Abstract
The Kashmir issue is the longest-running and most real between Pakistan and India. Various bilateral and global initiatives failed to fix the problem. The two countries have fought hot and cold conflicts that have harmed their bilateral relations. India’s attempts to strengthen its control of Kashmir through the use of force have always been met with resistance from Pakistan, which supports Kashmiris’ right to self-determination under the UN Resolution of 1948-49.
In recent events, the Indian Parliament passed the Jammu and Kashmir Reorganization (Amendment) Bill, 2021. This follows the 2019 Reorganization Act. While the government of India has presented the bill as a necessity, there have been many voices rising against it. This paper examines and analyses the bill and the 2019 Act. Further, it investigates the history of the Kashmir issue and significance of the region.
Keywords: Jammu and Kashmir, Jammu and Kashmir Reorganization Act, 2019, Jammu and Kashmir Reorganization (Amendment) Bill, 2021.
Introduction
Kashmir is included in the list of the most dangerous and problematic regions on the planet. Three major wars and two minor battles have been fought between Pakistan and India over Kashmir. This confrontation is a threat to world security as both the countries are nuclear powers. Over the recent years, the Kashmir issue has received a lot of international attention.
It is necessary to look back into the history of the region in order to comprehend this war. Princely states could decide whether to yield to India or Pakistan at the time of partition. Generally, Muslim-majority states moved to Pakistan, whilst Hindu-majority states went to India, although India is a secular country. Kashmir was an outlier. While the bulk of the people were Muslim, Maharaja Hari Singh, the ruler, was Hindu. Lord Mountbatten advocated for Kashmir’s to be a part of India.[1]
Hari feared that Kashmiri Muslims would be unhappy with a merger of Kashmir with India, while Hindus and Sikhs would be unhappy in Pakistan.[2] So, he decided that Kashmir would remain independent. There were eruptions of unrest against the monarch in certain regions during this period of ambivalence. Thereafter, Pakistani tribesmen and militia crossed into Kashmir, robbed and ravaged the region and attempted to take control of Srinagar.[3] In order to combat the chaos, Hari Singh handed Kashmir to India and pleaded for assistance. As a result, the First Indo-Pakistani War erupted.
By the end of 1948, Pakistan and India had fixed their hold in the region. A line of control (LOC) and a cease-fire agreement was reached. Nearly two-third of Kashmir fell under the Indian administration while control of the remaining third fell in the hands of Pakistan.
However, the LOC’s formation in 1948 proved insufficient. The mediator was the United Nations. On April 21, 1948, the Security Council considered and adopted Resolution 47. In order to assist India and Pakistan in establishing peace in Kashmir, a five-member panel was to travel to the Indian subcontinent. While India accepted the resolution, Pakistan rejected it. Thus, the issue was never solved until today when it has become massive.
The region of Kashmir is crucial for national security, geography, and resources. One of the world’s most important rivers, Indus flows through the region of Kashmir. Both India and Pakistan are heavily dependent on the Indus River for agriculture. The river is extremely significant in the lower Indus valley, where rainfall is rare. Hence, the demand for the Indus and its tributaries is high. The nation that successfully dominates this region can shut off the other’s water supply. To address these issues and assure an equitable distribution of water from this river, the Indus Water Treaty was established on September 19, 1960.[4] The eastern tributaries of the Beas, Ravi, and Sutlej are under Indian authority, while the western rivers of the Indus, Chenab, and Jhelum are under Pakistani control. India owns around 16 per cent of the river’s total water, while Pakistan owns the remainder. However, Pakistan still fears that India may still choke the water supply, as it has control over the Indus. It is important to note here that India never did this in the previous wars.
The Kashmir issue has stemmed into bloody battles over the years. Not a day passes when news of infringement of LoC airs on the people’s television sets. It has escalated since the passing of the Jammu and Kashmir Reorganization Act, 2019. The Act nullified Art. 370 of the Indian Constitution, which gave the state some autonomy. As a result, the state had a separate constitution and flag. It could adopt its own laws. Foreign affairs, defence, and communications were managed by the Central Government. The state, therefore, was able to set its own regulations for permanent residency, property ownership, and fundamental rights. It might also prevent non-Indians from purchasing land or settling in the state.
Both Pakistani leaders and Indian leaders from Kashmir are not in support of the move. This paper examines the latest development in the politics of Kashmir- Jammu and Kashmir Reorganization (Amendment) Bill, 2021, its impact and puts forward opinions and suggestions.
Research Methodology
The researcher has chosen a doctrinal method of research in which she will go through both primary and secondary sources. She will get an exact picture of the problem under study through this method. The researcher will go through both primary and secondary sources, whereby she will do a comparative study of the topic. She will go through works by eminent writers. This will help her get a bird’s eye view of the subject under study.
The primary sources include a parliamentary discussion of the topic, views adopted by the courts, literature, etc. The secondary sources include newspapers and magazines.
Review of Literature
It’s difficult to write popular history. Historians writing for students can assume that their audience is familiar with the subject. Popular historians, on the other hand, are tasked with assisting those who may lack the essential knowledge of geopolitics, history, or geography in understanding, analysing, and comprehending the sequence of complex events, as well as assisting them in forming an opinion. When it comes to Jammu and Kashmir, the burden is significantly greater, especially in the post-Art. 370 age. Much of today’s history of Jammu and Kashmir is based on fabrication and misinformation.
To understand the history and the aim of the government, reading about Jammu and Kashmir is essential. The following books can help in grasping the situation better:
- The Untold Story of Kashmir Declassified, written by Iqbal Chand Malhotra and Maroof Raza, published by Bloomsbury Publishing.
Before dealing with the status quo of Jammu and Kashmir, it was necessary for the researcher to understand the history of Kashmir. The researcher also had to analyse the circumstances which lead to the years of conflict between India and Pakistan and the reasons for the conflict to continue despite peace-making efforts. Only after comprehending this could the researcher proceed with the examination of present laws and the necessity for abrogating Art 370.
The Untold Story of Kashmir Declassified is an endeavour by two journalists, one of whom is a former soldier, to piece together Jammu and Kashmir’s tumultuous history. Importantly, the book concentrates on Jammu and Kashmir in the years leading up to India’s independence on August 15, 1947. The book provides a quick overview of Kashmir’s history. A significant portion of the story examines how Pakistan seized areas like Gilgit and Pakistan-Occupied Kashmir with British assistance even after Maharaja Hari Singh acceded to India.
The book, on the other hand, adds to the existing literature on the British intention to sabotage the peaceful integration of Jammu and Kashmir into India in the future interests of the Anglo-Saxon globe. It looks at Major Onkar Singh Kalkat of the Bannu Brigade’s role, as well as Operation Datta Khel, a coup organised by British Army commanders Captain William Brown and Colonel Roger Bacon against the Maharaja of Jammu and Kashmir that resulted in the handover of Gilgit to Pakistan. A significant amount of time is dedicated to examine the role of British officers in the Indian and Pakistani forces in thwarting New Delhi’s intentions, as well as Nehru’s frustration with them.
- Kashmir after 2019 Completing the Partition edited by Werner Menski and Muneeb Yousuf
The situation of Jammu and Kashmir has changed considerably since 2019. It is under constant observation of the Indian Government. Every second day, some amendment is suggested with an intention of developing the region by the Government. It is a region of extreme importance. For critically analysing the recent amendment, the researcher had to analyse how the situation in the region has changed post-2019 and the status quo.
Using an interdisciplinary conceptual framework and the kite approach to analyse law-related conflict scenarios, Kashmir after 2019: Completing the Partition examines the post-2019 Kashmir situation, allowing for thorough stakeholder analysis. Jammu & Kashmir was left hanging between dreams of Azadi (independence) and rival territorial claims of India and Pakistan after the incomplete partition of the Indian subcontinent on 14/15 August 1947. This limbo, which incurred increasing expenditures over time, eventually resulted in excruciating agony for the diverse Kashmiri people. The book is an impassioned search for a peaceful future, with an eye toward arrangements after 2019. It explains why, by 2019, the time had finally come for India and Pakistan, as the respective ‘others,’ to keep the sections of Kashmir that they have each held since 1947. The kite model, a diversity-conscious theoretical framework, advises finishing this future-oriented and solution-driven edited book.
Jammu and Kashmir Reorganisation Act, 2019
Mr. Amit Shah, Minister of Home Affairs, introduced the Jammu and Kashmir Reorganisation Bill, 2019 in the Rajya Sabha on August 5, 2019.[5] The bill called for the state of Jammu and Kashmir to be reorganised into the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh. The Lok Sabha passed the bill on August 6, 2019.[6]
By declaring Art. 370[7] null and unconstitutional, the BJP administration has effectively deleted it from the Indian constitution. According to Sec. 3 of Art. 370, “this article can cease to exist.”[8] This indicates that a presidential order in consultation with the constituent assembly of Jammu and Kashmir could declare this item null and void. As a result, the President and the Jammu and Kashmir state administration can jointly make this decision. However, at the time of repeal, there was no state government in place and Jammu and Kashmir was under President’s administration. The state government’s powers were handed to the Indian Parliament. As a result of the Presidential decree, the Indian Parliament declared Art. 370 null and void. Art. 35A[9] also disintegrated as a result of this ruling.
The act divided the state of Jammu and Kashmir into two parts, namely the Union Territory of Jammu and Kashmir, which has a legislature, and the Union Territory of Ladakh, without a legislature. The Union Territory of Ladakh comprises the districts of Kargil and Leh.[10] The remaining areas of the pre-existing state of Jammu and Kashmir are a part of the Union Territory of Jammu and Kashmir. According to the Government, the scrapping of Art. 370 and reorganization was a necessary step to integrate the state and bring it to the same footing as other states in the country.[11]
Under the Act, the President nominates a Lieutenant Governor for the management of the Union Territories of Jammu and Kashmir and Ladakh.[12] The Act also establishes a Legislative Assembly for Jammu and Kashmir.[13] There will be a total of 107 seats in the Assembly.[14] Twenty-four 24 seats represent Pakistan occupied Kashmir area and are left vacant.[15] In addition, in proportion to their population in the Union Territory of Jammu and Kashmir, seats in the Assembly would be allocated for Scheduled Castes and Scheduled Tribes. In addition, if women are underrepresented in the Legislature, the Lieutenant Governor may designate two members to the Legislative Assembly.[16]
This move is for the welfare of Kashmiris and Indians and has many merits attached. There is no separate constitution or flag for Jammu and Kashmir since the decision of Art. 370. The people of Kashmir will benefit from the repeal of Art. 370 because they will be able to merge with the rest of India. They have the right to be a part of India, and Indians have the right to be a part of Kashmir. They have the opportunity to apply for educational scholarships. They can work for the government in Kashmir.
Now, any citizen can purchase land and make large investments in Kashmir, causing land values to soar. Local Kashmiris will receive more money in exchange for the land they lease to Indians. Companies may come in and invest, which will result in more employment being created. Educational options will expand with an influx of students from across the country to study in the UT. One of the greatest merits of revocation of Art. 370 is Kashmiris will now have access to both education and information. Moreover, Kashmiri pandits who had to flee can now return and live in Kashmir.
While the move is overall appropriate and praise-worthy, there are also disadvantages. Kashmiris feel betrayed. They think that the Central government is ignoring the voice of their democratically elected leaders. Thus, ignoring their opinions as well. Art. 370 gave Kashmir a special status. But with its repeal, the status of J&K is reduced to a UT. It is under the direct control of the Centre making its democratic set-up much lower than the normal states in the country. While the state legislature still exists in the UT of J&K, the members do not have the same powers as before. Kashmiris are dissatisfied with the circumstances under which this decision was taken and regard it as unconstitutional.
There is no law without a flaw. Obviously, dissatisfaction is an inevitable consequence of this move. However, there is no flaw that cannot be removed or significantly reduced. It is up to the Centre to regain the trust of the general public and the leaders by initiating development programs in the UT. The Centre has taken several steps in this regard. The recent one is the Jammu and Kashmir Reorganisation (Amendment) Bill, 2021.
The Jammu and Kashmir Reorganisation (Amendment) Bill, 2021
On February 4, 2021, Rajya Sabha introduced the Jammu and Kashmir Reorganisation (Amendment) Bill. It repeals the Jammu and Kashmir Reorganisation (Amendment) Ordinance, 2021. The Lok Sabha approved the Jammu and Kashmir Reorganisation (Amendment) Bill, 2021 on 13th February 2021.[17]
On January 7, 2021, the Jammu and Kashmir Reorganisation (Amendment) Ordinance, 2021 was signed into law. It modified the 2019 Jammu and Kashmir Reorganisation Act.[18] Key features of this ordinance are:
Art. 239A of the Constitution will apply to the union territory of J&K, according to the ordinance. This Art. also applies to the UT of Puducherry. Art. 239A establishes a Puducherry union territory with an elected or nominated or partly nominated legislature or a Council of Ministers. Any other provision of the Constitution relating to elected members of a state’s legislative assembly, applicable to the union territory of Puducherry will also apply to the UT of J&K in addition to Art. 239A.
Members of the Indian Administrative Service, Indian Police Service, and Indian Forest Service serving in the state of J&K will continue to serve in the two UTs based on allocations determined by the central government, according to the Act. Officers from Arunachal Pradesh Goa Mizoram Union Territory (AGMUT) cadre will be posted in the two UTs in the future. All three states of Arunachal Pradesh, Mizoram, and Goa, as well as all union territories, are covered by the AGMUT cadre. The Ordinance changed these clauses to allow the officers in the existing J&K cadre to be merged with the AGMUT cadre.
The main purpose of the bill is to permanently merge the cadre of J&K with AGMUT. The government is trying to put Jammu and Kashmir on the path of development. The ratio of direct recruits in civil services to promotees from Jammu and Kashmir State Civil Services (Kashmir Administrative Service) was fixed at 50:50 according to the previous rule. In other states the 67:33 formula is followed. Thus, the shortfall of All India Service Officers in Jammu and Kashmir can be tackled by this move. Officers from the Jammu and Kashmir cadre would report to the Ministry of Home Affairs (MHA) directly. MHA will be the ultimate authority on service issues, including interstate travel, transfer of officers, promotions, foreign deputations, and other segments.
The bill faced aggressive opposition in the Houses of Parliament.[19] An ordinance is generally not promulgated in ordinary circumstances. An ordinance should ordinarily be preceded by an emergency situation or any other urgency. Therefore, it is not desirable for the Parliament to issue an ordinance as it pleases in a parliamentary democracy. It is contended that the cadre deployed in J&K should comprise officers from the UT as they are aware of the ground-level situation. In the union territory, militancy is still present, and residents are living in fear. It is alleged that the government attempted to turn Jammu and Kashmir into a big prison, blocking telecommunication services and failing to normalise the situation. After the abrogation of Art. 370 of the Constitution, which granted the erstwhile state special status, over 170 central laws are being enforced in Jammu and Kashmir. Laws are being enacted and amended every second day which is causing unnecessary confusion.
Suggestions & Recommendations
The Kashmir issue is not a new one. All attempts to resolve the issues have been unsuccessful. But my major concern is not the international one i.e., the dispute between India and Pakistan. I am rather concerned about the unheard voices of the Kashmiris. While both countries are engaged in politics, the ones on the receiving end are the commoners. So, what can be done?
With the revocation of Art. 370, a lockdown was imposed in Kashmir.[20] The internet in the region was shut immediately fearing protests. Kashmir in the guise of being integrated into India was completely shut off for nearly 18 months.[21]
The government has taken small, hesitant moves to lift some of the restrictions since August, but it still falls far short of safeguarding Kashmiri rights. Many of the thousands of people who were arbitrarily detained[22] – lawyers, business owners, traders, students, and human rights advocates – have now been released, but only on the condition that they promise not to criticise the administration. Some leading Kashmiri politicians, including previous chief ministers, are still being held in detention. At least 144 youngsters have been detained by police, and the chief of defence staff has suggested placing them in “deradicalization camps.”[23]
It would be too little to say that people are afraid. Now the government is also deploying a new set of officers. While it is a necessary step considering the growing militancy, it also generates fear in the minds of Kashmiris.
Thus, before anything the government and every other Indian need to build trust in the Kashmiris. The government should focus on creating employment and promoting industries. New Kashmir can only build on the foundation of trust. The government has also promised the recovery of statehood to the UT. It should see that this promise is fulfilled.
Conclusion
The India-Pakistan conflict started in 1947 when British India was divided into two separate territories. The whole then princely state of Jammu and Kashmir was claimed by both India and Pakistan. The territorial dispute resulted in three brutal wars between the two countries and numerous armed clashes. Despite the peace-making efforts, the issue is unresolved. While the abrogation of Art 370 is an appropriate move, mere abrogation of the provision cannot ensure development and positive changes in the region. Kashmir is a very sensitive region especially since the abrogation of Art 370. Thus, the Indian government has to be very careful with any new law or amendment it introduces. The people of Kashmir must be the priority.
[1] Pinky Dhall, Strategic Importance of Kashmir: Conflict between India and Pakistan, 14 (2) JASRAE. 192, 192-194 (2018) http://ignited.in/a/56157#:~:text=Since%20independence%20in%201947%20of,nuclear%20forces%20of%20South%20Asia
[2] Sikata Banerjee & Navnita Bahera, State Identity and Violence: Jammu, Kashmir and Ladakh, 60 (2) JAS. 578, 578-580 (2001) https://www.cambridge.org/core/journals/journal-of-asian-studies/article/abs/state-identity-and-violence-jammu-kashmir-and-ladakh-by-navnita-chadha-behera-new-delhi-manohar-2000-384-pp/C4C0A61D21BF90F7BD0DEEC0C7D35F65
[3] Satish Chandra, Addressing Kashmir, 35 (2) Strateg. Anal. 304, 304-307 (2011) https://www.tandfonline.com/doi/abs/10.1080/09700161.2011.542928
[4] The World Bank https://www.worldbank.org/en/region/sar/brief/fact-sheet-the-indus-waters-treaty-1960-and-the-world-bank (last visited on Dec. 1, 2021).
[5] PRS Legislative Research https://prsindia.org/billtrack/the-jammu-and-kashmir-reorganisation-bill-2019 (last visited on Dec. 2, 2021).
[6] Shaswati Das, Lok Sabha passes Jammu and Kashmir Reorganization Bill, Live Mint (Dec. 2, 2021, 2:49 PM) https://www.livemint.com/politics/news/lok-sabha-passes-jammu-and-kashmir-reorganisation-bill-1565102858608.html
[7] INDIA CONST. art. 370.
[8] INDIA CONST. art. 370, § 3.
[9] INDIA CONST. art. 35A.
[10] The Jammu and Kashmir Reorganization Act, 2019, § 3, No. 34, Acts of Parliament, 2019 (India).
[11] BBC https://www.bbc.com/news/world-asia-india-49234708 (last visited on Dec. 1, 2021).
[12] The Jammu and Kashmir Reorganization Act, 2019, § 5, No. 34, Acts of Parliament, 2019 (India).
[13] The Jammu and Kashmir Reorganization Act, 2019, § 4, No. 34, Acts of Parliament, 2019 (India).
[14] The Jammu and Kashmir Reorganization Act, 2019, § 14, No. 34, Acts of Parliament, 2019 (India).
[15] Id.
[16] The Jammu and Kashmir Reorganization Act, 2019, § 15, No. 34, Acts of Parliament, 2019 (India).
[17] Indian Express https://indianexpress.com/article/india/parliament-live-updates-lok-sabha-fm-sitharaman-rajnath-singh-budget-session-7186635/ (last visited on Dec. 2, 2021).
[18] PRS Legislative Research https://prsindia.org/billtrack/the-jammu-and-kashmir-reorganisation-amendment-ordinance-2021 (last visited on Dec. 1, 2021).
[19] Business Standard https://www.business-standard.com/article/current-affairs/govt-introduces-j-k-reorganisation-amendment-bill-2021-in-lok-sabha-121021301071_1.html (last visited on Dec. 2, 2021).
[20] Meenakshi Ganguly, India Failing on Kashmir Human Rights, Human Rights Watch (Dec. 6, 2021, 3:30 PM) https://www.hrw.org/news/2020/01/17/india-failing-kashmiri-human-rights
[21] Mir Eshan, 17 months on, 4G services restored in Jammu and Kashmir, Hindustan Times (Dec. 6, 2021, 4:15 PM) https://www.hindustantimes.com/india-news/17-months-on-4g-internet-services-restored-in-jammu-and-kashmir-101612564917419.html
[22] Reuters https://www.reuters.com/article/us-india-kashmir-children/nine-year-old-among-nearly-150-children-briefly-held-in-indian-kashmir-court-probe-idUSKBN1WG47W (last visited on Dec. 6, 2021).
[23] Dinaker Peri, Children being radicalised in Kashmir, The Hindu (Dec. 6, 2021, 4:45 PM) https://www.thehindu.com/news/national/raisina-dialogue-states-sponsoring-terrorism-must-be-taken-to-task-chief-of-defence-staff-gen-bipin-rawat/article30573674.ece