Special status to Jammu and Kashmir: Problems and Solution?

Author, Dr. Ravishankar Mor, Asst. Prof., Dept. of Law, Yeshwant Mahavidyalaya, Wardha. Raman Post Doctoral Fellow

“Jammu and Kashmir, a heaven on earth”

“Aggar iss dharti par swarg kanhi hai, to bas, yanhi hai, yanhi hai, yanhi hai” this is what popularly said about the beauty of Kashmir.

Once a princely state is now ruled and administered by three Asian countries, India, Pakistan and China. 60 % of the erstwhile state is under the Administration of India as an Indian state, 30% is occupied by the Pakistan and called as Azad Kashmir or Pakistan occupied Kashmir while 10% territory is under direct control of China as Aksai Chin.

State of Jammu and Kashmir administered by India comprise of three regions, Kashmir valley with 97% Muslim population, Jammu with 67% Hindus and Laddakh with 47% Buddhist ((For further geographical details and Map please see http://en.wikipedia.org/wiki/Jammu_and_Kashmir)).

There are separatist, but opinion survey shows that only Kashmir valley support such view, while Jammu and Laddakh region are not in favor of independence or separation from India.

Present political status and government in Jammu and Kashmir:

Article 370 ((http://en.wikipedia.org/wiki/Article_370))of the constitution of India confers special status on J&K. Considerable autonomy is enjoyed by the state and Union Governments power extend only to the defence, external affairs and communication while in case of its other constituent states, Union Government can pass laws on all the subject mentioned in schedule seven of the constitution, J & K have its own flag and Constitution unlike other states of India, Constitution of Kashmir declares that J&K is an integral part of India, almost 24 seats in state assembly are kept vacant for the region of Pak occupied Kashmir.

Overview of Kashmir problem:

Maharaja Hari Singh signed instrument of accession with India when Pakistani army try to invade the state in 1948 and Maharaja want Indian army to defend the State, as a pre condition Government of India want Maharaja Hari Singh to sign instrument of accession, which he did unconditionally ((Please visit http://en.wikipedia.org/wiki/File:Kashmir-Accession-Document-a.jpg to view original instrument of accession signed by Maharaja Hari Singh of Jammu and Kashmir.)).

What is the Kashmir issue?

Pakistan wants India to take referendum in Kashmir to know the opinion of People as per its promise and as per the resolution of august 18, 1948 of UN general assembly.

India does not wish to take referendum, as people of Kashmir participated in General elections in 1951 till date and instrument of accession was signed unconditional by the rural of Kashmir, but want Pakistan to withdraw its forces from Pak Occupied Kashmir as per the terms of same resolution of UN assembly.

Mistakes India commits:

First mistake: Lord Mount Baton, Governor General of India, accept the instrument on 27th Oct. 1948 and wrote in reply, may be after consultation with pt. Jawaharlal Nehru, that referendum will be conducted later on once the peace is restored in the state.

Second Mistake: As the instrument of accession signed by princely states gave authority to the Dominion on India to legislate for state in three matters, Defence, External affairs and Communication and a few ancillary matters only. The Congress viewed this as hampering its ability to frame policies that brought about social justice and national development. Consequently, they sought to secure to the central government the same degree of powers over the former princely states as it had over the former British provinces. In May 1948, at the initiative of V. P. Menon, a meeting was held in Delhi between the Rajpramukhs of the princely unions and the States Department, at the end of which the Rajpramukhs signed new Instruments of Accession which gave the Government of India the power to pass laws in respect of all matters that fell within the seventh schedule of the Government of India Act 1935. This second instrument of accession was not signed by the Ruler or Rajpramukh of Jammu and Kashmir ((For further details readers may visit http://en.wikipedia.org/wiki/Political_integration_of_India)).

Third mistake: Insertion of Article 370 in the Constitution of India, which conferred constitutional protection to the special status as against other princely states.

Fourth Mistake (Blunder I): Pt. Jawaharlal Nehru on being failed to conduct referendum, when Jammu and Kashmir actively participated in first general election approach United Nations for resolving issue with UN arbitrators.

Fifth Mistake (Blunder II) : India failed to resolve long pending issue with Pakistan even after entire Pakistani army surrendered to India in the war of 1971, and allow to maintain status quo with Line of Control than demarking international borders and taking control of Pak occupied Kashmir.

The above five mistakes have resulted into Pakistan sponsored insurgency in the State of Jammu and Kashmir since 1980’s. Crores of rupees and hundreds of life are sacrificed every year in combating insurgency, in addition to loss of revenue.

What can be done?

Article 370 is the sole protector of special status of Jammu and Kashmir, an agreement between India and Sheikh is also there whereby Government of India has promised State of Jammu and Kashmir that Article 370 will not be amended unilaterally to the disadvantage of the State.

Let us examine the Constitutional position objectively in this regard; Article 368 ((http://www.indiankanoon.org/doc/594125/))of the Constitution empowers the Parliament to amend the constitution except basic structures, as laid down in Keshwananda Bharti’s case ((AIR 1973 SC 1461)). Special status of Jammu and Kashmir was considered by the constituent assembly as a temporary measure and therefore cannot be held as a Basic structure of the constitution immune from the amendments. As to agreement between then Prime Minister and Chief minister of the state contrary to the constitution cannot be said to be enforceable and do not enjoy the protection of law.

Therefore in the existing form President of India may change the special status by notification after passing resolution in the state assembly of Jammu and Kashmir and if this pre-condition of resolution in state assembly is modified by the constitutional amendment, president may issue notification whereby withdrawing the special status to Jammu and Kashmir.

What if special status is removed in this manner ((Views expressed in this article are solely of the author and the publisher neither endorses nor takes responsibility of any kind for the same, this shall not be taken as the views of the publishers.))?

Pakistan may raise the issue in UN general assembly, which Pakistan is otherwise also raising invariably. UN Security Council cannot take up the matter immediately as terrorism in the state is a well known fact.

Even if matter is taken up by the UN security Council as Russia has helped us by using its veto against any resolution forcing India to change its stand can be obtained by further strengthening relations with our age old ally. Russia has helped us when India took control territories in possession of Portuguese government, i.e. Goa etc. by using its veto against the UN Security Council resolution.

Author sincerely believe that Pakistan will not repeat the mistake by indulging into full scale war with India on this issue, as both the countries are Nuclear powers, Pakistan is struggling to set its economy right, there are internal disturbances in bordering areas of the Pakistan. In such circumstances, even if Pakistan miscalculate the risk and go for limited conventional was like Kargil India should be ready even for that as resolving issue is now must for projecting India as a strong country with capabilities to resolve international disputes, if it sincerely wish to claim permanent seat in UN security council.


http://www.jammu-kashmir.com/documents/instrument_of_accession.html visited on 20th October 2013, at 6 pm.