How Kashmir got Article 370: History retold

Hari Singh appeared to chart out his own way without acceding to India or Pakistan. It signed a standstill treaty with Pakistan, which breached the agreement by invading Jammu and Kashmir in October 1947. India did not intervene till Hari Singh signed the Instrument of Accession with India and sought help from New Delhi.

The British trader-rulers had "sold" the dominion of Jammu and Kashmir to Dogra king Gulab Singh for Rs 75 lakh. (Photo:J&K Tourism)

HIGHLIGHTS

• Jammu and Kashmir acquired its modern shape under Ranjit Singh
• Kashmir was first called in Kashyapmar which was corrupted to become Kashmir.
• Hari Singh sought privileges for his people on the lines of a law that denied outsiders right to own property

Kashmir owes its origin to a legendary rishi (ascetic-scholar) Kashyap, who is credited to have reclaimed it from a huge lake that existed where Kashmir Valley is located today. The land was first called in ancient literature Kashyapmar, which was corrupted to become Kashmir.

Maurya emperor Ashoka had a strong connection with Kashmir. He founded the city of Srinagar and brought Buddhism to Kashmir, which saw a number of ruling dynasties till the middle of fourteenth century. Around this time, a Tibetan Buddhist refugee Rinchana, who later converted to Islam, established first Muslim dynasty in Kashmir. When Akbar became the Mughal emperor, he annexed Kashmir to his empire.

The state of Jammu and Kashmir acquired its modern shape under Ranjit Singh, who established a Sikh confederation and annexed Kashmir from the Mughal empire in early 19th century. The administration of Jammu and Kashmir was given to a local chieftain from the Dogra community, who expanded it by capturing Ladakh and Baltistan for the Sikh empire.

By this time, the British rule of East India Company was getting stronger in India. The company had successfully challenged the advance of Sikh empire, whose leader Ranjit Singh was forced to sign a Treaty of Amritsar in 1809, which was formalised in 1846 after first Anglo-Sikh war. This treaty decided the fate of Jammu and Kashmir.

The British trader-rulers "sold" the dominion of Jammu and Kashmir to Dogra king Gulab Singh for Rs 75 lakh. The Dogra king ruled over the regions of Jammu, Kashmir Valley, Gilgit-Baltistan and Ladakh. The arrangement continued till 1947, when the British divided the Indian subcontinent into two countries - India and Pakistan.

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Jammu and Kashmir ruler Hari Singh appeared to chart out his own way without acceding to India or Pakistan. It signed a standstill treaty with Pakistan, which breached the agreement by invading Jammu and Kashmir in October 1947. India did not intervene till Hari Singh signed the Instrument of Accession with India and sought help from New Delhi.

Hari Singh sought special privileges for his people on the lines of a 1927 law that denied outsiders the right to own property in the state. This law restricted the right to own property in Jammu and Kashmir in line of inheritance only. This had been brought apparently to keep the Britishers away from the salubrious Valley of Kashmir.

The Jawaharlal Nehru government agreed to Hari Singh's condition subject to future final settlement. The matter was placed before the Constituent Assembly of India, which was dealing with the task of framing the Constitution of India. After a lot of deliberation, Article 370 was inserted in the Constitution's twenty-first part that proclaimed it to be "Temporary, Transitional and Special Provision".

Article 370 provided for a special status to Jammu and Kashmir, which was granted to it through the Presidential Order of 1954. The Narendra Modi government earlier this week revoked the special status to Jammu and Kashmir through Presidential Order of 2019.

Article 370 has not been scrapped. What does Modi govt move on Kashmir mean?

The Narendra Modi government, in a historic move, announced it was revoking the powers of Article 370, which grants special status to J&K

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Prabhash K Dutta 

New Delhi

August 5, 2019

UPDATED: August 6, 2019 11:31 IST

Prime Minister Narendra Modi with Union Home Minister Amit Shah. (Photo: PTI file)

Much against the clamour raised by many Opposition members in and outside Parliament, what Union Home Minister Amit Shah today said in the Rajya Sabha was not scrapping or abrogating Article 370 of the Indian Constitution.

Article 370 is an enabling provision. It explains which parts of the Indian Constitution have jurisdiction over Jammu and Kashmir, which adopted a separate state constitution for itself during 1950s. Clause 3 of Article 370 empowers the President to decide the limit of the jurisdiction of the Indian Constitution over the state.

Article 370 stays very much as part of the Constitution and cannot be repealed or abrogated without a constitutional amendment in accordance with Article 368. No such bill was moved by Amit Shah in Parliament today.

The government has used the same Article 370 to announce that special status granted under this Article to Jammu and Kashmir has ended. Amit Shah said, "Not all the provisions of Article 370 will now be implemented in Jammu and Kashmir."

This was done through a Presidential Order, which in effect, will supercede previous Presidential Orders issued under Article 370.

In other words, the latest move by the government gives full applicability of the Indian Consitution in Jammu and Kashmir. Earlier, only a set of limited provisions such as foreign relations, communication and defence had jurisdiction over Jammu and Kashmir.

This means the separate constitution of Jammu and Kashmir ceases to be in operation in the state. With state constitution rendered inoperative and Articles 1-2 applicable to Jammu and Kashmir, the central government got the power to redraw the map of the state.

Amit Shah, accordingly, moved another resolution for bifurcation of Jammu and Kashmir. The resolution, if adopted by Parliament, turns the existing state of Jammu and Kashmir into two Union Territories of Jammu-Kashmir and Ladakh respectively.

The Union Territory of Jammu-Kashmir will have a legislature. Its new status will be comparable with that of Delhi and Puducherry, only two other Union Territories to have legislatures of their own. The Governor of Jammu and Kashmir will now become Lieutenant Governor.

own. The Governor of Jammu and Kashmir will now become Lieutenant Governor.

Ladakh will have a separate identity as Union Territory much like five other centrally administered areas which don't have separate legislatures of their own. Its status will be comparable with that of Lakshadweep, Andaman and Nicobar Islands, Chandigarh and others.

The separate Ranbir Penal Code (RPC) will give way to the Indian Penal Code. The separate state constitution allowed a separate penal code for Jammu and Kashmir. With separate constitution gone, the Indian Penal Code will supercede the RPC.

Article 35A, making a distinction between the permanent residents of Jammu and Kashmir and the outsiders, will also cease to have any effect. It remains part of the Constitution as annexure of the Constitution. Its constitutional status - or lack of it -- does not change with the latest move of the Modi government on Article 370.

The sectors of education and employment will open up to all Indians without any discrimination that Article 35 brought by means of the clause of permanent residents. The central quota laws in school-college admissions and state government jobs will apply just like other Indian states.

Purchasing land and owning property by people, considered outsiders till now, would be possible. This was considered a major reason preventing corporates setting up big units in Jammu and Kashmir.

The clause relating to permanent residents deny Kashmiri women, who marry non-Kashmiri men, and their children their right of inheritance. They may now claim inheritance in ancestral property.

The status of Jammu and Kashmir police cadre will be redefined. They may be included in DANIPS (Delhi, Andaman and Nicobar Islands Police Services) or may be granted a separate status.