ARTICLE 370 as in the Constitution of India

Note - Clause (2) and Clause (3) can be referred to for further knowledge of the context but main discussion will revolve around the provisions of Clause (1) only.

370. Temporary provisions with respect to the State of and (1) Notwithstanding anything contained in this Constitution,— ​ (a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir; (b) the power of Parliament to make laws for the said state shall be limited to— (i) those matters in the Union List and the Concurrent List which, in consultation ​ ​ ​ ​ with the Government of the State, are declared by the President to correspond to ​ ​ ​ ​ matters specified in the Instrument of Accession governing the accession of the ​ ​ State to the Dominion of India as the matters with respect to which the Dominion ​ ​ Legislature may make laws for that State; and (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify. Explanation: For the purpose of this article, the Government of the State means the ​ person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of ​ ​ ​ ​ Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office. (c) the provisions of article 1 and of this article shall apply in relation to that State; (d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government. (2) If the concurrence of the Government of the State referred to in paragraph (ii) ​ of sub-clause (b) of clause (1) or in the second provision to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon. (3) Notwithstanding anything in the foregoing provisions of this article, the ​ President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification. ______

Some Key Terms, Explained –

Article 1 – It states that India shall be a union of states, including territories ​ of states, union territories, and any acquired territories Article 238 – It laid down the provisions for governance of the 9 ‘Part-B’ ​ states, but was revoked in 1956 after reorganization of states Part-B states – These included 9 states, including Jammu and Kashmir, ​ which were former princely states Union List – This includes a list of 100 subjects, on which the Central ​ government has sole legislation Concurrent List – This includes a list of 52 subjects, on which legislation of ​ both – Central and State government are considered Government of the state – Here, it refers to the Governor (Sadr-i-Riyasat) ​ of Jammu and Kashmir, appointed by the President, on the recommendation of Legislative Assembly of Jammu and Kashmir Dominion of India – India was a ‘Dominion’ as head of state was British, ​ until India was declared a republic on 26 January, 1950 Instrument of Accession – It was the official document signed by Maharaja ​ , ruler of princely state of Jammu and Kashmir, while agreeing to accede to India

The full text of the Instrument of Accession (Jammu and Kashmir) executed by Maharaja Hari Singh on 26 October 1947 and accepted by Lord ​ Mountbatten of Burma, Governor-General of India, on 27 October 1947 ​ ​ ​ (excluding the schedule mentioned in its third point) is as follows: Whereas the Indian Independence Act 1947, provides that as from the fifteenth day ​ ​ of August, 1947, there shall be set up an Independent Dominion known as India, and that the Government of India Act, 1935 shall, with such omission, additions, ​ ​ adaptations and modifications as the governor-general may by order specify, be applicable to the Dominion of India. And whereas the Government of India Act, 1935, as so adapted by the governor-general, provides that an Indian State may accede to the Dominion of ​ ​ India by an Instrument of Accession executed by the Ruler thereof. Now, therefore, I Shriman Inder Mahander Rajrajeswar Maharajadhiraj Shri Hari Singhji, Jammu and Kashmir Naresh Tatha Tibbetadi Deshadhipathi, Ruler of Jammu and Kashmir State, in the exercise of my sovereignty in and over my said State do hereby execute this my Instrument of Accession and 1. I hereby declare that I accede to the Dominion of India with the intent that the governor-general of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of this my Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State of Jammu and Kashmir (hereinafter referred to as "this State") such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India, on the 15th day of August, 1947, (which Act as so in force is hereafter referred to as "the Act"). 2. I hereby assume the obligation of ensuring that due effect is given to the provisions of the ACT within this state so far as they are applicable therein by virtue of this my Instrument of Accession. 3. I accept the matters specified in the schedule hereto as the matters with respect to which the Dominion Legislatures may make laws for this state. 4. I hereby declare that I accede to the Dominion of India on the assurance that if an agreement is made between the Governor General and the ruler of this state whereby any functions in relation to the administration in this state of any law of the Dominion Legislature shall be exercised by the ruler of this state, then any such agreement shall be deem to form part of this Instrument and shall be construed and have effect accordingly. 5. The terms of this my Instrument of accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947 unless such amendment is accepted by me by an Instrument supplementary to this Instrument. 6. Nothing in this Instrument shall empower the Dominion Legislature to make any law for this state authorizing the compulsory acquisition of land for any purpose, but I hereby undertake that should the Dominion for the purposes of a Dominion law which applies in this state deem it necessary to acquire any land, I will at their request acquire the land at their expense or if the land belongs to me transfer it to them on such terms as may be agreed, or, in default of agreement, determined by an arbitrator to be appointed by the Chief Justice Of India. 7. Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution. 8. Nothing in this Instrument affects the continuance of my sovereignty in and over this state, or, save as provided by or under this Instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this state or the validity of any law at present in force in this state. 9. I hereby declare that I execute this Instrument on behalf of this state and that any reference in this Instrument to me or to the ruler of the state is to be construed as including to my heirs and successors. Given under my hand this 26th day of OCTOBER nineteen hundred and forty seven.

Hari Singh Maharajadhiraj of Jammu and Kashmir State. I do hereby accept this Instrument of Accession. Dated this twenty seventh day of October, nineteen hundred and forty seven. (Mountbatten of Burma, Governor General of India).

Some Key Terms, Explained –

Indian Independence Act, 1947 – It is an Act in the Parliament of United ​ Kingdom, which partitioned British India into two new dominions of India and Pakistan Government of India Act, 1935 – This Act imparted autonomy to the ​ provinces of British India and laid down provisions for establishment of ‘Federation of India’ Instrument – The recurrence of this word refers to this document itself, i.e., ​ Instrument of Accession

Historical Roots As it happened, and still continues...

In 1947, Kashmir, the largest of 526 princely states, was faced with a dilemma. A Hindu maharaja ruling over a state with the major ethnicity being Muslims, had to decide whether to join India or Pakistan. Maharaja Hari Singh initially wanted Kashmir to remain an independent state, but when Pakistan came for Kashmir, Hari Singh decided to join India, in exchange for military aid. This accession was the source of conflict, contested by Pakistan, so they went to war in 1947-1948. In 1948, India chose to refer the dispute to the (UN henceforth), which asked both sides to withdraw their troops. The UN also called for a plebiscite after annexation of troops to be held to allow Kashmiris the right of self-determination, that is, to determine which nation they would join. India, confident of winning the referendum formed an emergency government with as the chief minister (the then most influential Kashmiri leader). Pakistan, though, ignored the UN mandate and continued fighting, holding on to whatever territory that was in its control.

The war was halted in 1949 with a United Nations supervised ceasere and the establishment of a 500-mile ceasere line patrolled by the UN Military Observer Group in India and Pakistan (UNMOGIP), although small-scale attacks continued. 1957 is when Kashmir was granted the special status under Article 370 of the Indian Constitution, formally including Kashmir in the Indian Union. This article was enacted to protect the rights of the Kashmiris, and includes giving the state a certain amount of flexibility in state autonomy. Hostilities recurred in 1965, but the ceasere line remained. Ceasefire was re-established. Both sides resolved to end the disputes, the Tashkent agreement was signed on the first of January, 1966.

But, the sudden death of Shastri, and a turnover of power in Pakistan due to an uprising led by General Yahya Khan got all pleas for resolution back to square one. Two further wars between India and Pakistan, in 1965 and 1971, resulted in the establishment of the present day “”. It was renamed “Line of Control” (LOC) with the 1972 Shimla Agreement between India and Pakistan, which reiterated the plea for a peaceful solution, and acted like a revival of the promises made in Tashkent. During this time, both India and Pakistan were under domestic turmoil. India faced an emergency under the aegis of Indira Gandhi in 1975, and Pakistan in 1977 reverted back to military dictatorship. Moreover, during this time there was increasing dissent between the residents of Kashmir, the domestic turmoil, and attempts to install state governments and manipulate existing democratic structures deeply angered the Kashmiris. Until 1989, the ghting between the two countries was restricted to each side’s respective armed forces. Since that year, however, a separatist movement has been waged counter to the Indian government with support from elements both indigenous and foreign (primarily Pakistani) to Kashmir. Pakistan started Guerilla warfare, and pro-Pakistani militants struck with a reign of terror, and attempted to drive out all Hindus from the valley. All along, there was regular exchange of fire at the border. Slowly, India’s confidence about the plebiscite decreased. A country once so confident about regaining power in the 1950s was now hiding behind the Shimla pact, and avoiding third party mediation by the 1990s. Kashmir was in a very sad state.

India and Pakistan both tested nuclear devices in May 1998, and then in April 1999 test-fired missiles in efforts to perfect delivery systems for their nuclear weapons. Although Pakistan claims that its missiles are an indigenous effort, in July 1999 Indian customs agents seized components shipped from North Korea which they claim were destined for Pakistan's missile programme.

When the Indian Prime Minister, Atal Bihari Vajpayee, set out to Lahore by bus on February 20, 1999, inaugurating the four times a week Delhi-Lahore-Delhi bus service, the world felt that such a genuine effort at friendly neighbourhood relations would lower the tension along the Line of Control in Kashmir. ​ ​

But, all hopes of diplomacy disappeared once the cross-LOC firing in Kargil began during the mid-1990s. The death toll, including both soldiers and civilians, was more than 30,000. Thus began the .

In the first week of August 1998 Indian and Pakistani troops exchanged artillery fire, described by locals as heavier than that of the 1948 and 1965 wars put together. An estimated 50,000 rounds of ammunition were expended and a large number of soldiers and civilians killed. Despite much pressure from the military and the public, the government decided not to cross the LOC. Pakistan too suffered criticism at home for limiting its war to artillery fire across the LOC and shooting down Indian aircraft. When India began patrolling the Kargil heights that summer, it found to its horror that many key posts vacated in the winter were occupied by infiltrators. A patrol was ambushed in the first week of May 1999. India belatedly realised the magnitude of the occupation - which was around 10 km deep and spanned almost 100 km of the LOC - and sent MiG fighters into action on May 26. India contended that the infiltrators were trained and armed by Pakistan, and based in "Azad Kashmir" with the full knowledge of the Pakistani government - and that Afghan and other foreign mercenaries accompanied them.

The conflict ended only after Bill Clinton, the US President, and , Pakistan's Prime minister, met in Washington on July 4, 1999, and pressurized Pakistan to end the war. The Pakistan Army withdrew their remaining troops from the area, ending the conflict. India regained control of the Kargil peaks, which they now patrol and monitor all year long.

Accusations of immense human rights violations has been held on both the Indian and Pakistan occupied Kashmir. UNHCR reported that a number of Islamist militant groups, including al-Qaeda, operate from bases in Pakistan-administered Kashmir with the tacit permission of ISI.

Claims of religious discrimination and restrictions on religious freedom in Azad Kashmir have been made against Pakistan.The country is also accused of systemic suppression of free speech and demonstrations against the government. Some surveys have found that in the Kashmir region itself (where the bulk of separatist and Indian military activity is concentrated), popular perception holds that the Indian Armed Forces are more to blame for human rights violations than the separatist groups, the Indian military has even faced criticism and condemnation from organizations like Amnesty International. Several international agencies and the UN have reported human rights violations in Indian-administered Kashmir. A 1996 Human Rights Watch report accuses the Indian military and Indian-government backed paramilitaries of committing serious and widespread human rights violations in Kashmir. The official stance of the was that, according to its own investigation, 97% of the reports about human rights abuses have been found to be “fake” or “motivated”.

In the status quo, the ideology of these militant groups seems to have shifted from “nationalism” to “”. Reports by the Indian government state 219 Kashmiri pandits were killed and around 140,000 migrated due to while over 3000 remained in the valley. The violence was condemned and labelled as ethnic cleansing in a 2006 resolution passed by the Congress. According to the same resolution, since then nearly 400,000 Pandits were either murdered or forced to leave their ancestral homes. The separatists in Kashmir deny these allegations. The Indian government is also trying to reinstate the displaced Pandits in Kashmir. Tahir, the district commander of a separatist Islamic group in Kashmir, stated: "We want the Kashmiri Pandits to come back. They are our brothers. We will try to protect them."

In more recent times, massive demonstrations occurred after plans by the Indian-administered Jammu and Kashmir state government to transfer 100 acres 2 (0.40 km )​ of land to a trust which runs the Hindu Amarnath shrine in the ​ Muslim-majority . T​ his land was to be used to build a shelter to house ​ Hindu pilgrims temporarily during their annual pilgrimage to the . Such demonstrations have been aloof of the fact that the India government very regularly undertakes activities for upliftment of Muslim community (as a secular government) and very regularly donates lands and other properties to the systemized Waqf Boards.

The 2014 state elections saw the highest voter turnout despite repeated boycott calls by separatist Hurriyat leaders, which was taken note of internationally. In 2016, with the death of Wani, a famous extremist who was cornered by the Indian security forces and killed, protests and demonstrations have taken root leading to an "amplified instability" in the Kashmir valley. Curfews were imposed in all 10 districts of Kashmir as a result and over 40 civilians died and over 2000 injured in clashes with the police.

Kashmir, even to this date faces network blocking, call barring, and restrictions in newspaper circulations to prevent volatile rumors. 2016 was after what Kashmir’s condition spiralled down.

Angered by Burhan’s death, an attack by four militants on an Indian Army base on 18 September 2016, also known as the 2016 Uri attack, resulted in the death of 19 soldiers as well as the militants themselves. Although no-one claimed responsibility for the attack, the militant group Jaish-e-Mohammed was suspected of involvement by the Indian authorities. The Pakistani government "denied any role in cross-border terrorism, and called on the United Nations and the international community to investigate atrocities it alleged have been committed by the security forces in Indian-ruled Kashmir". Separatist protests, often resorting to more violent means, after the events of 2016 became increasingly common, and it has only led to turmoil in what crowns India’s head.

Political Party Stands Diplomacy governed by votes

2014 Poll Manifestos -

The ruling party - PDP:

● J&K Self-Rule Framework: It is a document prepared for outlining the ​ ruling structure which they planned for J&K. It is completely different from the current one, i.e., the one laid out in the Indian Constitution. ● Dual Currency: A clause of the self-rule framework which aimed at further ​ widening their gap of governance as laid out in the Indian Constitution.

● Federalism: It aims to give Kashmir a lot more sovereignty and establish ​ equal powers between the centre and state.

● Negligence of border dispute: Current upper house of J&K legislature, ​ consisting of representatives from Pakistan, wants to keep that, but make a new upper and lower house as part of the new structure.

● Pro-Article 370 and protection of J&K: Most of their stands are ​ pro-independence from the ‘Union of India’.

PDP’s vision for Kashmir’s future is a seperate nation-state like entity loosely controlled by the central power. though they don’t mention leaving the union, but that seems to be their goal.

The ally in ruling coalition - BJP:

● Abrogation of Article 370: The first and foremost concern of BJP, as in the ​ manifesto, is to abolish Article 370 and make J&K a ‘normal’ state of India, as all other states are.

● Kashmiri Pandits: The BJP aims to undo the atrocities committed against ​ the Kashmiri Pandits years ago, and make them return to their homes with full dignity.

● Governance for development: BJP highlights the importance of ​ development in the region and promises to work towards it.

● Policy on separatists: BJP clearly mentions it’s ‘no compromise’ policy, i.e., ​ they will not involve in talks with separatists and Pakistan unless terror funding and cross-border terrorism is completely stopped.

BJP’s and PDP’s vision and policies clearly contradict each other on every part, but the BJP’s desire to keep Congress out of power and realising the harms of a hung assembly brought it to terms with PDP.

Craving for Power - Congress:

● Equal development: Congress aims to introduce policies that will ensure ​ development of all the three regions, i.e., Jammu, Kashmir and Ladakh, equally by forming separe regional development councils.

● Increase cross-LoC trade: Congress wants to introduce confidence building ​ measures and make people realise the benefits of peace and trade in the region.

● Rehabilitation after floods: Congress clearly lays out its emphasis on ​ working for the rehabilitation measures that need to be undertaken to undo the destruction by floods.

Since independence, Congress has maintained a ‘soft’ policy on Kashmir issue and this manifesto is no exception, where Congress believes that the only route to peace is through negotiations and trade.

Legacy ensures importance - National Conference:

● Policy on Article 370: NC opposes any attempts to tamper with Article 370 ​ and ensures further attempts to gain more autonomy for J&K.

● Repeal AFSPA: NC promises to build pressure on the centre to revoke ​ Armed Forces Special Powers Act (AFSPA). This, in a way, reflects the party siding with the separatists and other forces, against the army.

● Resumption of talks with Pakistan: NC, contradicting India’s stand of sole ​ possession of Kashmir, wants India to negotiate with Kashmir on the issue to promote peace. This would only strengthen Pakistan’s claim on the region.

National Conference, in spite of being the 1st party in power after independence, has never been in agreement with centre’s stand on Kashmir and seems to be siding with Pakistan and separatists on the issue.