Updated: Dec 11, 2020
Revisiting center-state Relations under Indian Constitution: An unsung saga of Kashmir
Two main objectives of the Mountbatten Plan of 1947 :
1. To divide the British India into two parts; India and Pakistan
2. Where would princely sates go in India or Pakistan - Discussions took place and thus British India and Muslim league decided that those areas which were Muslim dominated would go to Pakistan.
Mountbatten plan was enacted and princely states had two options either to join India or Pakistan or to declare themselves as independent states. Sardar Vallabhbhai Patel, V.P. Menon and Jawaharlal Nehru with the help of Lord Mountbatten took the responsibility to integrate the princely states in India. Negotiations went on with the princely states.
‘Carrot and stick’ approach of negotiation was implemented. According to this theory, the Indian government gave incentives to the ‘Maharajas’ of the princely states. Here, incentives were given in the form of ‘Privy Purse’, which means after joining India and being an integrated part of it they will be given funds for maintenance and expenditure. This was the carrot approach. The stick approach says that the princely states which from the Radcliff line were at the side of India were asked that if they didn’t integrate in India then strict military actions would be taken against it. Hence after applying this strategy out of 565 princely states 552 were on the side of India and 13 at the side of Pakistan.
Indian government made each princely state sign an ‘Instrument of Accession’. In which 549 states readily agreed to sign but 3 of them denied. Instrument of Accession is a treaty between the Indian government and Maharajas' of princely states, in which there are conditions given on which ground princely state has integrated in India. For example, the Indian government offered Privy Purse in return princely state join India and says that they will adopt the Indian constitution and will be faithful towards the country.
Junagarh, Hyderabad and Jammu and Kashmir these 3 princely states denied being the part of either India or Pakistan. They wanted themselves to be an independent state altogether. Nizam of Hyderabad felt the same. He wanted Hyderabad to emerge as an independent state. During the time of independence the whole nation was facing religious tension, lawlessness or loot maar was going on and that similar thing was happening in Hyderabad. It failed to stop this lawlessness and thus to help Hyderabad Indian government mainly Sardar Vallabhbhai Patel launch operation polo. In operation polo the neighboring state was sending their police force to assist them. On 19th September1948, the Indian government signed the Instrument of Association with Nizam of Hyderabad. Hence Hyderabad was integrated in India.
Junagarh faced different situations, here the Nizam of Junagarh was Muslim and the population was Hindu in the majority. Nizam wanted to be the part of Pakistan and the population wanted to remain in India. Hence referendum took place. Referendum is a voting system in which people decide they want to become part of India or Pakistan. After the referendum it was decided that Junagarh will be part of India.
When after independence constitution was made the citizen of India got many rights which protected them. Before Jammu and Kashmir is that princely state which had their own legislation and on the basis of that legislation, the citizen of Jammu and Kashmir was getting lots of rights and protection already. From those rights and protection, there was one right i.e. right to property. When Jammu and Kashmir were to be integrated in India or had to adopt the Indian constitution and one question has been raised that right to property which was available to them from before will be their right only or right to property will be open to other citizens of India. The majority of the population of Kashmir is that of Muslim but the raja was Hindu. Henceforth, when Mountbatten plan was being made many people thought that Kashmir will become part of Pakistan. Maharaja Hari Singh signed a standstill agreement with India and Pakistan. It means that maharaja neither wanted to be a part of India nor Pakistan.
Maharaja wanted Jammu and Kashmir to be an independent state. On October 1947, Pakistan slowly started sending his army towards the Kashmir and started occupying the territory of Kashmir and tried to remove the Maharaja from its post. Maharaja Hari Singh got scared and ask assistance from the Indian government. But the Indian government asked on what basis or on what position or relation we should give you the assistance since you are not the part of India. On 26th October 1947, Maharaja Hari Singh and Indian government signed an instrument of accession. Hence Jammu and Kashmir became the part of India. After signing of IOA Indian government send his army to Jammu and Kashmir and removed the Pakistan forces. The result of the war is that in 1st January 1949, both the country had an agreement of ceasefire signed.
The result of the ceasefire agreement is LOC (line of control). It was decided by both the countries army that the amount of land they have occupied is there’s. Hence, Jammu and Kashmir 2/3rd part was with India and 1/3rd part was with Pakistan. After signing the Instrument of Accession Jammu and Kashmir’s new leader was Sheikh Abdullah. Instrument of accession is a treaty in which lots of conditions were there and on basis integration is happening. When Kashmir agreement happened Instrument of Accession was signed.
When the Indian army removed Pakistan's force from Kashmir then Sardar Vallabhai Patel was of the view that India should rage war against Pakistan. But Pt. Jawaharlal Nehru opposed it as he didn’t want more violence to take place. Pt. Jawaharlal Nehru told Mohd. Ali Jinnah that India has signed an instrument of accession with Maharaja Hari Singh thus Jammu and Kashmir are now an integral part of India. Mohd. Ali Jinnah didn’t believe in the instrument of accession and said to be forceful. Pt. Jawaharlal Nehru took the matter to the UN. Thus, the UN denied the instrument of accession and declared Kashmir a disputed area. UN decided to resolve the dispute by plebiscite. Plebiscite is a voting system in which people of Jammu and Kashmir will decide whether they want to be the part of India or Pakistan. But there were two conditions put forward by UN -
1. Pakistan will remove its army force from the occupied region of Kashmir.
2. India will lessen its army force in Kashmir.
After these conditions were fulfilled then the only plebiscite is going to take place and dispute will be resolved. But this never happened. Neither the countries removed their forces nor did the plebiscite take place. During that time there was a new emerging leader in Jammu and Kashmir Sheik Abdullah, he represented many political issues there. The name of his party was All India Jammu and Kashmir National Conference in which he represented the majority population of Jammu and Kashmir. The name of the party was later changed to the National Conference in which he used to represent the suppressed classes of Jammu and Kashmir. When all this chaos was going on whether or not the UN's plebiscite should take place and on the other hand Sheikh Abdullah was emerging as a hero of Jammu and Kashmir. Meanwhile, in India Pt. Jawaharlal Nehru thought of implementing such thing that Jammu and Kashmir should feel that they are still the part of India hence, emerged article 370. A meeting was conducted between Sheikh Abdullah and Indian government which is called as Delhi agreement. In this meeting conditions of the instrument of accession were discussed and thus to incorporate instrument of accession article 370 was brought. In part XXI of the constitution lays article 370. This part provides temporary, transitional, and special provision to12 states out of which one is Jammu and Kashmir.
Article 370 can be divided into three parts :
1. Powers of the parliament -
Generally, parliament has powers to make laws regarding topics listed on the central list and concurrent list for every state but article 370 says that power of parliament regarding the state of Jammu and Kashmir is restricted and parliament can make laws only on those matters of concurrent and state lists which were decided while signing the instrument of accession. Defense, communication, and external affairs cover a total of 31 areas of Central and concurrent lists and parliament can make laws on these 31 matters for Jammu and Kashmir. If any other law has to be made in Jammu and Kashmir then the government should take permission from the state government of Jammu and Kashmir. Procedure of Jammu and Kashmir is firstly parliament will pass laws then that goes to state assembly which will ratify the laws made by parliament. If state assembly ratifies then such laws will be applicable to Jammu and Kashmir. This extra process of ratification or the restrictions to the power of parliament applies through article 370.
2. Laws applicable -
Article 1 and Article 370 of the constitution will be applicable in Jammu and Kashmir apart from these, all those provisions will also be applicable that are specified by President in its presidential order of 1954. This order is modified from time to time. Other constitutional provisions will not be applicable.
3. Can Article 370 cease to exist
Article 370 clause 3 says that if the constituent assembly of Jammu and Kashmir says that article 370 shall be removed or abrogated after this if President too through a public notification says that yes article 370 shall be removed then article 370 will cease to exist.
Existence of Article 35A
Treaty of Amritsar happened in 1846 in which the British Government gave Kashmir to Maharaja Gulab Singh because of which Jammu and Kashmir existed as a princely state. People living in princely states are known as state subjects and people living in other parts of British India are known as British colonial subjects. To recognize the state subjects of Jammu and Kashmir legal provisions were made between the year 1912 - 1932 such as the Hereditary State Subject order of 1927 which says that all the state subjects are entitled to Right to a government office, right to use the land, right to ownership of land, etc. which are not available to non-state subjects.
Jammu and Kashmir has its own flag and constitution which was adopted on 17th November 1956. After adopting article 370 in the constitution, Indian Citizenship extended to the state subjects of Jammu and Kashmir but the leaders and the constituent assembly of Jammu and Kashmir wanted that the laws and state subjects of Jammu and Kashmir shall be treated differently. This is the reason that Delhi Agreement held between the Indian government and Sheikh Abdullah from which article 370 from that very agreement Dr. Rajendra Prasad passed a presidential order on 14th May 1954. From this very order Article 35A came into existence.
Article 35A defines the right of the State Subject (permanent residents) of Jammu and Kashmir. This article permits the local legislature in Indian-administered Kashmir to define permanent residents of the region and it states that existing laws of Jammu and Kashmir and any law state legislature will make in future shall not be declared void on the grounds that it is inconsistent with the constitution or they are against the rights of other citizens of India. Particularly stating Article 35A states that these provisions will not be affected by the constitution. It is forbidden for the outsiders from permanently settling, buying land, holding local government jobs, or winning education scholarships in the region. The article is also termed as the Permanent Residents Law. It bars female residents of Jammu and Kashmir from property rights in the event that they marry a person from outside the state. The provision also extends to such women's children.
The difference between other states and Jammu and Kashmir through article 370 and article 35A are many. Firstly, Jammu and Kashmir have dual citizenship whereas in other states single citizenship is applicable. Secondly, India has a flag and a constitution whereas Jammu and Kashmir has its own flag and citizenship. Thirdly, if parliament wants it can proclaim financial emergency in the states of India but this is not the case with Jammu and Kashmir as a financial emergency cannot be proclaimed there. Fourthly, the difference is tenure of stathe te legislature. In other states, tenure of state legislation is 5 years but in Jammu and Kashmir it is 6 years. Fifthly, difference in right to vote. Universal adult franchise is applicable in whole India and the person resident of that state is eligible to vote for the state assembly elections of that state but the right to vote is not fully applicable in Jammu and Kashmir. Only the permanent residents of Jammu and Kashmir can vote for the state assembly election in Jammu and Kashmir.
After going through all the pros and cons it is now important to know that people of Jammu and Kashmir must realize that revocation of the articles has only helped them. These articles made them special but in a negative way. They were alienated from their own nation for seven decades. No one lost their identity. India as a secular nation has opened its arms but now the challenge lies with the people of Kashmir to how to accept the given opportunity
Authored: Niharika Tiwari
(Lloyd Law College, Greater Noida)