Kashmir Conflict And Article 370

by | Sep 7, 2019

I am writing this on the 15th August 2019, our 73rd Independence Day, a celebration of India’s freedom. But, in the background of partition, many people were killed and millions were displaced. During this time, princely states were asked to join either India or Pakistan and most of them made their choice. Some princely states did not concur, including but not limited to Kashmir, Hyderabad, Junagadh, Travancore and Baluchistan. Most of these were made to join these unions either through coercion or negotiations.

The Maharaja of Kashmir, the Hindu ruler of a Muslim majority state wanted to remain independent. Seeing this, Pakistan decided to invade from the North with a militia of tribal Pashtuns. It is important to note that this Pashtun group committed a lot of atrocities on local population including rapes and murders. When these tribesmen were closing in on Kashmir, the Maharaja asked India for help. Sensing this opportunity, India agreed and decided to help him only on the condition that he would sign the instrument of accession to join India. The Maharaja, out of fear for his life, decided to sign the document and join India. One of the key leaders who initially supported this accession was Sheik Abdullah, the founder of National Conference, a leader who had fought against the Maharaja’s Rule and sought more representation of Muslims in the government during his rule around independence. He made the process of accession of Kashmir to India smooth through a series of negotiations which included Article 370, that gave special provisions to J&K (Jammu and Kashmir)

Article 370

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. Article 370 embodied 6 special provisions for J&K:

  1. It exempted the State from complete applicability of the Constitution of India.
  2. Central legislative powers over the State were limited, at the time of framing, to three subjects of defense, foreign affairs and communications.
  3. Other constitutional powers of Central Government could be extended to the State only with the concurrence of the State Government.
  4. The ‘concurrence’ was only provisional. It had to be ratified by the State’s Constituent Assembly.
  5. The State Government’s authority to give ‘concurrence’ lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension of powers was possible.
  6. Article 370 could be abrogated or amended only upon the recommendation of State’s Constituent Assembly.

In a way, it was a bridge between J&K and the union of India rather than a wall which safeguarded the autonomy of J&K being a part of the Union. Point numbers 4 and 6 are extremely important, as they talk about temporary provision and that this provision could only be amended and done away with, by passing a bill in the state legislative assembly, with the support of the majority of the members in the assembly. In short, you need the consent of the people of J&K if you need to amend this bill. But unfortunately the Central Government this time has given scant regard for the constitution and the wishes of people in J&K by abrogating it through an order given by the president and the governor at a time when there is no government in the state which is currently under president’s rule. This is an act nothing short of treachery and betrayal.

Why is there is a resentment to Indian rule in Kashmir?

This is a question most people watching mainstream media and Bollywood propaganda movies, would have. If you just want to say that it’s because of religion and India’s history with Pakistan, it is a myopic answer because historically, Kashmir valley was a much tolerant place when it came to religion. Pandits ate meat and Muslims prayed at Sufi shrines, with the animosity between the two communities being minimal. This spirit was called ‘Kashmiriyat’. However, I am not saying that religion does not play any role. That would be an understatement.

At the time of independence, several states were not ready to accede to India. Junagadh in modern-day Gujarat was one of them, unwilling to join the Indian Union because the Nawab there preferred to join Pakistan or remain independent. The decision did not go well with the local population which was predominantly Hindu, but this issue was solved with a plebiscite in which more than 99% of the people opted for joining India. In a similar dispute, however, the people of Kashmir were not given a similar option. Even though there was Article 370, the option of not having a plebiscite was seen as a betrayal by the people.

Several movies were shot in Kashmir in the 1960s and 1970s. It was a safe place with a few instances of violence. Resentment to Indian rule remained but it did not culminate into large scale militancy until the 1980s and democratic elections. But unfortunately, the elections of 1987 were rigged by the Rajiv Gandhi government in favour of National Conference and the Congress. Most commentators state that this led to the rise of an armed insurgency movement composed, in part, of those who unfairly lost the elections. This militancy was supported by both Pakistan as well as many Mujahideen fighters who were fighting the Soviets in Afghanistan (as now they had a new cause after the Soviets withdrew from there). Even though there were separatist movements earlier from parties like JKLF (Jammu Kashmir Liberation Front), these were generally secular movements that wanted independence from both India and Pakistan. But the movement after 1987 was hard-line Islamic in nature which also caused the exodus of millions of Pandits from the valley.

The militancy peaked in the 1990s and thousands of soldiers and civilians were killed. The Indian soldiers posted in the valley with draconian laws like AFSPA committed large scale atrocities in the valley including custodial deaths and rapes. Two of the most infamous cases being ‘Kunan Poshpora incident’ and ‘Shopian rape and murder case’. Thousands of missing people lay in unmarked graves across the valley, some of whose relatives are still searching for them.  

Kashmir is the most heavily militarized zones in the world which has just added another 50,000 troops. Have you ever imagined why people throw stones at soldiers and convoys and shout anti-India slogans? Every young Kashmiri living in the valley in the age group of 5 to 35 has only seen violence from the security forces including rapes and murder of people in their community, during most of their lifetime. Is it no wonder that they don’t have a favorable opinion about Indian rule?

This oppression has intensified post removal of Article 370, in Kashmiri villages as well in downtown Srinagar. There were young schoolboys and teenagers who have been arbitrarily picked up by police or army / paramilitary and held in illegal detention. As per the reports from 4 people who visited Kashmir (Jean Drèze, Kavita Krishnan, Maimoona Mollah, Vimal Bhai) during this time, a 11-year-old boy in Pampore who had been held in a police station between 5th and 11th August, has been beaten up. He said that there were boys even younger than him in custody, from nearby villages. Many boys and teens are being picked up from their beds in midnight raids. The only purpose of these raids is to induce fear. Women and girls told of molestation by armed forces during these raids. Parents feared meeting anyone and tell about the “arrests” (abductions) of their boys. They are afraid of Public Security Act cases being filed.

The other fear is that the boys may be “disappeared”, i.e killed in custody and dumped in mass graves of which Kashmir has a grim history. As one neighbour of an arrested boy said, “There is no record of these arrests. It is illegal detention. So if the boy is disappeared/killed, the police/army can just say that they never had him in custody in the first place.” This is just something that we know once the iron curtain is lifted. I am sure that we would hear more horrific stories.

Why scrapping Article 370 is a mistake?

Autonomous regions are not something unique to J&K or to India. Many countries have autonomous provinces with special provisions. This includes Tibet, Hong Kong and Macau in China, Chechniya in Russia, Northern Ireland in the UK, Catalan and Basque Country in Spain, just to name a few. Giving autonomy does not weaken the nation but strengthens it. A country is then mature enough for accepting and accommodating differences of its people. The abolishment of Article 370 has ended the marriage contract between India and J&K, the breach in this agreement also means that the claim that Kashmir is an integral part of India, has also lost its charm.

I would like to mention that I am not an expert on this issue, but I decided to write on this because of the recent disturbing developments. As we know, all sorts of communication including landline telephones, mobile phones and internet services have been shut in the valley. I believe that the best people to write about this are Kashmiris themselves but unfortunately, almost all of them are now housed in the world’s largest open prison as many blood-thirsty genocide loving Indians celebrate their captivity. Some may say that this move would bring development. Well, just to let you know Kashmir fares much better in almost all social development indicators than most Indian states including the prime minister’s home state of Gujarat which he ruled for 15 years, inspite of several years of militancy.

I feel that I have overloaded this blog with content but before coming to the end, I will try to explain this situation of Article 370 and Kashmir with a short story. In this story I am Amit Shah, you are Kashmir, the abusive boyfriend is India and in-laws are people of India. Assuming that you are straight, it’s like me forcing you to marry the abusive stalker without giving you a choice, and telling your in-laws that you are having a happy married life. Since this is an abusive marriage, it will start a fresh circle of violence of militancy similar to the one in 1990s, because people are subject to cruelty, oppression and a probable ethnic cleansing. Imagine that the whole Mumbai is shut down while all the Shiv Sena and MNS leaders are in house-arrest. Does it sound fair? In short, protests are going to intensify and more people are going to pick up guns. An army can always defeat another army but no army can defeat people.

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  1. snehanshu shome

    This is such well written but you have excluded the problem of terrorism hiding behind among the civilian population who could not be touched before because of all the politics involved in the state and involvement of Pakistan through social media and through their propaganda making it a “muslim” issue.

    • Rajat Charantharayil

      I would not not use the word terrorism because, its just a response to India’s atrocities. Actually dealing with militancy is tricky it can only be solved thorough talks and bringing people into confidence and yes the process could take decades and perhaps generations, Shorya’s latest blog explains this aspect. Everyone wants to claim Kashmir as their own but unfortunately, no one wants Kashmiris.


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