A Curious Case Study By An American on Kashmir Dispute (Part 2)

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Never Ending Kashmir Dispute

In continuation of… A Curious Case Study By An American on Kashmir Dispute (Part 1)


The Indian civilization finally woke up to an era of realizing its long cherished and hard fought dream of nationhood.

However, fate had destined one last blow of plunder and pillage of a different nature.

A man named Mohammed Ali Jinnah mistook independence from the British to mean the subcontinent had just turned into a once in a lifetime opportunity to a grab-all-you-can real estate bonanza[4].

He claimed that the Muslims needed a separate homeland, just because they were born Muslims, and needed protection from the violent and unpredictable Hindus in an independent India.

Jinnah made sure they got one at the cost of 2 million dead and 14 million displaced from their homes.

But, for Jinnah’s overbearing lust for a kingdom and a throne, that was a small price to pay so long as Muslims could secure their “only for us” homeland. 

A few decades down the line that cherished homeland for Muslims would turn out to be a paradise for the rich, the privileged and the corrupt among Punjabi Sunni Muslims and purgatory for Muslims of all other types and sects.

But, Pakistan didn’t know that yet.

While Jinnah and his coterie enjoyed their newfound real estate, the British spiced up the situation with a menu of options to the autonomous princely states.

Those options were – merge with either India or Pakistan, or remain independent.

The king of Jammu and Kashmir, Raja Hari Singh chose the latter. His decision caused serious concern in Jinnah’s homeland named Pakistan (Land of the Pure).

Pakistan’s Lust for Kashmir and the First Kashmir War of 1947 – 1948

Neither the Indian Independence Act of 1947, nor the Radcliffe Boundary Commission indicated that Kashmir “belonged to Pakistan”.

There is not a single piece of documentary evidence that the British or for that matter the ruler of Kashmir, ever wanted Kashmir to be a part of Pakistan.

Yet, rulers in Pakistan worried that Kashmir would either remain independent, or worse, join India.

Pakistan’s lust for Kashmir was born out of the perverted ideology that territories in the South Asian subcontinent, with Muslim dominated demographics, should belong to Pakistan.

This twisted ideology would be busted in 1971 with the mass rebellion and separation of East Pakistan from West Pakistan. But, Pakistan didn’t know that yet.

To secure Kashmir, Pakistan dispatched tribal marauders to seize Kashmir by force.

On 22 October 1947, Pakistan’s Pashtun tribal militias crossed the border of the state.

These local tribal militias and irregular Pakistani forces moved to take Srinagar, but on reaching Baramulla, they took to plunder and rape and stalled.

Hari Singh’s Decision to join India

Maharaja Hari Singh made a plea to India for assistance, and help was offered, but it was subject to his signing an Instrument of Accession to India.

The then British Viceroy Lord Mountbatten would not allow India’s intervention without a formal treaty with the Maharaja. T

he Instrument of Accession broke that stalemate.

By executing this document under the provisions of the Indian Independence Act 1947, Maharaja Hari Singh agreed to accede to the Dominion of India.

The Instrument of Accession gave India’s Parliament the power to legislate in respect of the state of Jammu and Kashmir only on the matters of defense, external affairs and communications.

The events that followed on the battlefield, to the settlement at the Line of Control (LOC) are well documented, and I will refrain from repeating, facts well known.

The Indian army succeeded in pushing the Pakistani marauders back, so that two-thirds of Kashmir, including the Srinagar valley, remained in India territory, while the remaining one-third of Kashmir came under Pakistani occupation.

The irony is that Pakistan renamed that occupied territory as “Azad Kashmir”, meaning liberated Kashmir.

The Instrument of Accession

The Instrument of Accession, which Maharaja Hari Singh signed with India was a simple document.

In the blank spaces, it had a place to fill in the name of the state, the name of the ruler, the date of accession, a place to hold the signature of the ruler and lastly, a line where Lord Mountbatten would put in his signature.

This simple document was used to persuade 602 princely states to join the Union of India.

When a princely state signed the Instrument of Accession, it gave India’s Parliament the power to legislate on the matters of defense, foreign affairs and communications.

Thereafter, the delegates of the princely states would meet with India’s Constituent Assembly to gradually bring their kingdoms under the full purview of the Indian Constitution.

The princely states were also participants in the formulation of the Indian Constitution.

This process of political amalgamation was somewhat similar to the Constitutional Convention of the United States, also known as the Philadelphia Convention that took place from May 25 through September 17, 1787.

This process would culminate in a complete adoption of the Indian Constitution by the state in question thereby consummating the accession of the state to the Union of India.

With Jammu and Kashmir, the process diverged a bit.

Though Maharaja Hari Singh signed the Instrument of Accession, his government pointed out that they were signing the document under exceptional circumstances, as they were under attack from a neighboring entity – Pakistan.

So as not to be rushed into the process, they asked for more time to align themselves with the Union of India.

The Constituent Assembly agreed to this special request.

However, there was a debate on which parts of the Constitution would apply to the state of Jammu and Kashmir, which would not, and at what length of time would the accession be complete.

To accommodate Jammu and Kashmir’s accession to India, the only temporary Article in the Indian Constitution was drafted. This was called Article 306A which later became Article 370.

Article 370

In March 1948, the Maharaja appointed an interim government in the state, with Sheikh Abdullah as the prime minister.

In July 1949, Sheikh Abdullah and three other colleagues joined the Indian Constituent Assembly and negotiated the special status of Jammu and Kashmir (J&K), leading to the adoption of Article 370.

The controversial provision was drafted by Sheikh Abdullah.

Article 370, which came into force in 1952, empowered J&K to be a near autonomous state since it limited the Indian government’s authority to just external affairs, defence, finance and communication.

This provision allowed J&K to have a Sadar-e-Riyasat for governor and prime minister in place of a chief minister till 1965 as well as its own flag and constitution.

Article 370 ensured that the law of citizenship, ownership of property, and fundamental rights of the residents of Jammu & Kashmir are different from the residents living in the rest of India.

Under Article 370, citizens from other states cannot buy property in Jammu & Kashmir.

Under Article 370, the Indian government had no power to declare a financial emergency.

Sheikh Abdullah wanted to turn Article 370, the only temporary provision in the Indian Constitution, into a written-in-stone edict that could not be replaced or terminated by future Indian governments.

This violated the very understanding which India’s Constituent Assembly had reached with the state of Jammu and Kashmir – that the accession of the state to the Indian Union would be put on a slow but certain pace through Article 370.

Fortunately for India, Sheikh Abdullah did not succeed in voiding the temporary nature of Article 370, which is why the Article has now reached it’s a logical conclusion, under the current Indian government.

Article 35A

Article 35A which comes under Article 370, gave the Jammu and Kashmir Legislature full discretionary power to decide who the ‘permanent residents’ of the state are.

It gave them special rights and privileges regarding employment with the state government, acquisition of property in the state, settling in the state, and the right to scholarships and other forms of aid that the state government provides.

It also allowed the state legislature to impose any restrictions upon persons other than the permanent residents regarding the above.

Article 35A proscribed non-permanent residents of Jammu and Kashmir from permanently settling in the state, buying immovable property, acquiring land, applying for government jobs or any kind of scholarship, aids as well as other public welfare projects.

A Walled Garden

Article 370 and it’s component Article 35A turned the state of Jammu and Kashmir into a Walled Garden.

Inhabitants of this garden could venture out and enjoy all benefits of the land outside, but residents from the land outside would have very little freedom or privileges if they walked into the garden, even though the garden was part of their land.

The walled garden designed by Sheikh Abdullah in collusion with India’s first Prime Minister Pt. Jawaharlal Nehru would turn out to be a golden cage for Kashmir that would keep it in Indian territory while preventing any encroachment from Pakistan, or even from entities within India.

However, a few decades down the line, this approach would precipitate a disastrous series of events not only for Jammu and Kashmir but also for India.

India didn’t know that yet, nor did the state of Jammu and Kashmir.

The Night of January 19, 1990

Pakistan had not forgotten its unfinished business from the war of 1947 – 1948.

It had captured a third of Kashmir. However, two-thirds of Jammu and Kashmir which included the prized Kashmir valley was still in Indian territory.

Pakistan had been biding its time for an opportune moment to strike.

That time came in the late 1980s. By 1989, Pakistan believed it now had a proven strategy. It was the one used to defeat the Soviets in Afghanistan.

The strategy of infiltrating well trained Mujahideen across the Indian border into Kashmir to train and arms locals and incite them to foment jihad against every Indian entity present in Kashmir.

Also, Pakistan had the nuclear umbrella, to deter (as it hoped) any significant pushback from India in response to the proxy-war about to be launched in Kashmir.

The nuclear threat was a tactic that Pakistan used very effectively against a far more powerful but surprisingly docile India, for a span of almost 25 years (till a man named Modi would come and call Pakistan’s nuclear bluff).

Thus, Pakistan launched an asymmetric war in Kashmir.

The cold, dark night of January 19, 1990, had stirred into life the worst nightmares of Kashmiri Pandits living in the Kashmir valley.

Screaming from loudspeakers and crowded streets was a message for the Sikhs and Hindus living in Kashmir – Ralive, Tsalive ya Galive which translated from Kashmiri means “Convert to Islam, leave the place, or perish“.

The threats had been coming in for a long time, but the night of January 19 is said to have seen a demented assault of a different level.

Almost 3 decades later, Kashmiri Pandits shiver remembering the night that forced them into exodus.

Colonel Tej Kumar Tikoo, a Kashmiri Pandit himself, describes that fateful night in his book, Kashmir: Its Aborigines and Their Exodus[5].

“As the night fell, the microscopic community became panic-stricken when the Valley began reverberating with the war-cries of Islamists, who had stage-managed the whole event with great care; choosing its timing and the slogans to be used.

A host of highly provocative, communal and threatening slogans, interspersed with martial songs, incited the Muslims to come out on the streets and break the chains of ‘slavery’.

These exhortations urged the faithful to give a final push to the Kafir in order to ring in the true Islamic order.

These slogans were mixed with precise and unambiguous threats to Pandits. They were presented with three choices – Ralive, Tsaliv ya Galive (convert to Islam, leave the place or perish).

Tens of thousands of Kashmiri Muslims poured into the streets of the Valley, shouting ‘death to India’ and death to Kafirs.”

“The (Kashmiri) Pandits could see the writing on the wall. If they were lucky enough to see the night through, they would have to vacate the place before they met the same fate as Tikka Lal Taploo and many others.

The Seventh Exodus was surely staring them in the face. By morning, it became apparent to Pandits that Kashmiri Muslims had decided to throw them out from the Valley.

Broadcasting vicious Jihadi sermons and revolutionary songs, interspersed with blood curdling shouts and shrieks, threatening Kashmiri Pandits with dire consequences, became a routine ‘Mantra’ of the Muslims of the Valley, to force them to flee from Kashmir.”

Kashmiri Padits Exodus Day

Ethnic Cleansing of the Kashmiri Pandits

Through the export of battle hardened Mujahideen into Kashmir, the Pakistan military and the ISI had set in motion a strategy which would later be described as “bleeding India by a thousand cuts”.

The Muslims in the valley were being trained physically and psychologically, to envision a Kashmir free of any Hindu influence, geared up to demand statehood and complete independence from India.

Before the turn of the 21st century, Kashmir would be ethnically cleansed of Hindus that had called it home since the inception of the land.

To be continued… A Curious Case Study By An American on Kashmir Dispute (Part 3)

Team Explicit Facts would like to Thank Ms. Carla Stewart in granting permission to publish her article on our website.


[4] Carla Stewart’s answer to Do you think Pakistan should be a secular state like before?

[5] Kashmir: Its Aborigines and Their Exodus: Colonel Tej K. Tikoo: 9781935501343: Books

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India’s Move in Kashmir: Unpacking the Domestic and International Motivations and Implications – Christine Fair in LAWFARE, August 12, 2019

Indo-Pakistani War of 1947–1948 – Wikipedia

Explained: What are Articles 370 and 35A? Why they are important for J&K

Exodus of Kashmiri Pandits: What happened on January 19, 26 years ago?

Jammu and Kashmir: Arun Jaitley says Article 35A is ‘constitutionally vulnerable’

The Rule of Law and the State of Jammu & Kashmir

Arun Jaitley: BJP’s most articulate voice on Article 370, Kashmir issue falls silent

Jammu and Kashmir: Arun Jaitley says Article 35A is ‘constitutionally vulnerable’

Kashmir: A civilizational battle – Ashish Dhar on YouTube

#explicitfacts #explicit_facts #explicit-facts #mohammedalijinnah #british #muslim #pakistan #india #jammuandkashmir #kashmir #kasmirwar1947 #indiapakistanwar #mountbatten #article370 #article35a #sheikhabdullah #maharajaharisingh #lineofcontrl #instrumentofaccession #unitedstatesofmaerica #kashmirdispute #kashmiripandits

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