On October 26, 1947, Jammu and Kashmir Prime Minister Meher Chand Mahajan barged into Indian Prime Minister Nehru’splace only to persuade him to instal popular leader Sheikh Abdullah as Prime Minister of J&K and send troops to fight the Pakistani tribal militants called ‘Kabalis' invading Kashmir to annex it with Pakistan. He said further that if the Indian authorities turned him down, he would straight head for Lahore to strike a deal with Jinnah to integrate Kashmir with Pakistan. Nehru got wild at Mahajan and told him to ‘get out' of sight. But Sardar Patel saw a great opportunity, told Nehru to cool down and agree to help the Kashmiri monarch. He dispatched the military troops without delay. Maharajah Hari Singh by then had been reduced to a helpless, distressed refugee in Jammu.
Jinnah was also busy doing his part to woo the Kashimiris. He ordered his British commander-in-chief to march two brigades of the Pakistani army into J&K on October 27, one from Rawalpindi and the other from Sialkot. The Sialkot brigade was expected to take Jammu and capture Hari Singh while the Rawalpindi brigade was to seize Srinagar. But the British officer refused, saying it was improper to send troops of one dominion to fight those of another former British dominion without consulting the supreme commander of both the dominions. The Supreme Commander Claude Auchinleck had told Jinnah on October 26 that since Kashmir had decided to accede to India, it had the right to send troops at the Maharaja’s request. Jinnah had to remain quiet.
The Indian army landed in Srinagar next morning as the Maharaja had decided to accede to India and hand over power to Sheikh Abdullah. The Sheikh was duly sworn in as head of emergency administration. A few months later, he became the Prime Minister of the State.
Until the Pakistani military mischief happened, Hari Singh had cherished the desire of keeping his kingdom an independent territory and turn it to Switzerland of the East. But as the Sheikh had become more popular than the king, he had to listen to the former on all critical issues. He had, somehow, convinced the Maharaja that Pakistan would be a rogue country as Jinnah was an ignoble soul. Coincidentally, when Mahajan was holding serious talks with Nehru, the Sheikh was around there and provoked Nehru against the Pakistanis. He moved out to meet Hari Singh and advised him to make J&K part of India. Thus, India gained the kingdom of J&K.
Until Independence, J&K was under the British rule that allowed the State to have internal autonomy. Therefore, J&K people were the subjects of the princely state only and not of the British colony at any time. Several political movements in the region in the early twentieth century had resulted in the introduction of hereditary rights in J&K as a unique subject through a number of provisions between 1912 and 1932. The 1927 ‘Hereditary Order' was passed by Hari Singh which granted all permanent residents the right to office of the government and also the right to land use as well as ownership.
The British gave India independence making adequately clear that the 564 princely states were free to choose between self-rule and integration with any of the two new nations. Later, due to constant Pakistani invasion, Mountbatten told Nehru to seek the UNO's intervention and eventually ended up in getting a line if control. Thus, J&K got split as per occupation and became a disputed state. Hari Singh’s conclusive accession to India was not considered sacrosanct enough. The Maharaja, fully under the control of Seikh Abdullah, used all arm-twisting techniques to extract maximum benefits from the Government of India. One non-negotiable condition was a special status. Thus was the most controversial Article 370.
Many legal experts feel that abrogating Article 370 would put the accession in jeopardy as the special status was a strictly rigid condition for accession. There is also a debate over whether Article 370 is part of basic structure of the Constitution and whether it can be amended. Former Law Minister Shanti Bhushan says that though under Article 368 Parliament has the power to amend the Constitution, it’s not easy to do so. The Supreme Court alone can decide if Article 370 can be scrapped at all as there are legal complications involved due to the strict conditions placed by the Maharaja for accession.
But Article 35A, which defines permanent residents of the State, has not been brought in place as per the Constitutional provision. A resident is a person who was a subject of the State on May 14, 1954 or one who has been residing for a period of 10 years with immovable property.The provision also states that no act by the legislature made under Article 35A could be challenged for defying the Constitution or any other law of the land. The citizenship matter was cleverly put under the State subject of J&K.
In 1949, Sheikh Abdullah took over charge from the Dogra king and negotiated the political relationship between New Delhi and his State. He also managed cleverly to push in the controversial Article 370 (1) (d), which restricted the jurisdiction of the Indian Union over J&K. In 1954, Article 35A was included by only an order of the then President Rajendra Prasad on the advice of the Nehru Cabinet, which may not stand any judicial scrutiny. The legislature had never worked at creating the discriminatory Article 35A. Interestingly, two Kashmiri women have contested Article 35A, saying the provision is discriminatory in nature as it deprives their children of their rights. In 2002, the J&K High Court had upheld the women’s rights stating that women would continue with their rights and privileges even if they marry an outsider. The children of such women could also have some rights of claim. Article 370 may be difficult to play with, but 35A has to go.
Modi is now on cloud nine for having ordered the airstrikes that destroyed several terror training hideouts deep in Pakistan without hurting any military establishment or civilian habitation. The BJP election manifesto had also promised to scrap Article 370. He has to do something about this now to become a bigger hero. Or else, his popularity will start taking a downward plunge soon enough. There will, of course, be a great deal of turmoil in the Kashmiri region as aftermath. But India is presently in the most favourable position with incredible international support for having fought terror quite impressively. Pakistan has been cautioned even by permanent allies including China and Saudi Arabia to refrain from military misadventures of any kind against India. Modi only has to take advantage. Lastly to some interesting portions of history not discussed popularly.
When the Pakistani invaders had attacked Kashmir, killing and looting people. Nehru first sought Biju Patnaik’s help for the Odia pilot was already known as a daredevil flier. Biju landed on Kashmir soil at the dawn of October 27, 1947 with 17 top-grade soldiers of the valorous Sikh regiment. He had flown at a very low level to ensure enemy failed to notice his flight. Nehru had given very clear instructions to him not to land his DC-3 if he ever detected Pakistani presence there. This is a very vital fact in India’s Kashmir history not told by many people because if we had lost Srinagar in the 1947 Kashmir War, we would have lost the entire territory of J&K. Most of the roads by then had been blocked by the invading forces, securing the Srinagar airport. Thus, sending troops through that dangerous airport was the deciding factor in India’s takeover of Kashmir. The big history created by Biju Patnaik has been lost because no war historian of India makes any special mention of the fact, and, more so because Biju never beat his drums in public later. Two days ago, his birthday was observed as the Panchayati Raj Day for he only had popularised ‘rural self-governance in letter and spirit.
The other forgotten hero is Meher Chand Mahajan, without whose timely warning, Kashmir would have gone to Pakistan. Mahajan rose to become the third Chief Justice of India on January 4, 1954.
Sadly, chroniclers do not talk of Biju Patnaik and Mahajan while narrating tales of Kashmir integration with the Union of India.
(The writer is a core member of Transparency International, Odisha)