The rape of Kashmir and Article 370

The recent demand for abrogation of Article 370 by BJP and RSS has sparked fresh controversy about Kashmir, the land of blood and failed justice. The Article, which grants special status to Jammu and Kashmir within the Indian republic, was referred to by Minister of state in the PMO, Jitendra Singh, who declared that the Centre had started the process for repealing it. To understand the full impact of this declaration and the consequences of the abrogation would necessitate a recall of the brief and murky past of the Article.

On 26th October, 1947, Hari Singh Bahadur, Maharaja of Jammu and Kashmir signed the Instrument of Accession (IOA).The accession of Kashmir to India was accepted as provisional, pending a plebiscite or a direct vote of all the members of the electorate of Kashmir. Though the IOA did not mention the conditionality of accession, the White Paper clearly specified it, giving rise to the conflict. To assure the people of a fair accession, Jawaharlal Nehru, standing upon Laal Chowk in Kashmir, guaranteed a plebiscite. In a telegram dated October 28, 1947, Nehru stated, “We have always right from the beginning accepted the idea of the Kashmir people deciding their fate by referendum or plebiscite. Ultimately, the final decision of settlement, which must come, has first of all to be made basically by the people of Kashmir.”


In a message to Jinnah on  October 31, 1947, Nehru once again repeated his promise, “First of all, I would like to remind you of the fateful days of 1947 when I came to Srinagar and gave the solemn assurance that the people of India would stand by Kashmir in her struggle.On that assurance, I shook Sheikh Abdullah’s hand before the vast multitude that had gathered there. I want to repeat that the Government of India will stand by that pledge, whatever happens. That pledge itself stated that it is for the people of Kashmir to decide their fate without external interference. That assurance also remains and will continue.”

However, this plebiscite remained pending and in late 1947, Sheikh Abdullah, the then-appointed Prime Minister of Jammu & Kashmir, was asked to finalize the text of Article 370, as deputed by Maharaja Hari Singh and Jawaharlal Nehru. Following this, Nehru invited IAS officer and erstwhile minister, Gopalaswamy Ayyangar to consult on the Kashmir portfolio and plead the case of Article 370 in the newly-formed Indian Constituent Assembly. In a statement to the Constituent Assembly, Nehru once again said, “…The people of Kashmir would decide the question of accession. It is open to them to accede to either Dominion ( Indian or Pakistan Dominion) then.”

Then, in early 1948, Nehru approached the United Nations for a resolution of the Kashmir Conflict. The United Nations Commission for India and Pakistan (UNCIP) was set up and the UN Security Council passed Resolution 47 on 21 April 1948 which instructed the Commission to help the governments of India and Pakistan restore peace and order to the region and prepare for a plebiscite to decide the fate of Kashmir. On 5th January 1949, the Commission published its resolution which once again stated that the accession of Jammu & Kashmir will be decided through a free and impartial plebiscite. Both Pakistan and India accepted the resolution but failed to arrive at a truce agreement due to the demiliarisation clause. On January 1, 1949, a ceasefire was agreed, with the Line of Control as the de facto border.

On 17 October 1949, the Indian Constituent Assembly adopted Article 370 of the Constitution which ensured a special status and internal autonomy for Jammu and Kashmir, with Indian jurisdiction in Kashmir limited to the three areas agreed in the IOA, namely, defence, foreign affairs and communications. With the first post-independence elections coming up in 1950, the UN passed a resolution that declared that the elections did not substitute a plebiscite as there was no option of choosing between Pakistan and India.

In response, the governments of India and Pakistan agree to appoint a Plebiscite Administrator by the end of April 1954. Nehru, in a hasty attempt to disguise his false promise, continued to assert, “I want to stress that it is only the people of Kashmir who can decide the future of Kashmir. It is not that we have merely said that to the United Nations and to the people of Kashmir, it is our conviction and one that is borne out by the policy that we have pursued not only in Kashmir but everywhere. Though these five years (1947-1952) have meant a lot of trouble and expense and in spite of all we have done we would willingly leave Kashmir if it was made clear to us that the people of Kashmir wanted us to go. However sad we may feel about leaving, we are not going to stay against the wishes of the people. We are not going to impose ourselves on them at the point of bayonet. I started with the presumption that it is for the people of Kashmir to decide their own future. We will not compel them. In that sense, the people of Kashmir are sovereign.”

However, on 30 October 1956, the State Constituent Assembly adopted a constitution for the state that declared it an integral part of the Indian Union. On 24 January 1957, UN passed another resolution stating that such actions would not constitute a final disposition of the State. Protests broke out in Kashmir in December 1963 against Articles 356 and 357 of the Indian Constitution being extended to the state, which granted the Centre power to assume the government of the State and exercise its legislative powers. In 1990, Kashmir Valley and areas close to the Line of Control were declared ‘disturbed’ under AFSPA when armed insurgency began in the Valley. Under AFSPA, an authorised officer in a disturbed area has the power to open fire at any individual even if it results in death to prevent (a) terrorist acts aimed at overthrowing the government, striking terror in the people, or affecting the harmony of different sections of the people or (b) activities which disrupt the sovereignty of India, or cause insult to the national flag, anthem or India’s Constitution.

AFSPA, described by UN Commissioner for Human Rights as a “dated and colonial-era law that breach contemporary international human rights standards”, became the tool of dominion for the people of Kashmir. The provisional nature of the IOA lay forgotten, as was the notion of an impartial vote to let the people of Kashmir decide their fate. If the BJP government chooses to scrap Article 370 with regards to Kashmir, and with it, the special status that was granted to it, the people of Kashmir will be rendered powerless to decide their fate. The plebiscite, promised by Nehru to the Kashmiris in 1947 and sanctioned by the UN, is a pledge that remains unfulfilled despite it being the only solution to Kashmir’s brief and bloody history. Through casualties of wars, and countless human rights violations by the Indian Army, such as the mass rape of 53 women by the Indian Army in Kunan Poshpora, India has continued to strong-arm Kashmiris into voicelessness. This has led to the fostering of internal conflict and further loss of human lives through ethnic cleansing by Islamist militants and Hindu fundamentalist organizations alike.

The Narendra Modi-led BJP government, in July 2014, ruled out changes in AFSPA in Jammu and Kashmir and favoured its continuation in the present form in the state. However, in a complete reversal of opinion on December 1, 2014, BJP stated, “We believe the Armed Forces Special Powers Act will not be required if we come to power in the state. We will create such an atmosphere that everything will move peacefully and according to law. There will be no need of the stringent law.”  On Article 370 of the Constitution, BJP said they want open discussions, “We are coming before public with open mind.” Despite BJP’s long history of communalisation of politics in India, they denied allegations of promoting religious unrest in the area.


The recent re-appeal for the abolition of Article 370 by BJP, if successful, would deny the people of Jammu & Kashmir the right to a free and impartial plebiscite, take away the autonomy of the State and incorporate it into the Indian Republic by force and without consent. This legislative rape orchestrated by the BJP government, if successful, will once again give rise to communal clashes, leading to another bloodbath in Kashmir’s brief history. There is a desperate need for open dialogue focusing, firstly, on the retainment of this Article to prevent India from forcefully seizing Dominion status, and secondly, to discuss the means to bring about a free and impartial plebiscite that has been due to the people of Kashmir since 1947.


Manisha is a freelance journalist and the editor of Eyezine.

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