This post explains some of the controversies surrounding the recent revocation of the special constitutional status of the state of Jammu and Kashmir under article 370 of India’s Constitution, and the repeal of article 35A, which had allowed the state to define permanents residents of the state and certain special rights and privileges attached to such residency. It also includes a brief historical background of the dispute, the legal steps taken to revoke the special status, and legal challenges to that decision.
Prior to British India gaining independence in 1947 and the partitioning of the region into the dominions of India and Pakistan, the state of Jammu and Kashmir was one of the 565 princely states that were not under the direct control of the British colonial administration and retained a great degree of autonomy to manage their own affairs (except in the area of defense and foreign relations).
The process of partitioning British India was governed by the 1947 Indian Independence Act. Princely states were not directly incorporated in either dominion, and section 7(1)(b) of the Act provided that “suzerainty of His Majesty” over these states had lapsed and its powers had been returned back to them. They were theoretically granted the option to stay independent or accede to either dominion. However, as described in one journal article, “without British forces available for their defense, independence was not a real option for the princely states, many of which were quite small. The states were encouraged by then-Viceroy Lord Mountbatten to accede to one dominion or the other” and did so based on their geographical position, religious identity, or other factors. The ruler of Kashmir, Maharaja Hari Singh, was wavering between acceding to either dominion and choosing to remain independent and neutral at the time, as noted in another article:
Maharaj Hari Singh in Kashmir inherited a unique conundrum: he was a Hindu, but held dominion over a Muslim majority. In addition, his was the only princely state bordering both India and the newly born Pakistan, giving rise to the possibility of accession to either nation. Further complicating the already tense birth of two nations was Maharaj Hari Singh’s open discussion of an independent Kashmir, which only served to confuse and delay the question of the state’s accession.
However, after an uprising against the ruler in Poonch and an invasion by a Pathan tribal militia from Pakistan, Maharaja Singh decided to turn to India for military assistance and executed an Instrument of Accession to India. The accession was executed with the expectation that a plebiscite or referendum would be conducted to determine the final status of the state.
Eventually, regular Pakistani troops became involved and a direct conflict between the two new countries arose until a UN-brokered ceasefire was signed on January 1, 1949. Later that same year a ceasefire line was agreed upon. The northern and western part of the former princely state was administered by Pakistan as Azad Kashmir and the Northern Areas (now known as Gilgit-Baltistan), and the state of Jammu and Kashmir acceded to India. In 1965, Pakistan and India went through a second war over the status of Jammu and Kashmir, but by the end of the conflict the status quo 1949 ceasefire line was maintained. Terms for a plebiscite could not be agreed to by either side and, by 1954, India dropped the option for a plebiscite.
Some territorial gains in the Kashmir region were made by India in 1971 during the war between the two countries over the secession of East Pakistan (present day Bangladesh), which ended with the signing of the Simla Agreement on July 2, 1972. The Agreement stipulated that the countries are to “settle their differences by peaceful means through bilateral negotiations” and prohibited either country from “unilaterally alter[ing] the situation.” Moreover, the 1949 ceasefire line became the line of control – a de facto border between the areas controlled by the respective countries.
Over the years, the region has been embroiled in many border skirmishes, a high altitude war in 1999 (known as the Kargil conflict) between the countries, and a Pakistan-supported insurgency in Jammu and Kashmir that has existed since 1988. Currently, the Indian government asserts that Jammu and Kashmir is an “integral part of India and is a matter strictly internal to India” and any dispute with Pakistan should be resolved bilaterally. Pakistan, on the other hand, takes the position that India’s recent actions are a “violation of the U.N. Security Council resolutions on Kashmir and bilateral Pakistan-India agreements, such as the 1972 Shimla Agreement and the Lahore Declaration” and wishes to internationalize the dispute in a global forum.
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