Autonomy Under Indian Constitution: An Old Pragmatic Approach To Kashmir or a Recipe for Disaster?

[Nilgiri]

Why would Pakistan not cooperate? It does not make any sense. Pakistan has always maintained that Kashmir issue needs to be resolved as per wishes of the people of Kashmir. Whether to want to join India or Pakistan. This has been the official stance.

Pakistan did not cooperate by not withdrawing its troops as stipulated by the resolution.

That was the first jam in the whole resolution. It was step 1 and Pakistan did not comply.

You do not complain about step 2 not happening if you cannot proceed with implementing step 1.

You really should watch this video as well:

 

[Joe Shearer]

This interaction comes to my mind whenever I hear people talk about UN resolution, plebiscite & all that malarkey.

She is saying the exact things that you, @Rain Man , @hellfire and I have outlined, at different times, in different places.

Can't the constitution be amended through the 2/3rds majority clause (in each house independently) through article 368 which comprises addition, variation and repeal of any previous provision?

This was the option around which two generations have broken our heads. We can amend the Constitution to say that what we said is no longer true, or that we have changed our minds. We cannot amend the Constitution to say for the J&K state constituent assembly what it could have said. We cannot amend the Constitution to make the obligation to them disappear.

That is my reading.

Let us see what the really great authorities - Noorani has said his piece, let's ask Jethmalani and Sorabjee - have to say about it.

 

[Hellfire]

First it has be to a principle agreement on plebiscite and all the steps need to be bilateral. However the modalities can discussed afterwards through committees under a commission.

Plebiscite was never your demand and was an Indian demand, it was something that India wanted. So Pakistan is nowhere in picture. Have covered this earlier. Tedious heading back. There are no modalities to be discussed as Pakistan had the opportunity to achieve all this in 1948 itself, when it chose not to.

Can you give a justification, keeping in view the UN resolution itself, why Pakistan failed to take steps at its end, conditional to which all Indian steps were to be undertaken? The commission was provided for in that very resolution. You know the provisions, have been discussed a number of times. What stopped Pakistan then? And what moral authority does Pakistan have in that today, when being uniquely in a position to resolve the issue in 1948, it itself backtracked?

Are you aware that once an instrument of accession was signed by the recognized ruler of any princely state in favor of either India or Pakistan, the same was recognized as legally binding and a part of that country as per the Indian Independence Act of 1947 (covering both dominions at the time).


http://www.legislation.gov.uk/ukpga/1947/30/pdfs/ukpga_19470030_en.pdf

See para 3(b). Am unable to upload the specific portion on iPad.



Letter of Mountbatten

"My dear Maharaja Sahib,

Your Highness' letter dated 26 October has been delivered to me by Mr. V. P. Menon. In the
special circumstances mentioned by your Highness my Government have decided to accept the
accession of Kashmir State to the Dominion of India. Consistently with their policy that in the case of any State where the issue of accession has been the subject of dispute, the question if accession
should be decided in accordance with the wishes of the people of the State, it is my Government's
wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invader the question of the State's accession should be settled by a reference to the people.

Meanwhile in response to your Highness' appeal for military aid action has been taken today to send troops of the Indian Army to Kashmir to help your own forces to defend your territory and to
protect the lives, property and honour of your people.

My Government and l note with satisfaction that your Highness has decided to invite Sheikh
Abdullah to form an interim Government to work with your Prime Minister.

With kind regards, I remain,

Yours sincerely,
October 27, 1947.
Mountbatten of Burma."

https://www.mtholyoke.edu/acad/intrel/kasmount.htm

 

[Joe Shearer]

Why would Pakistan not cooperate? It does not make any sense. Pakistan has always maintained that Kashmir issue needs to be resolved as per wishes of the people of Kashmir. Whether to want to join India or Pakistan. This has been the official stance.

I agree; it did not make sense. It does not make sense. Now what are we to make of something that they did, in 1948? Who knows what they had in mind?

This is what is truly frustrating about the behaviour of the Pakistani deep state. Even the ordinary Pakistani, even 90%, for instance, of the various Moderators and Administrators are frustrated at some of the things that have been done.

But several generations of net warriors have come - and gone - and inflicted grievous injuries on those of us immediately available close at hand for the supposed crimes of India. Foremost being our grabbing territory, ignoring the UN's censure, blocking the plebiscite and generally acting like the Emperor Akbar in a particularly bad mood.

Obviously, at this stage, we have to let go of all the difficulties of the past, and cope with the three problems that have come to stay:

1. India's legal difficulties - how to work around Article 370 for the sake of a settlement, without violation of constitutional provisions;
2. Pakistan's legal difficulties - how to deal with acquiring territory to which she has no legal title;
3. The protection of the minorities, Kashmiri Pundits already displaced, and Jammu Hindus and Ladakh Buddhists, who are terrified about their faith in case the Valley wants to join Pakistan, or even remain independent, in which case they are doomed.

 

[war&peace]

I agree; it did not make sense. It does not make sense. Now what are we to make of something that they did, in 1948? Who knows what they had in mind?

This is what is truly frustrating about the behaviour of the Pakistani deep state. Even the ordinary Pakistani, even 90%, for instance, of the various Moderators and Administrators are frustrated at some of the things that have been done.

But several generations of net warriors have come - and gone - and inflicted grievous injuries on those of us immediately available close at hand for the supposed crimes of India. Foremost being our grabbing territory, ignoring the UN's censure, blocking the plebiscite and generally acting like the Emperor Akbar in a particularly bad mood.

Obviously, at this stage, we have to let go of all the difficulties of the past, and cope with the three problems that have come to stay:

1. India's legal difficulties - how to work around Article 370 for the sake of a settlement, without violation of constitutional provisions;
2. Pakistan's legal difficulties - how to deal with acquiring territory to which she has no legal title;
3. The protection of the minorities, Kashmiri Pundits already displaced, and Jammu Hindus and Ladakh Buddhists, who are terrified about their faith in case the Valley wants to join Pakistan, or even remain independent, in which case they are doomed.

That is disturbing well net warriors are on both side and at best they can do is a net war
But during all those net wars Kashmiris are suffering and we need to do something to stop that.
There are some constitutional difficulties on both side and Idk when both governments will solve them. On our side we have a lot of corrupt politicians who are busy in their job i.e. to steal the money.
But there are some hard facts that Kashmiris want to be part of Pakistan or at least independence from India and both Pakistani and Indian media reports say the same story.

 

[Stephen Cohen]

Why is Chidamabaram saying all this about the so called " autonomy "

Only because he is in opposition and TALKING is always easy and cheap

The same Congress Government developed cold feet on reading the Report of the
the three Interlocutors -- led by Mr Dileep Padgaonkar and put it in the cold storage

Mr Chidambaram is also positioning himself as an "intellectual " who supposedly knows it all

The same UPA government did not even table the report in Parliament

Because they know it is impossible to even start on this process

It will simply pave the way for more and more demands and secessionists will
score an easy win

The people who really understand the situation are those on the ground

The sickular political class is only interested in big Photo opportunities
and hogging the limelight

They dont mind creating a problem for the future

 

[Joe Shearer]

That is disturbing well net warriors are on both side and at best they can do is a net war
But during all those net wars Kashmiris are suffering and we need to do something to stop that.
There are some constitutional difficulties on both side and Idk when both governments will solve them. On our side we have a lot of corrupt politicians who are busy in their job i.e. to steal the money.
But there are some hard facts that Kashmiris want to be part of Pakistan or at least independence from India and both Pakistani and Indian media reports say the same story.

And we will not allow that to happen because that re-introduces the communal virus into our body politic. Never mind what the Sangh Parivar says; India cannot survive except as a secular, multicultural nation. Allowing minorities to secede means reducing the country to a majority-dominated theocracy.

Think it through. It's like asking the Chinese to hold multi-party elections, simply because people want democracy. The very idea!

 

[Stephen Cohen]

India's legal difficulties - how to work around Article 370 for the sake of a settlement, without violation of constitutional provisions;

@hellfire

The so called granting of autonomy is NOT about just making changes in laws and rules

You are setting off a process ; a chain reaction ; which no one has any idea where it
will take Kashmir and the rest of the country

That is why the usually over confident Bureaucracy is very hesitant to take a call

We are venturing into unknown and dangerous territory which will just throw away all
the gains previously made
------------------------------------------------------------------------------------------------------------------------------
What is the One thing that WE DO Not want in J And K

It is the imposition of President's rule

Having elections and a state government gives India the right to talk of democracy

After you give autonomy a rouge government led by Geelani and company will
come to power and create a conflict with the Centre to PROVOKE a dismissal

And then they will be able to prove to the world that Kashmir is an occupied territory

-------------------------------------------------------------------------------------------------------------------------------
The Reason GOC of Northern Command is the real security incharge of Kashmir
is because of the AFSPA and the areas which are declared as Disturbed Areas
under AFSPA

Then there is a Thing called the Unified Command under which
Army ; CRPF ; BSF and the J and K police all come in

Naturally the GOC will lead such an unified command when AFSPA is in force
-------------------------------------------------------------------------------------------------------------------------------

@Joe Shearer @hellfire

AFSPA is needed because the Army DOES not carry BATONS

The Army is trained to shoot to kill not to do lathi charge or tear gas

That job is for the para military and the police
------------------------------------------------------------------------------------------------------------------------
@hellfire @Joe Shearer

Yesterday's Chidambaram 's Interview only exposed his own mentality

He said that The people of Kashmir LOATH the Ascendancy of BJP

So the people of India should TAKE permission from Kashmiris before Voting

 

[Hellfire]

@Stephen Cohen Give me some time to collate all the necessary documents. Roaming around earning the proverbial bread. Will get back and load the necessary documents chronologically. iPad is a damn nuisance for this.

But everything has to start with the Indian Independence Act of 1947 para 3(b) of the said act specifically. Work up that ways .. lets reach a sensible chronological order and put facts on ground.

I told you earlier also, the aim is to win the psychological war now. That is why over the past few years, there has been thrust in perception management by the IW of the army formations.

Request if you can load up things chronologically and chip in. @Joe Shearer Sir request your help. We owe it to our fellow members to set things straight. A small step in changing the overall narrative and identifying the mistakes may help in people actually understanding and appreciating the gross stupidities by all concerned, including the Kashmiris.

 

[Hellfire]

The most pertinent Para of the Indian Independence Act of 1947

(3)Nothinginthissectionshalpreventanyareabeingatany timeincludedinorexcludedfromeitherofthenewDominions, so,however,that-

(a)noareanotformingpartoftheteritoriesspecifiedin subsection(1)or,asthecasemaybe,subsection(2),of thissectionshalbeincludedineitherDominionwithout theconsentofthatDominion;and

(b)nt.areawhichformspartoftheteritoriesspecifiedin thesaidsubsection(1)or,asthecasemaybe,thesaid subsection(2),orwhichhasaftertheapointedday benincludedineitherDominion,shalbeexcluded fromthat Dominion without the consent of that Dominion.

http://www.legislation.gov.uk/ukpga/1947/30/pdfs/ukpga_19470030_en.pdf

As one can see, the subsequent Indian actions of placing terms for acceptance of the instrument of accession and assuring of plebiscite/referendum of its own accord once the armed invasion was beaten back (again as a condition of GoI) were already in contravention of the above clause. Now the question, as any logical mind will indeed raise, is why do it?


The Letter to Lord Mountbatten


My Dear Lord Mountbatten,

I have to inform your Excellency that a grave emergency has arisen in my State and request immediate assistance of your Government.

As your Excellency is aware the State of Jammu and Kashmir has not acceded to the Dominion of India or to Pakistan. Geographically my State is contiguous to both the Dominions. It has vital economical and cultural links with both of them. Besides my State has a common boundary with the Soviet Republic and China. In their external relations the Dominions of India and Pakistan cannot ignore this fact.

I wanted to take time to decide to which Dominion I should accede, or whether it is not in the best interests of both the Dominions and my State to stand independent, of course with friendly and cordial relations with both.

I accordingly approached the Dominions of India and Pakistan to enter into Standstill Agreement with my State. The Pakistan Government accepted this Agreement. The Dominion of India desired further discussions with representatives of my Government. I could not arrange this in view of the developments indicated below. In fact the Pakistan Government are operating Post and Telegraph system inside the State.

Though we have got a Standstill Agreement with the Pakistan Government that Government permitted steady and increasing strangulation of supplies like food, salt and petrol to my State.

Afridis, soldiers in plain clothes, and desperadoes with modern weapons have been allowed to infilter into the State at first in Poonch and then in Sialkot and finally in mass area adjoining Hazara District on the Ramkot side. The result has been that the limited number of troops at the disposal of the State had to be dispersed and thus had to face the enemy at the several points simultaneously, that it has become difficult to stop the wanton destruction of life and property and looting. The Mahora powerhouse which supplies the electric current to the whole of Srinagar has been burnt. The number of women who have been kidnapped and raped makes my heart bleed. The wild forces thus let loose on the State are marching on with the aim of capturing Srinagar, the summer Capital of my Government, as first step to over-running the whole State.

The mass infiltration of tribesmen drawn from distant areas of the North-West Frontier coming regularly in motor trucks using Mansehra-Muzaffarabad Road and fully armed with up-to-date weapons cannot possibly be done without the knowledge of the Provisional Government of the North-West Frontier Province and the Government of Pakistan. In spite of repeated requests made by my Government no attempt has been made to check these raiders or stop them from coming into my State. The Pakistan Radio even put out a story that a Provisional Government had been set up in Kashmir. The people of my State both the Muslims and non-Muslims generally have taken no part at all.

With the conditions obtaining at present in my State and the great emergency of the situation as it exists, I have no option but to ask for help from the Indian Dominion. Naturally they cannot send the help asked for by me without my State acceding to the Dominion of India. I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your Government. The other alternative is to leave my State and my people to free-booters. On this basis no civilized Government can exist or be maintained. This alternative I will never allow to happen as long as I am Ruler of the State and I have life to defend my country.

I am also to inform your Excellency's Government that it is my intention at once to set up an interim Government and ask Sheikh Abdullah to carry the responsibilities in this emergency with my Prime Minister.

If my State has to be saved immediate assistance must be available at Srinagar. Mr. Menon is fully aware of the situation and he will explain to you, if further explanation is needed.

In haste and with kind regards,


Your sincerely,
Hari Singh

The Palace, Jammu
26th October, 1947

http://www.jammu-kashmir.com/documents/harisingh47.html

 

[Stephen Cohen]

The most pertinent Para of the Indian Independence Act of 1947

(3)Nothinginthissectionshalpreventanyareabeingatany timeincludedinorexcludedfromeitherofthenewDominions, so,however,that-

(a)noareanotformingpartoftheteritoriesspecifiedin subsection(1)or,asthecasemaybe,subsection(2),of thissectionshalbeincludedineitherDominionwithout theconsentofthatDominion;and

(b)nt.areawhichformspartoftheteritoriesspecifiedin thesaidsubsection(1)or,asthecasemaybe,thesaid subsection(2),orwhichhasaftertheapointedday benincludedineitherDominion,shalbeexcluded fromthat Dominion without the consent of that Dominion.

http://www.legislation.gov.uk/ukpga/1947/30/pdfs/ukpga_19470030_en.pdf

As one can see, the subsequent Indian actions of placing terms for acceptance of the instrument of accession and assuring of plebiscite/referendum of its own accord once the armed invasion was beaten back (again as a condition of GoI) were already in contravention of the above clause. Now the question, as any logical mind will indeed raise, is why do it?


The Letter to Lord Mountbatten


My Dear Lord Mountbatten,

I have to inform your Excellency that a grave emergency has arisen in my State and request immediate assistance of your Government.

As your Excellency is aware the State of Jammu and Kashmir has not acceded to the Dominion of India or to Pakistan. Geographically my State is contiguous to both the Dominions. It has vital economical and cultural links with both of them. Besides my State has a common boundary with the Soviet Republic and China. In their external relations the Dominions of India and Pakistan cannot ignore this fact.

I wanted to take time to decide to which Dominion I should accede, or whether it is not in the best interests of both the Dominions and my State to stand independent, of course with friendly and cordial relations with both.

I accordingly approached the Dominions of India and Pakistan to enter into Standstill Agreement with my State. The Pakistan Government accepted this Agreement. The Dominion of India desired further discussions with representatives of my Government. I could not arrange this in view of the developments indicated below. In fact the Pakistan Government are operating Post and Telegraph system inside the State.

Though we have got a Standstill Agreement with the Pakistan Government that Government permitted steady and increasing strangulation of supplies like food, salt and petrol to my State.

Afridis, soldiers in plain clothes, and desperadoes with modern weapons have been allowed to infilter into the State at first in Poonch and then in Sialkot and finally in mass area adjoining Hazara District on the Ramkot side. The result has been that the limited number of troops at the disposal of the State had to be dispersed and thus had to face the enemy at the several points simultaneously, that it has become difficult to stop the wanton destruction of life and property and looting. The Mahora powerhouse which supplies the electric current to the whole of Srinagar has been burnt. The number of women who have been kidnapped and raped makes my heart bleed. The wild forces thus let loose on the State are marching on with the aim of capturing Srinagar, the summer Capital of my Government, as first step to over-running the whole State.

The mass infiltration of tribesmen drawn from distant areas of the North-West Frontier coming regularly in motor trucks using Mansehra-Muzaffarabad Road and fully armed with up-to-date weapons cannot possibly be done without the knowledge of the Provisional Government of the North-West Frontier Province and the Government of Pakistan. In spite of repeated requests made by my Government no attempt has been made to check these raiders or stop them from coming into my State. The Pakistan Radio even put out a story that a Provisional Government had been set up in Kashmir. The people of my State both the Muslims and non-Muslims generally have taken no part at all.

With the conditions obtaining at present in my State and the great emergency of the situation as it exists, I have no option but to ask for help from the Indian Dominion. Naturally they cannot send the help asked for by me without my State acceding to the Dominion of India. I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your Government. The other alternative is to leave my State and my people to free-booters. On this basis no civilized Government can exist or be maintained. This alternative I will never allow to happen as long as I am Ruler of the State and I have life to defend my country.

I am also to inform your Excellency's Government that it is my intention at once to set up an interim Government and ask Sheikh Abdullah to carry the responsibilities in this emergency with my Prime Minister.

If my State has to be saved immediate assistance must be available at Srinagar. Mr. Menon is fully aware of the situation and he will explain to you, if further explanation is needed.

In haste and with kind regards,


Your sincerely,
Hari Singh

The Palace, Jammu
26th October, 1947

http://www.jammu-kashmir.com/documents/harisingh47.html

The Indian independence Act gave way to Instrument of accession which THEN
led to Article 370 of Indian Constitution

When a New law or a New constitution is enacted the previous laws do nt matter

Our interest is only in the instrument of accession to prove that the accession was valid

After that what we do is our business --namely Article 370

 

[Nilgiri]

This was the option around which two generations have broken our heads. We can amend the Constitution to say that what we said is no longer true, or that we have changed our minds. We cannot amend the Constitution to say for the J&K state constituent assembly what it could have said. We cannot amend the Constitution to make the obligation to them disappear.

That is my reading.

Let us see what the really great authorities - Noorani has said his piece, let's ask Jethmalani and Sorabjee - have to say about it.

As far I understand the only clauses that article 368 cannot apply to is the "basic framework" of the Indian constitution pertaining to article 368 itself and more importantly the articles on "fundamental rights". But the exact details as to the basic framework that cannot be amended by article 368 has still been left vague. I think it needs a supreme court ruling at some point as to what the basic framework constitutes. It would be a good opportunity to adjudicate on article 370's potential amendment once and for all and either put it de facto and/or de jure into the basic framework (on account of the reasons you have stated) or clearly specify it is not and thus open to amendment by way of article 368.

I think we owe it to the citizens of India for this to be sorted out clearly rather than left pending indefinitely.

Is it correct to say the J&K high court is below the Supreme court of India with regards to final legislative verdict in issues concerning Kashmir (from Kashmir's perspective) or does this only apply to regular judicial appeals? i.e can the high court of J&K interpret/reject such final legislation differently from what has been set out by the supreme court?

 

[Stephen Cohen]

The Indian independence Act was enacted by UK parliament

After Indian Parliament and Indian Constitution came into being
UK laws will Not apply to India
------------------------------------------------------------------------------------------------------------------------------
@Nilgiri @hellfire @Joe Shearer


http://www.lawctopus.com/academike/constitutional-intergration-jammu-kashmir/

 

[Joe Shearer]

As far I understand the only clauses that article 368 cannot apply to is the "basic framework" of the Indian constitution pertaining to article 368 itself and more importantly the articles on "fundamental rights". But the exact details as to the basic framework that cannot be amended by article 368 has still been left vague. I think it needs a supreme court ruling at some point as to what the basic framework constitutes. It would be a good opportunity to adjudicate on article 370's potential amendment once and for all and either put it de facto and/or de jure into the basic framework (on account of the reasons you have stated) or clearly specify it is not and thus open to amendment by way of article 368.

I think we owe it to the citizens of India for this to be sorted out clearly rather than left pending indefinitely.

Is it correct to say the J&K high court is below the Supreme court of India with regards to final legislative verdict in issues concerning Kashmir (from Kashmir's perspective) or does this only apply to regular judicial appeals? i.e can the high court of J&K interpret/reject such final legislation differently from what has been set out by the supreme court?

I am not sure about the last point. The first point is a Gordian knot.

 

[Hellfire]

@Stephen Cohen I quoted the act under which India and Pakistan as two separate and distinct dominions were enacted by the British at the time in order to legitimize the whole act of signing of the act of accession at of Oct 1947, to which India and Pakistan were still bound as per law as it was only subsequently that India enacted the laws as you have enunciated above.

Don't hurry the thread. We have to identify and nail the mistakes as and when made. That is why, hold the horses, let us analyze why India undertook to act in a manner which was contrary to the laid down provisions. Mind you, India was dominion still being formed and only in 1975 has India evolved as a nation truly.

Will be posting more relevant extracts, add on if something is being missed. Am trying to get us all to go into a chronology of the chaos and the mistakes as also instances of lost opportunities in the whole issue till date. Will tag and indulge in plagiarism (with due credits and tags) on work already posted and analyses. Slow and painful, but we seem to be differing in our perceptions