Understanding Back Ground of recent Abrogation of Article 370 and 35 A in Kashmir
The Indian Supreme Court is currently hearing petitions over the special status of the princely state of Jammu and Kashmir under Articles 370 and 35A of the Indian constitution. Some senior Kashmiris reject what they term an ill-intentioned quest by the country’s ruling Bharatiya Janata Party (BJP) to change the state’s demographic character.
The current situation in Indian-ruled Kashmir is that New Delhi has totally lost the battle for hearts and minds in the Muslim-majority state and security forces are in lockdown mode. Indian Prime Minister Narendra Modi is making veiled threats to Pakistan’s access to water resources and to its territorial integrity, blaming Islamabad for the ongoing situation in Kashmir.
The background of princely states
According to Lord Mountbatten’s plan for partition of the subcontinent announced on June 3, 1947, around 500 princely states would accede to India, while 12 states consented to join Pakistan. Five coastal states, the peninsular region adjacent to the present-day Indian state of Gujarat, which each had a Muslim ruler but a Hindu majority, namely Dasuda, Vanod, Jainabad, Bajuna and Radhanpur, in close proximity to Sindh, were to join Pakistan, but because of Indian coercion and threats were not able to become part of Pakistan.
Two states on the Kathiawar peninsula, Junagadh and Manavadar, had formally acceded to Pakistan. They had Muslim rulers but Hindu majorities. These were forcibly occupied by India in 1948. Later, the state of Hyderabad Deccan, with a sizable Muslim population and a Muslim ruler, not contiguous to Pakistan, situated on the banks of the Arabian Sea, bounded by the Gulf of Kutch to the west and the Gulf of Khambhat to the east. It was brutally invaded and occupied.
The Pakistani leadership did not see any problem with the accession of states within or adjacent to it, including Jammu and Kashmir (J&K), which had an overwhelming Muslim majority population but was ruled by a Hindu raja. However, the Indian military occupied J&K; only one-fifth of it was seized by Pakistan, which is named Azad Kashmir and is now administrated by Pakistan.
Later, Indian security forces subdued the people of all occupied states except for the people of Kashmir, who did not give in. Even today Kashmiris resist Indian occupation.
What are Articles 370 and 35A?
The Indian political leadership, instead of attending to United Nations resolutions over Kashmir, tried to pacify Kashmiris through different legal deceptions. In 1949, Jawaharlal Nehru struck a deal with Sheikh Mohammed Abdullah, an influential political figure in Kashmir, and inserted Article 370 into the Indian constitution. The article defines Kashmir’s political relationship with New Delhi by granting special status to J&K. It restricts New Delhi’s legislative jurisdiction to defense, foreign affairs, and communications.
In 1954, through a presidential order, Article 35A was passed under Article 370 (1) (d) of the Indian constitution. The article accords special rights and privileges of the permanent residents of Kashmir in government jobs, land acquisition and other public projects.
On September 14, 2018, the Indian Supreme Court adjourned the hearing on petitions challenging the validity of Article 35A of the constitution to January next year in view of the ongoing law-and-order situation in the Kashmir Valley.
The Supreme Court’s hearing on the annulment of Article 35A has once again created fear in the valley. Former J&K chief minister Mehbooba Mufti said her Peoples Democratic Party (PDP) would not contest the planned polls in Kashmir and “will go to any extent to protect Article 35A.”
Article 370 and Article 35A have been a contentious issue ever since the state of Jammu and Kashmir was annexed to the Republic of India. India has avoided resolution of the Kashmir question through UN resolutions and has concocted many political and legal strategies to portray settlement of the issue unilaterally.
Judicial activism has been one of the key features of South Asia since 1980. The judiciaries in Pakistan and India, on numerous occasions, have overturned controversial policies of their respective governments in the greater public interests and attempted to deliver justice to the weaker sections of society.
The Supreme Court of India may decide the issue on the basis of morality and ethics by rising above shallow patriotism. The Indian apex court may decide not to attend to the petitions that go against UN resolutions, but rather bind its government to settle sincerely the fate of Kashmiris who are being humiliated on a daily basis. The Indian Supreme Court’s action on these petitions may become a beacon of hope and prosperity for the masses of South Asia.
The article was first published at Asia Times