The Irrelevance of Article 370 & the UN Resolution

The Irrelevance of Article 370 and the UN Resolution

                                                                                                  Lalit K Kaul

The Genesis:

The erstwhile Jammu and Kashmir (J&K) state was a princely state at the time of the independence of India and emergence of Pakistan, in the year 1947. All the princely states (around 547 in number) were given the option of choosing to 1) accede to India, 2) accede to Pakistan and 3) remain an independent and sovereign state. While nearly all decided to accede to the India Union, the ruler of erstwhile princely state of J&K, Maharaja Hari Singh, remained indecisive insofar as accession to India or Pakistan was concerned, as he was more inclined to have it as an independent sovereign state. While he was yet to decide firmly on one of the three options, a savagely and barbarous act was unleashed by Pakistan on October 22, 1947 when Pakistan's Pashtun tribal militias crossed the border of the state leading to hitherto unimagined political developments.

The Instrument of Accession:

The Maharaja, not anticipating such an invasion, was not prepared for it. He sought Indian government’s help to thwart the onslaught of marauding tribals aided by Pakistan, but Indian government refused to intervene as J&K had not acceded to India. Hence, to enable intervention Instrument of Accession was signed between Maharaja Hari Singh and the Indian government. The accession of Jammu and Kashmir was accepted by Lord Mountbatten of Burma, Governor-General of India on 27 October 1947.

The instruments of accession executed by the rulers, provided for the accession of states to the Dominion of India (or Pakistan) on three subjects, namely, defence, external affairs and communications.

The Indian Response:

The Indian troops were airlifted to be engaged in the war to push the tribals aided by Pakistani army out of the region. Cease fire was accepted by both the countries having engaged in war for more than a year. Thus a third of the J&K area including Gilgit and Baltistan ceded from India.

The UN Resolution:

After protracted negotiations, both countries had agreed to a cease-fire. The terms of the cease-fire, laid out in a UN Commission resolution on 13 August 1948, were adopted by the Commission on 5 January 1949.

The final resolution adopted had two parts. The first part increased the Commission's strength to five members and asked it to proceed to the Indian Subcontinent at once to mediate between India and Pakistan. The second part dealt with the Security Council's recommendations for restoring peace and conducting a plebiscite. This involved three steps:

·         In the first step, Pakistan was asked to use its "best endeavours" to secure the withdrawal of all tribesmen and Pakistani nationals, putting an end to the fighting in the state.

·         In the second step, India was asked to "progressively reduce" its forces to the minimum level required for keeping law and order. It laid down principles that India should follow in administering law and order in consultation with the Commission, using local personnel as far as possible.

·         In the third step, India was asked to ensure that all the major political parties were invited to participate in the state government at the ministerial level, essentially forming a coalition cabinet. India should then appoint a Plebiscite Administrator nominated by the United Nations, who would have a range of powers including powers to deal with the two countries and ensure a free and impartial plebiscite. Measures were to be taken to ensure the return of refugees, the release of all political prisoners, and for political freedom.

The resolution was approved by nine votes against none. The Soviet Union and Ukraine abstained.

Irrelevance of the UN Resolution:

Pakistan did not withdraw tribesmen and Pakistani nationals from the region. Since the first step was not honoured it absolved India of implementing the second step. Since 1947, four wars have been fought between India and Pakistan and all were initiated by Pakistan. That all wars were initiated by Pakistan is endorsed by Pakistani political analysts and defence personnel including Air Chief Marshal Asgar Ali Khan. All these wars go on to show that the intention of Pakistan is to subvert peace in the region and destabilise it. To keep the region under siege of uncertainty, Pakistan has been actively supporting and encouraging terrorism in the region by way of providing the terrorists training in their camps and the necessary logistics to facilitate border infiltration.

Pakistan has taken upon itself to raise the issue in the UN while being violator of the UN Resolution. In the present context of China Pakistan Economic Corridor (CPEC) which passes through their held part of Kashmir (POK), Pakistan may explain how UN resolution can be implemented. Will Pakistan ask China to vacate the region and wind up the projects in which China has invested billions of dollars! Despite Indian objections, both China and Pakistan have undertaken CPEC project.

The demographic changes that Pakistan has brought in since 1948 cannot be reversed by it as it will cause unprecedented unsettlement of the families living there since decades.

Therefore the ‘first step’ of the UN Resolution can never be implemented and that very fact makes the resolution itself defunct and of no relevance given the present geo-political situation in the region.

The Article 370:      

Article 370 was a political agreement between the Indian Union and the erstwhile state of J&K. It can be said that it was a kind of an extension of the Instrument of Accession signed between the Maharaja of erstwhile princely state and India.

Among other features of the Act, the most important were that the J&K state was to have its Prime Minister (instead of Chief Minister) and Sadar-e-Riyasat (in place of Governor) including its own flag and Constitution, etcetera. Now having a Prime Minister (PM) implies sovereignty of the region and therefore Article 370 defined the relationship between the J&K state and the Indian Union.

Late Sri Sheikh Mohammad Abdullah was the first PM and Sri Karan Singh was the first Sadar-e-Riyasat. On August 8, 1953 Sheikh Abdullah was dismissed from the post of PM and put under house arrest because he was found to be going against the said political agreement.

Late Sri Bakshi Ghulam Mohammad became the second PM of J&K state and continued to be so until 1963 when his resignation- under the Kamraj Plan- was accepted by the then PM of India Late Pandit Jawahar Lal Nehru.

Thereafter Late Sri Ghulam Mohammad Sadiq was made the PM, but was relegated to the Chief Minister (CM) chair in few months time. The Sadar-e-Riyasat was re designated as Governor. So thereafter the J&K state had only CMs and no PM. This implied that politically J&K state was now at par with other states of India except that it had its own flag and constitution. However there were carried out many amendments in the Article 370 through various notifications duly following the process of law like, Presidential orders of 1950, 1952, 1954 and thereafter continually during the period 1955 – 2018. So the said Article had basically lost its significance and role in the J&K state as more and more Central laws were made applicable to it for governance.

The Indira Sheikh Agreement 1974:

Sri Sheikh Abdullah had been released from house arrest and having been an acknowledged leader of the masses, the then PM of India, Smt. Indira Gandhi sought to politically rehabilitate him. So an agreement was signed between the representatives of the two sides that facilitated CM post for Sheikh Abdullah.

Some interesting features of this agreement were:

1.       The residuary powers of legislation shall remain with the State; however, Parliament will continue to have power to make laws relating to the prevention of activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, the Indian National Anthem...

2.       No agreement was possible on the question of nomenclature of the Governor and the Chief Minister.....

Thus Sri Sheikh Abdullah agreed to be the CM instead of the PM of the state and that was a very momentous day in the history of J&K insofar as total integration of the state with the Indian Union was concerned not forgetting the fact that the tallest leader of Kashmiris had given his consent for the same.

So Article 370 lost its relevance politically and over the years was further diluted by in numerous amendments as listed in the aforesaid lines.

The Politics of Blackmail:

While every political party and its leadership knew that the Article 370 had become meaningless yet using it as a so called special relationship that indicated that the J&K state was not part of India plans were set in to motion to destabilize the region to such an extent that India is forced to let go of her legitimate territory. Pakistan came very handy and the Kashmiri leadership (the so called separatists) who led the so called AZADI movement against the Indian State continued to be on pay rolls of Pakistan and their security was guaranteed by the so called main stream political parties! So Indian tax payer was made to pay for the security of those who were supposed to be leading a movement seeking separation of J&K region from India!! Could there be a bigger farce than this! Yet it continued for 30 long years which also saw forced exodus of the Kashmiri Pandits from the valley in 1990 and thereafter. While the leaders prospered the common man suffered trauma as they continued to lose their kith and kin.

The Nexus:

The nexus between the ever growing terror industry in Pakistan and the ever increasing prosperity of the self styled leaders was flourishing on the grounds of Article 370 which was nonexistent.

The international community need to understand that while Pakistan may cater to the demands of the US insofar as taking action against specified terror groups is concerned yet it will continue to encourage terrorism in J&K region. Pakistan is smart enough to play choose and pick game when it comes to promoting terror.

Therefore if terror was to be stopped in its tracks and the nexus broken then whatever remained of Article 370 had to be abrogated and the region fully and truly assimilated with the Indian Union. So J&K region was divided in to two union territories; J&K and Ladakh.