later renamed the National Conference in 1939 and continues to
be a major political party in Kashmir even today.2

BRIEF HISTORY OF KASHMIR AFTER 1947

India attained Independence on the 15th of August 1947. After Independence, the ruler of the
princely state of Kashmir,
Maharaja Hari Singh,
refused to accede to either
India or Pakistan. When
Pakistan invaded Kashmir
in the following year, the
ruler of Kashmir sought
help from the Indian
government and agreed to place Kashmir under the dominion of India. As a result India sent its
troops to Kashmir to help the Maharaja. A UN cease-fire in 1949 saw the end of fighting and
created the first Line-of-Control. 3

2
The History of Kashmir, https://www.jktdc.co.in/History-of-Kashmir.html visited on 21.08.2019 at 12.30Pm
3
The Hindustan Times Web Edition dated 27 Oct 1947

7
In 1956 Kashmir was, in effect, integrated into the Indian Union under a new Constitution.
However, Azad Kashmir, the area which Pakistan gained during its campaign in 1948, continues
to remain with Pakistan. The volatile situation was aggravated by the Chinese occupation of the
Aksai Chin region, in Ladakh, in 1959. The situation came to head in 1963 when a Sino-Pak
agreement defined the Chinese border with Pakistani Kashmir and ceded Indian-claimed territory
to China.

India and Pakistan fought over Kashmir again in 1965. A UN cease-fire took effect in September,
1965. Prime Minister Lal Bhadur Shastri of India and
President Ayub Khan of Pakistan signed the Tashkent
agreement4 on 1st January 1966. They resolved to try to
end the dispute by peaceful means. Fighting erupted
between India and Pakistan once again in the month of
December 1971, after the leaders of the independence movement in East Pakistan sought India's
help. Its leaders were aided by India in their struggle for
independence. After the war, the province of East Pakistan
emerged as an independent country called Bangladesh. A
new cease-fire took effect and the Shimla Agreement5 was
signed between the Indian Prime Minister Smt. Indira
Gandhi and the Pakistani President Zulfikar Ali Bhutto. Both the countries agreed to sort out all
issues bilaterally.

4
Ministry of External Affairs https://mea.gov.in/bilateral-documents.htm?dtl/5993/Tashkent+Declaration visited
on 21.08.2019 at 12.40PM
5
Ministry of External Affairs https://mea.gov.in/in-focus-article.htm?19005/Simla+Agreement+July+2+1972 visited
on 21.08.2019 at 12.53PM

8
 CHAPTER – II

CONSTITUTION OF THE JAMMU & KASHMIR

HISTORICAL PERSPECTIVE
India after attaining Independence in 1947, Jammu & Kashmir, then a princely state under
suzerainty of British Monarch, and ruled by Maharaja Hari Singh who tried to avoid declaring his
state's accession to either of the two dominions at the time of independence (although that was
not an option under the Indian Independence Act, 1947). Maharaja Hari Singh signed a standstill
agreement with Pakistan. However, on 6 October 1947, Pakistani Muslim tribes, supported by
the government of Pakistan, attacked Jammu and Kashmir on the behest of Pakistan to achieve
forcible accession to Pakistan. Maharaja Hari Singh requested assistance from India, and when
India requested an Instrument of Accession to India, the Maharaja signed it so that India could
help in defence.

The Instrument of Accession gave only limited powers to the Government of India, only about
the three subject matters of Foreign affairs, Defence and Communications. It was similar to
several hundred others Instrument of Accessions signed between the Government of India and
other princely states. Whereas the other states later signed merger agreements, the relationship of
Jammu and Kashmir with the Union of India was governed by special circumstances. In view of
them, the Article 370 was incorporated in the Constitution. The Constitution of Jammu and
Kashmir Maharaja (later Sadr-e-Riyasat) Dr. Karan Singh had signed into law in 1957.

J & K CONSTITUTION:
The Constitution of Jammu and Kashmir was the legal document which established the
framework for the state government of the Indian state of Jammu and Kashmir. The constitution
was adopted on 17 November 1956, and came into effect on 26 January 1957. It was rendered
infructuous on 5 August 2019 by an order signed by the president of India and ceased to be
applicable on that date.

9
SAILENT FEATURES OF THE CONSTITUTION OF J & K:

As of 2002, 29 amendments were made to the Constitution. The Constitution, as of 2002, had
158 articles divided into 13 parts and 7 schedules. The skeletal outlook is as under;
PARTS CHAPTER ARTICLES
I Preliminary 1-2
II The State Government 3-5
III Permanent Residents 6-10
IV Directive Principles of State Policy 11-25
The Executive
 The Governor (26-34)
V  The Council of Ministers (35-41) 26-45
 The Advocate General (42)
 Conduct of Government Business (43-45)
The State Legislature
 Composition of the State Legislature (46-50)
 General Provisions (51-56)
 Officers of the State Legislature (57-63)
 Conduct of Business (64-67)
 Disqualification of Members (68-71)
VI  Powers, Privileges and Immunities of the State Legislature and Its 46-92
members (72-73)
 Legislative Procedure (74-78)
 Procedure In Financial Matters (79-84)
 Procedure Generally (85-90)
 Legislative power of the Governor (91)
 Breakdown of Constitutional Machinery (92)
The High Court
VII 93-113
 Subordinate Courts (109-113)
VIII Finance, Property & Contracts 114-123
The Public Services
IX 124-137
 The Public Service Commission (128-137)
X Elections 138-142
XI Miscellaneous Provisions 143-146
XII Amendment of the Constitution 147
XIII Transmonal Issues 153-158
Articles 148 to 152 have been omitted in Part XIII

10
SUPREME COURT’S OBSERVATION ON THE CITIZENSHIP OF J&K:

Although India has a unitary citizenship, Constitution of Jammu & Kashmir defines a concept of
Permanent Residency, in Part III. Some agencies often spread lies on the concept of Permanent
Residency and falsely claim that the people of J&K enjoy dual citizenship. However, the stand of
Supreme Court is very clear and to put in its words as “We may also add that permanent
residents of Jammu & Kashmir are citizens of India, and there is no dual citizenship as is
contemplated by some other federal Constitutions in other parts of the world.” – Supreme Court

Jammu and Kashmir has “no vestige” of sovereignty outside the

Indian Constitution, and citizens of the State are “first and foremost”
citizens of India, the Supreme Court has held.6

“The State of Jammu & Kashmir has no vestige of sovereignty outside

the Constitution of India and its own Constitution, which is
subordinate to the Constitution of India,” a Bench of Justices Kurian
Joseph and R.F. Nariman said.7

6
State Bank of India Vs. Santosh Gupta & ors. SC Civil Appeal No. 12237-12238 of 2016
7
Ibid

11
 CHAPTER-III
SPECIAL PROVISIONS TO J & K UNDER INDIAN CONSTITUTION

The Constitution of India granted special status to Jammu and Kashmir among Indian states, and
it was the only state in India to
have a separate constitution.
Article 370 of the Constitution
of India stated that Parliament of
India and the Union government
jurisdiction extends over limited
matters with respect to State of
Jammu and Kashmir, and in all
other matters not specifically
vested in Federal government,
actions have to be supported by
state legislature. Also, unlike
other states, residual powers were vested with the state government. Because of these
constitutional provisions, the State of Jammu and Kashmir enjoyed a special but temporary
autonomous status as mentioned in Part XXI of the Constitution of India. Among notable and
visible differences with other states, till 1965, the head of state in Jammu and Kashmir was called
Sadr-i-Riyasat (Head of State) whereas in other state, the title was Governor, and the head of
government was called Prime Minister in place of Chief Minister in other states.
ABROGATION:
On 5 August 2019, the President of India issued a presidential order, namely, The
Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272)8 under
Article 370 of the Constitution of India making all the provisions of Constitution of
India applicable to the state of Jammu and Kashmir and this has rendered the
Constitution of Jammu and Kashmir infructuous from that date. Now the constitution
of India is applicable to Jammu and Kashmir, like all other Indian states.

8
G.S.R 551 (E) Notification by Ministry of Law & Justice http://egazette.nic.in/WriteReadData/2019/210049.pdf
retrieved on 13.08.2019

12
JURISDICTION OF INDIAN PARLIAMENT ON J & K LEGESLATIONS:
Under Part XXI of the Constitution of India, which deals with "Temporary, Transitional and
Special provisions", the State of Jammu and Kashmir was accorded special status under Article
370. Even though included in 1st Schedule as 15th state, all the provisions of the Constitution
which are applicable to other states were not applicable to Jammu and Kashmir.9

Government of India can declare emergency in Jammu and Kashmir and impose Governor's rule
in certain conditions. Matters related to Defense, Foreign relations, Communication and Finance
of Jammu and Kashmir is under jurisdiction of Constitution of India. Union Legislature had very
limited jurisdiction over Jammu and Kashmir in comparison with other states. Till 1963,
Parliament could legislate on subjects contained in the Union List, and had no jurisdiction in case
of Concurrent List under 7th Schedule with Jammu and Kashmir. The Parliament had no power
to legislate Preventive Detention laws for the state; only the state legislature had the power to do
so.

CONSTITUTIONAL RELATIONS WITH GOVT. OF INDIA:

 Article 3 in part 2 of the Jammu and Kashmir constitution stated "Relationship of the State
with the Union of India:-The State of Jammu and Kashmir is and shall be an integral part
of the Union of India."10
 Article 5 of the part 2 was about extent of "Executive" and "Legislative" powers of the
state and stated that "Jammu and Kashmir Legislative Assembly has executive and
legislative power of all matters except those with respect to which Parliament of India has
power to make laws for the State under the provisions of the Constitution of India".11
 Article 147 of Part 12 was about amendment of the Jammu and Kashmir Constitution
which stated that, "No Bill shall be introduced or moved in State Legislative Assembly to
amend or change above mentioned articles 3 and 5."12

9
Central Enactments applicable to State of Jammu & Kashmir as on 10 Feb 2009 Retrieved on 17.08.2019
10
Constitution of J&K http://jklegislativeassembly.nic.in/Costitution_of_J&K.pdf Ref. Pg-03 retrieved on
17.08.2019 at 07.30PM
11
Ibid
12
Art. 147 of the Constitution of J&K http://jklegislativeassembly.nic.in/Costitution_of_J&K.pdf Ref. Pg-67
retrieved on 17.08.2019 at 09.28PM

13
 CHAPTER-IV
THE KASHMIR CONFLICT & INDO-PAK VIEWS ON KASHMIR

The Kashmir conflict is a territorial conflict primarily between India and Pakistan over the
Kashmir region. The conflict started after the partition of India in 1947 as a dispute over the
former princely state of Jammu and Kashmir and escalated into three wars between India and
Pakistan and several other armed skirmishes. China has also been involved in the conflict in a
third-party role.13

Both India and Pakistan claim the entirety of the former princely state of Jammu and Kashmir.
India controls approximately 55% of the land area of the region and 70% of its population;
Pakistan controls approximately 30% of the land, while China controls the remaining 15%. India
administers Jammu, the Kashmir Valley, Ladakh, and the Siachen Glacier. Pakistan administers
Azad Kashmir and Gilgit-Baltistan. China administers the mostly uninhabited Shaksgam Valley,
and the Aksai Chin region.

Effects of India-Pakistan Partition:

The Independence India celebration didn’t last long as there was a political turmoil and
disturbances between the newly born two countries. The British Paramountcy over the 562
Indian princely states ended. According to the Indian Independence Act 1947, "the suzerainty of
His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the
date of the passing of this Act between His Majesty and the rulers of Indian States".14 States were
thereafter left to choose whether to join India or Pakistan or to remain independent. Jammu and
Kashmir, the largest of the princely states, had a predominantly Muslim population ruled by the
Hindu Maharaja Hari Singh. He decided to stay independent because he expected that the State's
Muslims would be unhappy with accession to India, and the Hindus and Sikhs would become
vulnerable if he joined Pakistan. On 11 August, the Maharaja dismissed his prime minister Ram
Chandra Kak, who had advocated independence. Observers and scholars interpret this action as a
tilt towards accession to India. Pakistanis decided to preempt this possibility by wresting Kashmir
by force if necessary.

13
Yahuda, Michael (2 June 2002). "China and the Kashmir crisis". BBC. Retrieved 16.08.2019 at 3.29PM
14
"Indian Independence Act 1947". UK Legislation. The National Archives. Retrieved 14 September 2015.

14
The Jammu division of the state got caught up in the Partition violence. Large numbers of Hindus
and Sikhs from Rawalpindi and Sialkot started arriving in March 1947, bringing "harrowing stories
of Muslim atrocities." This provoked counter-violence on Jammu Muslims, which had "many
parallels with that in Sialkot." The violence in the eastern districts of Jammu that started in
September, developed into a widespread 'massacre' of Muslims around the October, organised
by the Hindu Dogra troops of the State and perpetrated by the local Hindus, including members
of the Rashtriya Swayamsevak Sangh, and the Hindus and Sikhs displaced from the neighbouring
areas of West Pakistan. The Maharaja himself was implicated in some instances. A large number
of Muslims were killed. The huge number of Muslims have fled to West Pakistan, some of whom
made their way to the western districts of Poonch and Mirpur, which were undergoing rebellion.

The rebel forces in the western districts of Jammu got organised under the leadership of Sardar
Ibrahim, a Muslim Conference leader. They took control of most of the western parts of the State
by 22 October. On 24 October, they formed a provisional Azad Kashmir (free Kashmir)
government.

INDO-PAK WAR OF 1947

Rebel forces from the western districts of the State and the Pakistani Pakhtoon tribesmen made
rapid advances into the Baramulla sector. In the Kashmir valley, National Conference volunteers
worked with the Indian Army to drive out the 'raiders'. The resulting First Kashmir War lasted
until the end of 1948.

On 1 November 1947, Mountbatten flew to Lahore for a conference with Jinnah, proposing that,
in all the princely States where the ruler did not accede to a Dominion corresponding to the
majority population (which would have included Junagadh, Hyderabad as well as Kashmir), the
accession should be decided by an 'impartial reference to the will of the people'. Jinnah rejected
the offer. According to Indian scholar A. G. Noorani Jinnah ended up squandering his leverage.15

15
Noorani A.G, “The Kashmir Dispute”, Chennai: Tulika Books, 2013 Pg-13,14

15
PLEBICITE- Stands taken by Jinnah, Nehru & Mountbatten
According to Jinnah, India acquired the accession through "fraud and violence."16 A plebiscite was
unnecessary and states should accede according to their majority population. He was willing to
urge Junagadh to accede to India in return for Kashmir. For a plebiscite, Jinnah demanded
simultaneous troop withdrawal for he felt that 'the average Muslim would never have the
courage to vote for Pakistan' in the presence of Indian troops and with Sheikh Abdullah in
power. When Mountbatten countered that the plebiscite could be conducted by the United
Nations, Jinnah, hoping that the invasion would succeed and Pakistan might lose a plebiscite,
again rejected the proposal, stating that the Governors Generals should conduct it instead.

UN Reference:
Prime Ministers Nehru and Liaquat Ali Khan met again in December, when Nehru informed Khan
of India's intention to refer the dispute to the United Nations under article 35 of the UN Charter,
which allows the member states to bring to the Security Council attention situations 'likely to
endanger the maintenance of international peace'. Nehru and other Indian leaders were afraid
since 1947 that the "temporary" accession to India might act as an irritant to the bulk of the
Muslims of Kashmir. Secretary in Patel's Ministry of States, V.P. Menon, admitted in an interview
in 1964 that India had been absolutely dishonest on the issue of plebiscite.17 A.G. Noorani blames
many Indian and Pakistani leaders for the misery of Kashmiri people but says that Nehru was the
main culprit.18

Nehru’s Petition in UN on Kashmir Issue and its Validity:

Prime Minister Nehru had appealed to the UN Security Council through the petition filed in
January 1948 following the outbreak of the first war between India and Pakistan. On the basis of
this petition, the Security Council had established the UN Commission for India and Pakistan to
mediate between the two countries.

16
Schofield, “Kashmir in conflict”, Lodon: Taurus & Co., 2003, Pg-61
17
Noorani, “Plebiscite in Kashmir-Still born or dead?”, https://www.greaterkashmir.com/news/opinion/plebiscite-
in-kashmir-stillborn-or-killed-part-1/ visited on 21.08.2019 at 5.32PM
18
Noorani, “The Kashmir Dispute: 1947-2012”, https://www.dawn.com/news/1112700/cover-story-the-kashmir-
dispute-1947-2012-by-ag-noorani visited on 21.08.2019 at 5.41Pm

16
It is widely discussed as the most controversial event that Nehru didn’t take Cabinet approval
prior to referring the issue to UN. However, some contemporary texts do give us information
that there was a Cabinet Meeting held but Sardar Patel was not a part of it. However, Nehru
informs Saradar the next day that the cabinet has decided to refer the matter to UN and a draft
petition is sent to British Prime Minister and a copy of the same would be sent to him. But one
undisputed matter is there was a difference of opinion amongst Nehru & Sardar in referring the
Kashmir issue to UN. It is also understood that, Patel did not agree for Nehru’s decision. But at
this precise point in time the Sardar, who had so far looked after the relations with the princely
states, was sidetracked. On December 23, he wrote his resignation, but was prevented (by
Gandhi) from pressing for it. From that day, with Patel out of Kashmir affairs, things went from
bad to worse.

UN’s reaction on the Petition & Nehru’s efforts on solving the Kashmir Problem:
In the first months of 1948, during the UN hearings, the British showed where their interests lay.
The original Indian complaint was completely left aside and the Security Council began adopting
anti-India resolutions.

Abdullah had already started his crusade (particularly with the US administration) for Kashmir's
independence. He remained Nehru's friend till his scheming became too dangerous for India. In
August 1953, he was finally dismissed by Karan Singh, the sadar-i-riyasat. Two months earlier,
Shyama Prasad Mookerjee, who had been arrested by Abdullah and left without medical care in
Srinagar, died in mysterious circumstances. Nehru had visited the capital of Kashmir a few days
earlier, but did not find the time to call on his former Cabinet colleague. He later wrote to
Mookerjee's mother: 'Indeed, I hoped that the healthy climate of Kashmir might lead to an
improvement in Shyama Babu's health.'

Though in the following years Nehru hardened his position when different UN commissions
(Dixon, Graham, Jarring) visited Delhi, it was too late. Pakistan was certainly not interested in
vacating the so-called 'Azad Kashmir', rendering the plans for a plebiscite mentioned in the UN
resolutions of August 1948 and January 1949 irrelevant.

17
A few days before his death Nehru sent a freshly released Abdullah to meet Ayub Khan with a
proposal to have a confederation of India, Pakistan and Kashmir. The proposal was
contemptuously rejected as 'absurd' by the Pakistani military ruler. It was Nehru's last attempt to
solve the issue and it failed.

Nehru’s personality on the issue:

In retrospect, despite Nehru's love for great principles, his incapacity to take decisions in time, his
inability to work with colleagues like Patel, and his friendship with individuals such as the
Mounbattens or Abdullah, who had their own interests, blinded him so much that he did not
further India's national interests. The consequences have been tragic then. At the outright, it
would be highly inconsistent for me to take a stand that everything what happened post 1947
war was because of Nehru alone. Indeed, there were some mistakes happened, but one thing to
be noted that was Nehru’s intention to refer Kashmir Issue was against the National’s interest?
Certainly not as he has made several attempts post understanding the fact that UN shall not help
further in the interest of India.

PAKISTANI VIEW:
Pakistan maintains that Kashmir is the "jugular vein of Pakistan"19 and a currently disputed
territory whose final status must be determined by the people of Kashmir. Pakistan's claims to the
disputed region are based on the rejection of Indian claims to Kashmir, namely the Instrument of
Accession. Pakistan insists that the Maharaja was not a popular leader, and was regarded as a
tyrant by most Kashmiris. Pakistan maintains that the Maharaja used brute force to suppress the
population.20 From 1990 to 1999, some organisations reported that the Indian Armed Forces, its
paramilitary groups, and counter-insurgent militias were responsible for the deaths of 4,501
Kashmiri civilians. During the same period, there were records of 4,242 women between the ages
of 7–70 being raped.21 Similar allegations were also made by some human rights organizations.22

19
Durrani, “Kashmir- jugular vein of Pakistan”, https://www.dawn.com/news/223610 visited on 20.08.2019
at 7.45PM
20
Azad Kashmir Regiment, http://www.pakistanarmy.gov.pk/AWPReview/TextContent.aspx?pId=159&rnd=460
visited on 20.08.2019 at 8.23PM
21
Suliman Anver, “Cry & Anguish for Freedom in Kashmir” https://www.mediamonitors.net/cry-and-anguish-for-
freedom-in-kashmir/ retrieved on 20.08.2019 at 9.15PM
22
Human Rights Watch World Report 2001: India: Human Rights Developments"
https://www.hrw.org/legacy/wr2k1/asia/india.html retrieved on 20.08.2019 at 9.33PM

18
 CHAPTER-V
ART. 370 & ART. 35A OF THE CONSTITUTION OF INDIA AND THE JAMMU &
KASHMIR – FROM ENACTMENT TO ABROGATION A BRIEF NOTE

ARTICLE 370-Explained:
Included in the Constitution on October 17, 1949, Article 370 exempts J&K from the Indian
Constitution (except Article 1 and Article 370 itself) and permits the state to draft its own
Constitution. It restricts Parliament’s legislative
powers in respect of J&K. For extending a central law
on subjects included in the Instrument of Accession
(IoA), mere “consultation” with the state government
is needed. But for extending it to othe r matters,
“concurrence” of the state government is mandatory.
The IoA came into play when the Indian
Independence Act, 1947 divided British India
into India and Pakistan.
For some 600 princely states whose sovereignty was
restored on Independence, the Act provided for three
options: to remain an independent country, join
Dominion of India, or join Dominion of Pakistan —
and this joining with either of the two countries was
to be through an IoA. Though no prescribed form was provided, a state so joining could specify
the terms on which it agreed to join. The maxim for contracts between states is pacta sunt
servanda, i.e. promises between states must be honoured; if there is a breach of contract, the
general rule is that parties are to be restored to the original position. A number of other states
enjoy special status under Article 371, from 371A to 371J.

THE INSTRUMENT OF ACCESSION-Terms Included:

The Schedule appended to the Instrument of Accession gave Parliament the power to legislate in
respect of J&K only on Defence, External Affairs and Communications. In Kashmir’s Instrument of
Accession in Clause 5, Raja Hari Singh, ruler of J&K, explicitly mentioned that the terms of “my
Instrument of Accession cannot be varied by any amendment of the Act or of Indian

19
Independence Act unless such amendment is accepted by me by an Instrument supplementary to
this Instrument”. Clause 7 said “nothing in this Instrument shall be deemed to commit me in any
way to acceptance of any future constitution of India or to fetter my discretion to enter into
arrangements with the Government of India under any such future constitution”.

ENACTMENT OF ART. 370:

The original draft was given by the Government of J&K. Following modification and
negotiations, Article 306A (now 370) was passed in the Constituent Assembly on May 27, 1949.
Moving the motion, Ayyangar said that though accession was complete, India had offered to
have a plebiscite taken when the conditions were creat ed, and if accession was not ratified then
“we shall not stand in the way of Kashmir separating herself away from India”. On October 17,
1949, when Article 370 was finally included in the Constitution by India’s Constituent Assembly,
Ayyangar reiterated India’s commitment to plebiscite and drafting of a separate constitution by
J&K’s Constituent Assembly.

ART.370- A TEMPORARY OR PERMANENT PROVISION?

It is the first article of Part XXI of the Constitution. The heading of this part is ‘Temporary,
Transitional and Special Provisions’. Article 370 could be interpreted as temporary in the sense
that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it.
Another interpretation was that accession was temporary until a plebiscite. The Union
government, in a written reply in Parliament last year, said there is no proposal to remove Article
370. Delhi High Court in Kumari Vijayalaksmi (2017) too rejected a petition that said Article 370
is temporary and its continuation is a fraud on the Constitution. The Supreme Court in April 2018
said that despite the headnote using the word “temporary’, Article 370 is not temporary. In
Sampat Prakash (1969) the SC refused to accept Article 370 as temporary. A five-judge Bench said
“Article 370 has never ceased to be operative”. Thus, it is a permanent provision.

REPEALING OF ART. 370- Can it be done?

Yes, Article 370(3) permits deletion by a Presidential Order. Such an order, however, is to be
preceded by the concurrence of J&K’s Constituent Assembly. Since such an Assembly was
dissolved on January 26, 1957, one view is it cannot be deleted anymore. But the other view is
that it can be done, but only with the concurrence of the State Assembly.

20
SIGNIFICANCE OF ART. 370 FOR THE INDIAN UNION

Article 370 itself mentions Article 1, which includes J&K in the list of states. Article 370 has been
described as a tunnel through which the Constitution is applied to J&K. Nehru, however, said in
Lok Sabha on November 27, 1963 that “Article 370 has eroded”. India has used Article 370 at
least 45 times to extend provisions of the Indian Constitution to J&K. This is the only way
through which, by mere Presidential Orders, India has almost nullified the effect of J&K’s special
status. By the 1954 order, almost the entire Constitution was extended to J&K including most
Constitutional amendments. Ninety-four of 97 entries in the Union List are applicable to J&K; 26
out of 47 items of the Concurrent List have been extended. 260 of 395 Articles have been
extended to the state, besides 7 of 12 Schedules.

The Centre has used Article 370 even to amend a number of provisions of J&K’s Constitution,
though that power was not given to the President un der Article 370. Article 356 was extended
though a similar provision that was already
in Article 92 of the J&K Constitution,
which required that President’s Rule could
be ordered only with the concurrence of
the President.

To change provisions for the Governor

being elected by the Assembly, Article 370
was used to convert it into a nominee of the President. To extend President’s rule beyond one
year in Punjab, the government needed the 59th, 64th, 67th and 68th Constitutional
Amendments, but achieved the same result in J&K just by invoking Article 370. Again, Article 249
(power of Parliament to make laws on State List entries) was extended to J&K without a
resolution by the Assembly and just by a recommendation of the Governor. In certain ways,
Article 370 reduces J&K’s powers in comparison to other states. It is more useful for India today
than J&K.

21
IS ART. 370 NECESSARY FOR J&K BEING A PART OF INDIA?
Article 3 of the J&K Constitution declares J&K to be an integral part of India. In the Preamble to
the Constitution, not only is there no claim to sovereignty, but there is categorical
acknowledgement about the object of the J&K Constitution being “to further define the existing
relationship of the state with the Union of India as its integral part thereof. Moreover people of
state are referred as ‘permanent residents’ not ‘citizens’.” Article 370 is not an issue of integration
but of autonomy. Those who advocate its deletion are more concerned with uniformity rather
than integration.

ART. 35A-Explained:
Article 35A stems from Article 370, having been introduced through a Presidential Order in 1954.
Article 35A is unique in the sense that it does not appear in the main body of the Constitution —
Article 35 is immediately followed by Article 36 — but comes up in Appendix I. Article 35A
empowers the J&K legislature to define the state’s permanent residents and their special rights
and privileges.

GROUNDS OF CHALLENGING ART. 35A:

The Supreme Court will examine whether it is unconstitutional or violates the basic structure of
the Constitution. But unless it is upheld, many Presidential Orders may become questionable.
Article 35A was not passed as per the amending process given in Article 368, but was inserted on
the recommendation of J&K’s Constituent Assembly through a Presidential Order. Article 370 is
not only part of the Constitution but also part of federalism, which is basic structure.
Accordingly, the court has upheld successive Presidential Orders under Article 370.

Since Article 35A predates basic structure theory of 1973, as per Waman Rao (1981), it cannot be
tested on the touchstone of basic structure. Certain types of restrictions on purchase of land are
also in place in several other states, including some in the Northeast and Himachal Pradesh.
Domicile-based reservation in admissions and even jobs is followed in a number of states,
including under Article 371D for undivided Andhra Pradesh. The Centre’s recent decision
extending to J&K reservation benefits for SCs, STs, OBCs and those living along international
borders, announced last revcently. throws the spotlight back on Article 35A.

22
 CHAPTER-VI
HISTORIC DECISION OF ABROGATION OF ART. 370 & 35A

The ruling BJP took a giant political and Constitutional leap by abrogating Article 370 that gave
Jammu and Kashmir a special status and bifurcated the State into two Union Territories (UTs).
Through two statutory resolutions that
were introduced and passed on the same
day under the watch of Home Minister
Amit Shah, the enabling provision of
Article 370 that channels the
implementation of Central laws and
Constitutional provisions in Jammu and
Kashmir with the concurrence of the State
Legislature was scrapped. The border
State has also been bifurcated into two
separate UTs: Ladakh, without a Legislative Assembly and Jammu and Kashmir with a Legislative
Assembly with curtailed powers.

BILL PASSED:
The motions and the Jammu and Kashmir Reservation (Second Amendment) Bill were passed by
a voice vote. The Jammu and Kashmir Reorganisation Bill was passed with 125 members voting
in favour of it and 65 voting against it. The Congress, the Left parties, the DMK, the MDMK, the
SP and the RJD voted against the Bill, while the Trinamool Congress walked out. One member
abstained from voting. Earlier in the day, Shah introduced the two statutory resolutions in the
Rajya Sabha.
- The first resolution advocates that Parliament pass the public notification issued by the
President with regard to Article 370. It said, “In exercise of the powers conferred by
Clause (3) of Article 370 of the Constitution of India, the President, on the
recommendation of Parliament, is pleased to declare that as on 5th of August, 2019, all
clauses of the said Article 370 shall cease to be operative except Clause (1) thereof…”
- The second resolution moved by the Home Minister concerned reorganisation of the
border State into two Union Territories.

23
“The Ladakh division of the State of Jammu and Kashmir has a large area but is sparsely
populated with a very difficult terrain. There has been a long pending demand of the people of
Ladakh to give it the status of Union Territories to enable them to realise their aspirations. The
Union Territory of Ladakh will be without Legislature,” said the statement of object for
reorganisation of the State.

“Further, keeping in view the prevailing internal security situation, fuelled by cross-border
terrorism in the existing State of Jammu and Kashmir, a separate Union Territory for Jammu and
Kashmir is being created. The Union Territory of Jammu and Kashmir will be with legislature,”

24
 CONCLUSION

The Jammu & Kashmir which forms an integral part of the undivided India has enjoyed
sovereignty since ages. Its reference can be traced in the texts of Rajatarangini and other historical
references. After having discussed various aspects above, I understand that there are many views
in the society as to how Kashmir is been observed on the global map.

The issue of Kashmir which was offspring of the Independence Act and the partition of India and
Pakistan thereby is not seen the light of the day in recent days. From very first day there exists
the difference of opinions on the Kashmir’s dominion status. If we analyze the past history and
facts of Kashmir throughout it is well noticed that none took interest in understanding the Wish &
Will of the People of Kashmir. What exactly the people of Kashmir want? It is still an unanswered
question. When British prepared the Independence Plan for India, it was finalized amongst
British, India and Pakistan leaders. If there were any dissent on the proposal then the same would
have been out rightly refused at that point of them. However, in such case there was further
delay in getting Independence. Both Nehru and Jinnah equally responsible for the Kashmir
conflicts that were result of Post Independent era. On the other hand, I also feel that it was the
need of the hour at that point of time to take such decisions in order to get free from British
administration. We have to think on the circumstances that prevailed in 1947 and not in 2019.

India attained Independence on 15 August 1947 forming two independent nations India and
Pakistan. Division was inevitable as per the British Govt. and to certain extent I believe it was
right else there would have been created a cold war situation in North and North Western India
resulting in daily bloodshed.

The First Prime Minister Pt. Jawaharlala Nehru, the key man in getting Kashmir accessed to the
Union of India took the consent from Raja Hari Singh in the Instrument of Accession. If we
understand the terms signed in IoA it is very much clear that Raja Hari SIngh, who wanted
Kashmir to be an Independent State has left no option but to join the Indian Union. The decision
of Hari Singh even though tied with terms and conditions, it is very much clear that his
inclination towards Pakistan is negative and that is implied acceptance of his accession to India.
Though the decision was taken in a short span of time it is a remarkable historic decision joining
the hands of India.

25
Off late, Kashmir is considered as a Islamic state is not true in facts. It is home for many Hindu
Pilgrimage and it is believed that it has witnessed the birth of Shiva Movement in North likewise
the Veerashiva Movement in South. The Kashmiri Pandits who are now spread across India are
the original inhabitants of the region. On other side in Leh-Ladakh region, we have Buddhists
communities spread. It is the greed for power developed in the Kashmiri politicians that have
created such unrest in the region.

Coming to the core area of this paper, Abrogation of Art. 370 and Art. 35A of the Constitution. I
have dealt in detail on the process and significance of the issue. Over here, I am putting the
process for Constitutional tests in which it appears to be that, the move taken by the Union
Govt. particularly Home Minister Shri. Amit Shah who piloted the Bill in Parliament has executed
the process in accordance with law and according to him the bill is in the national interest and
there is no Assembly in Kashmir thereby the Parliament absorbs the power to make laws for such
state and acted accordingly. If we look at the responses across the Parliament and world, the
question is not about the abrogation of Art. 370 and 35A but the Question is the Govt. has not
followed the set rules to make such amendments. I agree to this stand as the imposition of
President Rule on Kashmir prior to abrogation was the preparation of abrogation and it appears
to be a Colorable Legislation. Secondly, earlier Orders of President was also not with the consent
of State Assembly of Kashmir and it violates the IoA Terms and provisions of Art. 368 of the
Constitution. The plebiscite of the people of Kashmir still remains unanswered which was even
demanded by Constitutional framers, Raja Hari Singh as well as UN. True Answer of Kashmiris
lies their if plebiscite is carried as per set principles.

Finally, I conclude stating that, Abrogation was the need of the time as on date to form a Unified
Nation and protect the interest of the people of Kashmir who are now the Citizen of One India.
But the process followed is in contrary to the Democratic values and a threat to the Federal
character of the constitution. Sooner or later, it has to be rectified and ratified legally. I wish a
peaceful environment for my beloved brothers and sisters of the newly formed Union Territories
of Jammu & Kashmir and Ladakh.

26
 BIBLIOGRAPHY

I. The Constitution of India, Bare Act

II. Seervai H.M, “Constitutional Law of India” Vol.-3, Fourth Edn-1991, New
Delhi: Universal Law
III. Basu Durga Das, “Commentary on the Constitution of India” Vol.-10 Eighth
Edn. Nagpur: Lexis Nexis
IV. Malik Surendra, “Complete Digest of Supreme Court Cases” Vol.-11, Second
Edn. Lucknow: Eastern Book Co.
V. Encyclopedia Britannica
VI. Noorani. A.G, The Kashmir Dispute”
VII. Schofield, “Kashmir in conflict”
VIII. The Hindustan Times
IX. Ministry of External Affairs Reports
X. Jammu & Kashmir Tourism Development Corporation Reports
XI. Ministry of Law and Justice Gazette Notification
XII. Constitution of Jammu & Kashmir
XIII. Durrani, “Kashmir- jugular vein of Pakistan”
XIV. Azad Kashmir Regiment
XV. Suliman Anver, “Cry & Anguish for Freedom in Kashmir”
XVI. Human Rights Watch World Report 2001: India: Human Rights
Developments"

27