Kashmir, Gurdaspur & Mountbatten?

Moeed Pirzada -August 5, 2020

Mountbatten Kashmir Mission
Alan Campbell Johnson, in his famous book, “Mission with Mountbatten” writes – while trying to explain
why Kashmir, amongst the princely states, represented a special problem that “there was a Hindu ruler
with a state geographically contiguous to both dominions and the majority of his subjects (were)
Moslem.”
Campbell Johnson may have never created this logic of “geographically contiguous” he was merely
repeating what everyone generally believed – and perhaps still believes. And it was true; on a map,
Jammu & Kashmir appeared perched between India and Pakistan.
Yet in reality, for all practical purposes Maharaja Hari Singh’s princely state – surrounded by the
ferocious Himalayas from three directions – till 16th August 1947, had no real physical links or lines of
communication with the territories that were about to constitute India. In literally every respect Jammu
and Kashmir was wholly and solely dependent for all its logistic needs on the territories that were about
to form Pakistan.

Geography: Map versus reality?

State of Jammu and Kashmir came into existence in the middle of 19th century – it was a patchwork that
was stitched by Gulab Singh mostly after the 2nd Anglo-Sikh war and the Sikh defeat of 1846 when cash
strapped East India Company sold him Kashmir for the infamous Rs. 75 lacs.
Kashmir valley, from past several hundred years, had only two main reliable physical links with the
outside world: One through the Jhelum Valley Road (also called Pindi-Srinagar or Muzaffarabad-Srinagar
Road); second through the Old Mughal Road that entered Jammu via Sialkot corridor (Bhimber, Jammu,
Rajouri route and entering Kashmir at Shopian).
Old Mughal Road was the route, Mughal emperor Jehangir took many times to reach Kashmir – though
he also used the Jhelum valley route on at least one occasion. In addition, Kashmir had several small hilly
tracts from where traders and preachers from Central Asia and Iran penetrated the valley from pre-
historic times but all from routes in North (present-day KP, Gilgit and Ladakh etc.). And thus the human
life in the Kashmir valley was inextricably linked with the people and cultures that now constitute
Pakistani Punjab.
This confusion about “geographic contiguity” got combined with another piece of misinformation. And
that is the continuing false belief that Maharaja Hari Singh of J&K in August 1947 also had the option to
stay independent
Almost 73 years after 1947, the Indian government in 2020 is still struggling with a Leh-Manali all-
weather road that will connect Ladakh with Himachal Pradesh.
But this is now 2020, let’s go back to the middle of 20th century when two dominions of India and
Pakistan were being created out of British India and its 565 princely states – out of which one was
Maharaja Hari Singh’s Jammu and Kashmir.
Kashmir valley had one reliable (not all-weather but reliable) cart road, over Bannihal Pass (made all-
weather through the famous Bannihal tunnel, in 1956) that connected it with Jammu.
But then Jammu itself could only be accessed via Sialkot (a city in Pakistan). All human traveling and
trade between Jammu and Punjab, over the past several centuries, took place via Sialkot.
The bottom line is that State of Jammu and Kashmir (as it existed in 1947) may have looked – on a
school atlas or wall hanging map – perched between the two potential dominion states of India and
Pakistan but in reality, J&K had no physical relation with the areas that now constitute Indian Union.
It was the way geography and history had shaped the region. Maharaja Hari Singh’s state, for all
practical purposes of statecraft, was not “geographically contiguous” with both dominions.
Yet these words, “geographic contiguity” and the wider sense they conveyed – repeated hundreds and
thousands of times by historians, authors, academics, young doctoral candidates in their dissertations
and by journalists in their articles had given rise to a “mental barrier” that has limited most people’s
ability to understand what went wrong in the former princely state of Jammu & Kashmir.
But that was not alone; this confusion about “geographic contiguity” got combined with another piece
of misinformation. And that is the continuing false belief that Maharaja Hari Singh of J&K in August 1947
also had the option to stay independent.

How Bengal & states like Kashmir lost the option of Independence?
In reality, after the Shimla meeting (May 1947) between Mountbatten and Nehru, the third option for
any state to “stay independent” was simply not available. The actual “partition plan” prepared by
Viceroy’s team to be announced on May 17th had a complex option that could have theoretically
provided a mechanism for states like Hyderabad and Kashmir or British province like Bengal to emerge
as independent dominions.
However Mountbatten – against the advice of his team – shared that “partition plan” with Nehru and
Krishna Menon in the quiet privacy of Shimla hills in first week of May 1947. Nehru violently reacted
making it clear that Congress will reject and protest. Mountbatten had to surrender; he brought changes
demanded by Nehru and created a new plan typed by VP Menon the same day. It was then again sent to
London for approval and thus instead of May 17, it was then announced on June 3 – and is known as the
“June 3rd Plan” In this new partition plan, every princely state had to opt for either Hindustan or
Pakistan – keeping in view their population and geography. (Freedom at Midnight, Collins & Lapierre)
In university classrooms from Columbia to Oxford and media chat rooms the discussants often believe
that Hari Singh, the erstwhile Maharaja of Kashmir, under the principles of “partition plan of 3rd June”
could join either India or Pakistan or could have stayed independent.
Building their narratives on this misunderstanding, most people still think and argue that Maharaja had
decided to join neither, was exercising the third option; he wanted to stay independent till the violent
tribal lashkars from the then province of NWFP reached Srinagar, and the poor Dogra ruler was forced to
sign the Instrument of Accession of 26th October. Scores of publications, like Karan Singh’s “Heir
Apparent” have further reinforced this misunderstanding.
This is more or less the same in “Mission with Mountbatten” with the difference that Johnson places the
Kashmir visit in the third week of June while Mountbatten was returning from Shimla
Nothing could have been far from the truth. If anything, this patently false – yet immensely popular
narrative – has limited the ability of three generations of scholars, academics, political interlocutors and
media persons to understand the tragedy of Kashmiri people and how unjustly they were dealt in 1947.
This “misleading popular narrative” of a Dogra Maharaja (opting to stay independent) denies most
people to understand the roots of fury that have made Kashmir an enduring flashpoint between 1.5
billion people of India and Pakistan.
They don’t understand why Kashmir erupted into a violent cataclysmic insurgency in 1989 that
continues in myriad ways despite 40 years of unrelenting Indian repression and how it is converting
India from an “occupying state” into a ruthless, tyrannical “colonial power” – worse than the British
Imperialism Gandhi fought 100 years ago.

Mountbatten told Maharaja to join either Pakistan or India?

Immediately after the partition of 1947, several key figures wrote their first-hand accounts; these
included “Mission with Mountbatten” by his press attaché, Alan Campbell Johnson, “Story of the
Integration of Indian States” by VP Menon (who worked for Mountbatten and later Sardar Patel) and
many others who were part of the drama of the last few months including, “Memoirs of Gen. Lord
Ismay” (Ismay served as Mountbatten’s Chief of Staff). There are many other good works; mentioning
them all is beyond the scope of this piece of writing.
After these initial authors came several dozen secondary publications by academic and journalistic
researchers. Some of these are very influential like the famous “Freedom of Midnight” by Larry Collins
and Dominique Lapierre who were inspired by Mountbatten and whose account reads more like
interesting fiction.
And there have been meticulously researched accounts like, Stanley Wolpert’s biography, “Nehru: A
Tryst with Destiny” that does not deal exclusively with the partition but provides lots of well-researched
information.
Given the kind of hopeless nerd, this scribe has been all his life, I have read most of these and even
other books that dealt indirectly with those events like Janet Morgan’s biography of Edwina
Mountbatten, “Edwina Mountbatten: A Life of her own”.
And one thing that strikes – a Kashmiri like me – is that Mountbatten, Edwina and the team around
them were comfortable believing that Hari Singh, Maharaja of Kashmir, with 80% Muslim population
and all links of communications with Pakistan, had the right to choose any of the two dominions: India
or Pakistan. And they never found anything intrinsically repugnant, morally unethical or simply wrong in
the idea.
For instance, in “Freedom at Midnight” (Chapter: 10, “We will always remain brothers”) Collins and
Lapierre describe Mountbatten’s main meeting with Hari Singh when Viceroy visits him in Kashmir in July
(in reality it was June 1947, perhaps 19th June, and authors have made a mistake) and the Maharaja
takes him out for fishing.
State of Jammu & Kashmir was almost 80% Muslim, and all its communication links were with areas into
Pakistani Punjab then what could have been the basis of Mountbatten’s advice?
So, Mountbatten advises Hari Singh that before 15th August he must join either of the two dominions,
i.e. India or Pakistan. This is more or less the same in “Mission with Mountbatten” with the difference
that Campbell Johnson places the Kashmir visit in the third week of June while Mountbatten was
returning from Shimla. Johnson’s account is a faithful production of his daily diary, and events are
interconnected logically.
While words used by Johnson are different, it’s clear that Mountbatten is advising Maharaja to join
either of the two new states (India or Pakistan). Others including Edwina’s biographer, Janet Morgan
presents the same picture. Finally, Hari Singh agrees to have a formal meeting with Mountbatten on the
third day (the day of Viceroy and Edwina’s departure).
It was Mountbatten’s plan – we learn from more than one narrator– that in a formal meeting including
George Abell (Civil Servant & Viceroy’s secretary) and Col. Webb (British Resident in Kashmir) he would
repeat his statements to Hari Singh for the record, however, next morning Hari Singh’s ADC informs that
Maharaja has developed colic which Mountbatten refers to as “diplomatic colic”, and the formal
meeting for the record never takes place.
Accounts in different books are so similar, virtually identical, that it is obvious that the source of all these
myriad narrations is only one: Lord Mountbatten. Seventy-three years later, we have no option but to
rely upon Mountbatten’s account of his discussion with Maharaja Hari Singh. However, the troubling
thought remains that there has never been a second independent source to verify what actually
transpired between the last British Viceroy and last Dogra ruler of Kashmir.
So, we are supposed to believe that the all-powerful last Viceroy of British India, former Supreme
Commander of the Allied Forces in South East Asia and cousin of King Edward VI tried convincing
Maharaja Hari Singh for almost three days that he should join either of the two dominions, but Singh
gives him a shut-up call?
Can we trust what Mountbatten tells us of this private conversation? Could it be possible that
Mountbatten, in June 1947, actually encouraged Hari Singh to keep delaying the decision? Could it be
possible that Mountbatten was telling Hari Singh to stay put with his ambivalence while options are
being created for him?
None of the British or Indian authors wonders: how was Mountbatten persuading Hari Singh to join
either of the two dominions? (India or Pakistan). Was not a princely ruler bound to decide as per the
wishes of his subjects, geographical realities or communication links?
From Alan Campbell Johnson’s diary-based account, “Mission with Mountbatten” we know that the last
Viceroy of British India had his plate full of insurmountable challenges – from Khyber to Kanya Kumari –
that kept him busy 24/7
State of Jammu & Kashmir was almost 80% Muslim, and all its communication links were with areas into
Pakistani Punjab then what could have been the basis of Mountbatten’s advice?
It was one of the 565 princely states, and almost 560 of these ended up joining India before 15th
August; many of the rulers (like Nizam of Hyderabad & others) and Maharajas had either wanted to stay
independent or defy the limitations of “population” and “geography” – to extract a better deal from
Jinnah like Maharaja of Jodhpur and Jaisalmer- but Mountbatten and his team admonished them
strictly. Why not the same clarity with Hari Singh in Kashmir?

Could Hari Singh had joined India without Gurdaspur?

Chaudhry Muhammad Ali, the author of “Emergence of Pakistan” who briefly served as PM of Pakistan
(1955), had also worked as one of the two secretaries of the Partition Plan assisting Mountbatten in
1947. His book makes it obvious that he was someone who directly dealt with issues on the ground.
He picks up V.P Menon’s narration, of Mountbatten’s Kashmir meeting in which Menon describes:
“[Mountbatten] assured the Maharaja that so long as he made up his mind to accede to one dominion
or the other before 15th August no trouble will ensue, for whichever Dominion he acceded to would
take the state firmly under its protection as part of its territory” (Story of the Integration of Indian
States” by VP Menon).
Muhammad Ali then raises this provocative question; “But India and Pakistan were not equally well
placed to undertake Kashmir’s defence. Indeed, there was a world of difference between the two
Dominions in this respect. All of Kashmir’s lines of communications led into West Pakistan, whereas
there was no link with India.
Unless Gurdaspur district was divided in such a way as to provide India access to Kashmir, India could
not have taken the state under its protection or assumed responsibility for its defence. (Chapter: 10,
Radcliffe Award, Emergence of Pakistan, 1967).
Gurdaspur District, in 1947, had four tehsils: Gurdaspur, Batala, Shakargarh and Pathankot. District, on
the whole, was Muslim majority and only one tehsil, Pathankot, had a non-Muslim majority. District
bordering Jammu, at the foothills of Himalayas, was the only land link connecting Jammu with Indian
Punjab.
However, even if Radcliffe had awarded Pathankot to India, it would still not get access since Muslim
majority Tehsils of Batala and Gurdaspur to the south would have blocked the way.
Gurdaspur (when Radcliffe Award was announced on 16th August) was the only Muslim majority district
where Radcliffe’s pencil lines defied the majority principle; no Hindu or Sikh majority district in Punjab
was given to Pakistan on any consideration.
The special triangular relationship that developed between the Edwina, Mountbatten and Nehru – that
automatically developed into antipathy towards Jinnah

Mountbatten Nehru Simla Meeting: Was there a Deal?

Boundary Commission had to start its work in end June 1947. However, at a press conference on 4th
June, (two weeks before his meeting with Hari Singh in Kashmir and 4 weeks after the Simla Meeting
with Nehru & Krishna Menon) Mountbatten was asked why he had in his broadcast of the previous
evening on 3rd June partition plan categorically stated that “the ultimate boundaries will be settled by a
Boundary Commission and will almost certainly not be identical with those which have been
provisionally adopted”.
Viceroy had immediately replied that because in the district of Gurdaspur, Muslims are only 50.4%. With
this slim majority, it’s unlikely that Boundary Commission will throw the whole district into Muslim
majority areas.
In reality, Mountbatten was slightly mistaken; the Muslim majority was 51.4%, and non-Muslims were
concentrated mostly one Tahsil (Pathankot). However, Muhammad Ali in his book wondered that
Mountbatten’s mistake was immaterial, what was actually significant was that Mountbatten had made a
close study of the statistic of this particular district and had made it public that this should be divided.
From Alan Campbell Johnson’s diary-based account, “Mission with Mountbatten” we know that the last
Viceroy of British India had his plate full of insurmountable challenges – from Khyber to Kanya Kumari –
that kept him busy 24/7. It was indeed surprising that his mind was focused on one particular district in
Punjab – perhaps it was ominous of the things to come!
Perhaps in the Simla meeting when Mountbatten had to revise the original partition plan under dire
warnings from Nehru there developed a tacit understanding that for Congress to join British
Commonwealth and maintain good relations with London there is no compromise on Calcutta,
Hyderabad and Kashmir (for details read: Freedom at Midnight, Chap:6, Precious Little Place, Simla May
1947, P: 155-160, 1996 Ed). One may also keep in mind that within next few weeks, Nehru and Gandhi
both formally asked Mountbatten to continue as independent India’s first Governor General – providing
a legacy conscious Englishman with something unimaginable.
Let’s fast forward: On 25th October 1947, when after the tribal incursion via Muzzafarabad-Srinagar
Road, Mountbatten ordered British Indian Army to move into the state of Jammu & Kashmir the first
Sikh Regiment definitely landed at Srinagar airport – but what about the large army that follows?
Mountbatten, the former Supreme Commander of Allied Forces in South East Asia, had taken command
of all civilian flying aircraft in India and a huge airlift to save Kashmir from Pakistani backed tribals was in
motion.
Yet, over the next few months, almost 100,000 Indian Army soldiers battled the Pathan tribals and
allegedly the regulars of Pakistan Army who by defying their British commanders, under tacit nod from
the new Pakistani government had joined in from November onwards to help tribals with military
planning. The continuous Indian reinforcements with their logistic and motorised support could now
enter through the “only land link joining India to Kashmir, the inadequate road Cyril Radcliffe’s pencil
had providentially delivered to India when he had assigned New Delhi the town of Gurdaspur with its
largely Muslim population” (“Kashmir – only Kashmir”, Chap:15, Freedom at Midnight, Collins &
Lapierre, P: 448, 1996 Ed)
This huge Indian force, starting from end October 1947, along with its motorised equipment and logistic
supplies, did not arrive via Srinagar airport. It simply could not. It arrived via the dirt road that passed
through Gurdaspur District – the only and the only road link that connected Indian Punjab with Jammu
-and later provided the route for NH-44. Former Supreme Commander of the Allied Forces in South East
Asia had delivered to Nehru what he may promised him in the Simla Meeting in the first week of May
1947.

Why Mountbatten handed Kashmir to Nehru?

From the accounts of all those who worked with Mountbatten and the later day authors – like Collins
and Lapierre – who were literally giving Viceroy’s version we know that Mountbatten was extremely
conscious of the fact that Nehru – and even Gandhi – were desperate to possess Kashmir; we find
mention at several points that both Nehru and Gandhi did not want Maharaja to declare his
“Independence”; Campbell Johnson mentions Nehru’s desire to possess Kashmir as part the complexity
of Kashmir along with the fact that it was “geographically contiguous” with both dominions.
Everyone who is reading this now knows that it was total baloney -fabricated nonsense which was easily
bought because on the map the state of Jammu & Kashmir looks like perched in between India and
Pakistan. And for all practical purposes of statecraft, state of Jammu and Kashmir had no geographical
contiguity with India.
But was Nehru’s desire so important, so decisive for Britain’s last viceroy that it overruled all other
fundamental considerations of “80% Muslim majority” and “contiguous territory”, that he went on
influencing Radcliff Award? And in the wake of that treachery left behind a legacy of hatred, contempt
and ever-growing hostility between 1.5 billion people of India and Pakistan?
It’s not difficult to see that tragedy in Kashmir has not only created dangerous wars in South Asia, but it
has affected the overall direction of politics and society in India and Pakistan – injecting such toxicity
that keeps finding ever new ways to multiply.
Kashmir is a disaster created by the follies of two men: Nehru and Mountbatten. Nehru, in the final
analysis, may be forgiven for lacking a broader vision of future and for being a selfish statesman but
what about the British Viceroy, Why Lord Mountbatten, Earl of Burma so visibly shirked his historical
responsibility?
The answer probably lies in two areas: One, Mountbatten’s compulsion to please Nehru and Congress to
persuade masters of new independent India to join as members of the British Commonwealth, which
was London’s strategic requirement, but Congress was playing hardball; Second, the special triangular
relationship that developed between the Edwina, Mountbatten and Nehru – that automatically
developed into antipathy towards Jinnah. Denying Kashmir was also Mountbatten’s way of taking
revenge from the old barrister he and Edwina had come to hate.
Article 35A: Who created it, why and how they have turned against it?
Justice (R) Syed Manzoor Hussain Gillani -August 4, 2020

Article 35A of the constitution of India (abrogated on August 5, 2019, by Hindutva Govt) was the
culmination of the long-standing rights movement of the people of Jammu & Kashmir that began when
cash strapped East Indian Company sold Kashmir to Maharaja Gulab Singh on March 16, 1846, for
merely Rs.7.5 million.
Dogra dynasty was ruthlessly despotic but was forced to acknowledge and reserve some rights specific
to natives of the state. It was not a charity, but a surrender before the people’s will on account of severe
resistance against the cruel rule.
Most important of these “rights” were the rights of the natives over the land which they lived, ploughed,
got buried into and the local jobs and state scholarships. The state law was promulgated in 1927 and
was updated in 1932. It became part of the Indian Constitution as a result of prolonged and protracted
negotiations between the Indian and Kashmiri leadership represented by Pundit Nehru and Sheikh
Abdullah respectively in the period 1947-1950.
The chronology of events leading to the incorporation of Article 35A into Indian constitution is deeply
entrenched in the politico-legal history of the state of Jammu & Kashmir, given its special geographical,
political, demographic position, its internationally disputed status and its unusual and unique
relationship with the Indian Union that evolved since 1947.
In 1947, unlike territories of British India (11 provinces directly governed by Viceroy), the princely states
had legally defined relationship with the British crown. The state of Jammu & Kashmir was one such
state defined as a Muslim majority state, “ transferred forever in independent possession of Gulab Singh
and the heirs male of his body….”, the Hindu Raja of Jammu, by the British Government under the treaty
of Amritsar, dated March 16, 1846.
He thus became the sole owner, proprietor and ruler of the state comprising 77%, Muslims, mostly
illiterate and subdued by centuries of slavery under different oppressive rulers.

State Subject Law: A Need of Kashmiri Pundits

Maharaja Gulab Singh had earlier remained the most trusted lieutenant of Lahore Sikh Durbar as well
(before Sikh defeat by British) and later allowed Punjabis in particular and other superior competing
interests to get jobs, and establish a business enterprise in the state of Jammu & Kashmir over the head
of natives.
This situation was especially troubling for the valley’s Kashmiri pundits who were a small minority (only
2-3% of the population) but by virtue of being the educational elite had a disproportionate share of jobs
and privileged positions.
It is not without a reason that as a political deal it lived through “Instrument of Accession”, “Delhi
Agreement 1952”, “Art. 2 of Indian constitution” and above all, Art. 370 on which the whole edifice of
Indian claim of accession is based
Pundits also influenced the Dogra rulers on account of religious proximity. Feeling insecure about losing
lucrative and influential jobs, perks and privileges – due to influx of educated professionals from outside
especially from Punjab in the first part of 20th century- they brought pressure on the Dogra ruler,
Maharaja Hari Singh, to protect the jobs, grant of lands and scholarships in the state for natives only.
Muslim masses were used as street power to bring the ruler to force the hand of Dogra rulers. Kashmiris
Pundits succeeded in getting the word “Hereditary state subject” coined and notified on January 31
1927, defining it, “to mean and include all persons born and residing within the state before the
commencement of Maharaja Gulab Singh’s reign in 1846.” A foundation was laid for the law, to be
called “State Subject Law.
Law’s scope was broadened and defined further by creating categories through an amendment in the
notification on April 20 1927. It was classified into three categories: class 1, 2 and 3. Class (i) was the one
defined above, i.e. subjects born and residing within the state from the beginning of Ghulam Singh reign.
Class (ii), permanent residents who possessed immovable property in the state at the time of
commencement of Maharaja Pratab Singh’s rule in 1885. And Class (iii), permanent residents of the
state on account of having received grants by way of immovable property from Maharaja under a
“Rayatnama.
The descendent of each class inherited the status of its predecessor and preference over or subordinate
level below the other class accordingly. Foreign companies beneficial for economic development
incorporated in the state under permission were also given the status of state subjects.
Through an amendment in 1932, emigrants from the state residing in the foreign countries retained the
position of state subject for two generations but could not claim the internal rights in the state. The
Hindu elites of the state – Pundits in case of Kashmir – who were well educated, rooted deep in the
statecraft and trusted in the Durbars of dictatorial regimes in the state for centuries, further
monopolized the state jobs and grants under the protection of state subject law.
On the eve of the partition of India, Dogra ruler Hari Singh – in what can only be described as a tragedy
for 77% Muslims of the state – acceded to India on October 26 1947. However, even in those unusual
circumstances of accession, he consciously delegated only defence, foreign affairs and communication
to Indian dominion retaining for himself entire internal sovereignty under clause 8 of the instrument of
accession, that included state subject law.

Azad Kashmir retained the “State Subject Law”

The parts of the princely state of J&K liberated by the people of state constituting Azad Jammu and
Kashmir government were not part of the accession instrument as they had ceased to be parts of
Maharaja’s state on October 24, 1947, when a free government of the people of the state was
established in Muzaffarabad.
However, the state subject law is protected in Azad Jammu & Kashmir interim constitution 1974 and has
always remained a part of the Azad Kashmir statutes. It is strictly watched and followed. So much so that
the nomenclature of the head of the state and chief executive, in the AJK, are equally protected as,
“Sadar-i-Riasat and prime minister.” In Gilgit-Baltistan, however, it is not followed; though not
specifically abrogated as well.
Similarly, the State Govt, under the control of India, adopted the constitution Act 1939 of the former
ruler with modifications compatible with the new environment, which included state subject law also.

Indian Constitution adopts “State Subject Law” as 35-A

The Constituent Assembly of India – that included representatives of Kashmir under the Instrument of
Accession – was seized with drafting a new constitution to replace Government of India Act 1935. The
new constitution of India, mostly a modified version of the Government of India Act 1935, came into
force on January 26 1950. The relations between the state of Jammu & Kashmir and Indian Union were
regulated through Art. 370 on “existing basis,” i.e. “Instrument of accession”.
The negotiations continued between the Kashmiri and Indian leadership for future relations between
Indian Union and state, which culminated into an agreement called “Delhi Agreement” of 1952. It
contained a host of agreed clauses, which included the state subject law in particular.
Clause 2, Delhi Agreement 1952, stipulated that in accordance with Art. 5 of the Indian constitution, the
state subjects shall be regarded as citizens of India, but the state legislature was given the power to
make laws for conferring special rights and privileges on state subjects given state subject laws and also
empowered to make laws for state subjects who had gone to Pakistan on account of communal
disturbances of 1947, in the event of their return to the state.

In pursuance of this agreement, “The constitution (Application To Jammu & Kashmir) Order 1954 was
promulgated in supersession of an order of 1950.
Besides applying the bulk of provisions of Indian constitution, most of which were against the provisions
of the instrument of accession, a special provision as Art. 35A was introduced in the constitution of India
with “ overriding effect on all other provisions of the constitution including fundamental rights of other
citizens under the constitution, protecting existing (state subject laws) and laws to be made in future by
state Assembly defying the classes of state subjects, conferring on them rights and privileges and
imposing restrictions on others as respects to employment, acquisition of land, settlement, scholarship
and aid in the state”.
The word “state subject “was substituted by “permanent resident “and a “permanent resident” was
deemed as a citizen of India simultaneously after Constitution Application to state order 1954
It is thus not difficult to see that Art. 35-A and the rights preserved through it were an essential part of
the politico-legal history of Kashmir. As a political balancing act, it sustained itself from its inception in
force 1927 till August 2019.
It is not without a reason that as a political deal it lived through “Instrument of Accession”, “Delhi
Agreement 1952”, “Art. 2 of Indian constitution” and above all, Art. 370 on which the whole edifice of
Indian claim of accession is based. It’s important to mention that despite 35-A and Art. 370 in place,
erosion of J&K autonomy had continued.

State Subject: Symbolized the identity of Jammu & Kashmir

The issue of “state subject” is not of rights alone; it is very close to identity of a state and nationhood,
which existed right from the time when the Kashmir was discovered from beneath the deep waters of
“Satisar”.
A full-fledged chapter followed provisions of Art-35A as part (iii) comprising sections 6 to 10 of 1957
constitution of the state of J&K that was finally enforced on the recommendations of constituent
Assembly in 1957, after Delhi Agreement and after due deliberation with Delhi leadership.
Jammu & Kashmir Constituent Assembly was created in 1951 to frame its constitution, and it dissolved
itself in January 1957; later, no fundamental change in the structure of the relationship between J&K
state and Delhi was possible in the absence of Constituent Assembly.
The word “state subject “was substituted by “permanent resident “and a “permanent resident” was
deemed as a citizen of India simultaneously after Constitution Application to state order 1954. Besides
class (i) & class (ii) state subjects, every person residing in the state for not less than ten years and
having acquired immovable property before May 14 1954, was also deemed a resident of the state. A
state subject who had migrated to Pakistan during 1947, was also considered as a resident of state on
his lawful return to the state.
Though initial inhabitants of the pre-historic state were all Hindus, they converted to Buddhism at some
point which gave way to Islam from 10th century onwards. From 13th century onwards Kashmir has
been predominantly a Muslim state, and from 1947 onwards it symbolized a Muslim identity in Hindu
India.
Kashmir valley since the 13th century has been a Muslim majority area, but the overall state of J&K has
been Muslim majority too. Despite biased figures throughout the Dogra rule, available census reports of
India reveal overwhelming Muslim majorities in the whole of J&K: 74.16% (1901); 75.94% (1911);
75.97% (1941) 1961 (68.31%); 64% (1981) and 68.3% (2011). It is amusing that Indian Hindu leadership
blames Muslims of marrying more wives and increasing population, but when it comes to counting, the
figures are shown in descending order. How can it be?

How Pundits lost interest in State Subject law?

Pandit population in Valley of Kashmir, according to Indian census reports from 1846 (Ghulab Singh era)
to 1947 is shown as 4% to 5%. However, on the ground, it never went beyond 2 to 3%. This anomaly is
explained by the fact that they have always been maintaining second homes in the rest of India. Unlike
Kashmiri Muslims, they felt safe and comfortable with their Hindu coreligionists, got attractive jobs and
later drew attention by spinning false tales of horror and harassment.
In reality, something else was happening. After termination of 101 years of autocratic Dogra Hindu rule,
in 1947, the majority Muslim community, under Sheikh Abdullah’s National Conference got its due share
and came to rule through the principle of adult franchise.
All promises and aspirations of “Socialist, Secular, Democratic Constitution” of India given to minorities
have been unilaterally scrapped. Kashmir – perhaps the whole of India – now stands in a legal vacuum
The educated pundits (only 2-3% of the actual population) started to lose their disproportionate hold in
Kashmir, which was mostly a function of their privileged position and political control. Majority
community (97-98% of Muslims) competed and started getting an increasing share in jobs which only
reflected their population proportions. But its important to understand how it happened.
Sheikh Muhammad Abdullah, after coming into power as prime minister of the state, initiated reforms.
The most significant blow was the abolition of big landed estates in 1950. The land was given to tillers
free of cost. Being a privileged class throughout known history, pundits share in amassing the “jageers”
(landed estates) was greater than Muslim jageerdars, (landlords) so they had to surrender more.
Hindus – especially the landed elite – started leaving the state in disappointment – particularly pundits
from Kashmir. A major migration of pundits took place in the 1950s when reforms began to kick in
according to the Naya Kashmir manifesto.
The early 1990s saw the movement for AZADI by Kashmiri Muslims. Pundits felt insecure and BJP
nominee governor Jagmohan, facilitated their migration Kashmir valley to safer places in Jammu and the
rest of India. This was the second-largest migration of pundits. Now there are hardly one and a half
percent pundits left in the valley of Kashmir.
Faced with history’s strange irony, many Pundits from 1990s onwards joined those who were against
Kashmir’s special status as enshrined in Art. 370. Having tremendous influence in power corridors of
India, the pundits started a campaign to scrap the special status of State under Art. 370 to merge the
state in the Indian mainland and to abolish State Subject Law enshrined under Art. 35A of Indian
Constitution, which they had initially crafted for themselves in 1927 – and gradually benefited majority
Muslim community after the end of Dogra rule in 1950. Their efforts bore fruits on August 5 2019.

Modi regime brazen action of August 5: Implications?

Modi’s RSS led BJP government in Delhi had unilaterally and unconstitutionally withdrawn all politico –
constitutional arrangements between the state of J&K and the Indian Union developed since October
26, 1947 -including the State Subject rights guaranteed since 1927.
Ironically this illegality was done through a presidential order issued under Article 370(1) – that had
hitherto guaranteed ceremonial sovereignty and identity of the state. Though “Kashmir’s autonomy and
sovereignty” eroded over a 70-year process was hollow, but it had provided a psychological solace of a
separate identity to the wounded sentiments of Kashmiri nation ravaged by repeated betrayals, broken
promises and false guarantees.

Article 35A
State of Jammu & Kashmir is the only state, aligned with Indian Union, whose future is to be regulated
by an UN-sponsored Plebiscite. This is not the situation of any other state in India and Pakistan, and
Jammu & Kashmir alone had a separate constitution. In its special character, it is unlike other Indian
states and territories pending its future dispensation.
Yet nine other Indian states are given a status almost equal or similar to the state of Jammu & Kashmir
under the constitution of India regulated by Art. 371 (from 371A to H). All of these special arrangements
are acceptable because of their demography and religious identity suit Hindutva mentality as against
Kashmir’s Muslim identity.
Since the brazenly unconstitutional act of August 5 2019, around 106 local laws symbolizing local
autonomy have been abrogated, and about eighty union laws subjugating the state of Jammu & Kashmir
have been are enforced.
Hindutva actions have shaken the core of constitutionalist state once founded by the likes of Dr.
Ambedkar. Every guarantee given to the Kashmiri nation by top Indian leaders from the likes of
Mahatma Gandhi, Pundit Nehru and Maulana Azad to the lesser mortals that followed them now stands
violated. All promises and aspirations of “Socialist, Secular, Democratic Constitution” of India given to
minorities have been unilaterally scrapped. Kashmir – perhaps the whole of India – now stands in a legal
vacuum.
Hindutva fanatics in power in India ignore that what they have undone in a state of madness, was
achieved by the noble sacrifices of several generations of Kashmiris from 1846 onwards. It was not
mythical Mahabharata tale but a real story of sweat and blood like Indian and African freedom
movement.
It won’t vanish, it won’t perish. It would regrow with much more vigour and strength. Achievements
gained by blood are perennial, not transitory like the fits in which mischief of undoing Art. 35A is
committed. Kashmiris will fight back as usual with much more vigour than Indian might and achieve
much more than lost.
Kashmir and the Simla Agreement Dr Qaisar Rashid Oct 18, 2016
The Simla Agreement was signed between Pakistan and India on July 2, 1972 and, in October 2016, the
agreement is over 44 years old. For the sake of discussion, the agreement can be divided into two parts.
One part is related to the nature of relations between Pakistan and India whereas the other part is
related to the status of the Princely State of Jammu and Kashmir. This opinion piece comments on the
latter.
The objective of the Simla Agreement, as mentioned in its preamble, is this: “The Government of India
and the Government of Pakistan are resolved that the two countries put an end to the conflict and
confrontation that have hitherto marred their relations and work for the promotion of a friendly and
harmonious relationship and the establishment of durable peace in the subcontinent so that both
countries may henceforth devote their resources and energies to the pressing task of advancing the
welfare of their people.” This statement is simply an expression of the resolve of both the signatory
countries to end hostilities and establish peace between them to serve their people.
The objective part of the agreement is shorn of the word Kashmir, and the absence is rationalised
because the events that led to the agreement surfaced from the disagreement on various issues
between the east and west wings of Pakistan. Moreover, in 1971, India blatantly sided with East
Pakistan to get it disassociated from West Pakistan to become Bangladesh. Interestingly, the issue of
Kashmir that was also lingering at that time between Pakistan and India had nothing to do with any such
disassociation.
In the agreement, although the words “the right of self-determination” are missing, these are implied in
Sub-section I of Section One of the agreement that says: “That the principles and purposes of the
Charter of the UN shall govern the relations between the two countries.” When the UN Charter is
consulted, it is found that its articles one and two outline the purposes and principles. Article One of the
UN Charter is about “Equal rights and self-determination of peoples,” and Article Two of the UN Charter
is about “Prohibition of threat or use of force in international relations.” In this way, this subsection has
a strong bearing on the Kashmir issue, especially where the points of the right of self-determination of
Kashmiris and the territorial integrity of Kashmir are concerned.
At this juncture, two points may be considered important. Firstly, when the objective part of the
agreement says that both the signatory governments are resolved to “put an end to the conflict and
confrontation that have hitherto marred their relations,” it does not mean the negation of the right of
self-determination of Kashmiris. Secondly, when the objective part of agreement says that both the
signatory countries shall “work for the promotion of a friendly and harmonious relationship to establish
peace in the subcontinent,” it does not mean they do so at the cost of the right of self-determination of
Kashmiris. In short, notwithstanding the actions taken by both the signatory countries, the right of self-
determination of Kashmiris is intact, inviolable and irrefutable.
In the body of the agreement, the word Kashmir is mentioned in two different sections. Section Five of
the agreement says: “In Jammu and Kashmir, the line of control resulting from the cease-fire of
December 17, 1971 shall be respected by both sides without prejudice to the recognised position of
either side.” This statement shows that through the agreement in 1972 India ditched its own claim that
Kashmir was its integral part. Section Seven says: “Both Governments agree that their respective Heads
will meet again at a mutually convenient time in the future and that, in the meantime, the
representatives of the two sides will meet to discuss further modalities and arrangements for the
establishment of durable peace and normalisation of relations, including the questions of repatriation of
prisoners of war and civilian internees, a final settlement of Jammu and Kashmir and the resumption of
diplomatic relations.” This statement indicates that notwithstanding the stance of India domestically for
the consumption of its people, India admitted in 1972 at the bilateral level that the final settlement of
the Kashmir issue was still pending.
Whereas the downside of the Simla Agreement is that no timeframe has been mentioned to achieve the
final settlement of the Kashmir issue, the upside of the agreement is that it does not prohibit any
signatory party from referring the Kashmir issue back to the UN. Despite the lapse of 44 years, the
Kashmir part of the Simla Agreement has delivered nothing to Kashmiris, who were not even a signatory
to the agreement. Nor was the 1971 war fought in the name of the Kashmir cause. Without the consent
and will of Kashmiris, the issue of Kashmir was reduced from international standing (such as the UN) to a
bilateral one through the Simla Agreement, and the right of self-determination of Kashmiris was made
subject to the fulfillment of the agreement. In this way, if the ultimate beneficiary of the 1971 war was
Bengalis, the ultimate loser of the 1971 war was Kashmiris for no fault of theirs. In fact, in 1971,
Kashmiris had lost the battle of Kashmir without even fighting it.
If the timeframe to resolve the Kashmir issue is not written in the Simla Agreement, it is also not written
that the final settlement of the Kashmir can be kept pending for an indefinite period of time. In this way,
the right of self-determination of Kashmiris has been made conditional on the time clause that is found
absent in the agreement. Kashmiris may demand the time clause to effectuate their right of self-
determination.
Secondly, the Simla Agreement makes negotiations between the two signatory countries subject to
certain conditions. In this way, the right of self-determination of Kashmiris has been made conditional
on the availability of certain circumstances. Kashmiris may demand unconditional bilateral negotiations
between the signatory countries to hasten the process of the final settlement of the Kashmir issue.
Thirdly, the Simla Agreement has no binding on Kashmiris and does not prohibit them from raising their
voice for the right of self-determination at the international level. Kashmiris may resort to it.
Fourthly, the Simla Agreement does not forbid Pakistan from sending the issue of Kashmir back to the
UN, given the dysfunctional state of the Kashmir portion of the Simla Agreement. Pakistan may opt for
this option.