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Research Title:- “What is Occupied
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territory? To what extend India is
justified to bring legislative changes
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in Kashmir”
Group 3:Alsyeda Muqadas Azhar, Rayyan Adil,
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Mohsin Ali, Abuzar Ali

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Supervisor: Ms. Naheed Akhtar

National Defence University, Islamabad

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 Research Title:- “What is Occupied territory? To what extend India is
justified to bring legislative changes in Kashmir”

Introduction:

Jammu and Kashmir known as “paradise” on earth, was considered as the largest among the three
princely states until the partition of India. Till 1947, India was under British colonial rule. British India
was divided into two territories in August 1947 known as Pakistan and India. Jammu and Kashmir’s
territory is comprised of vast majority of mountainous and its physiography is closely related to the
structural parts of western Himalayas.

In this article, we will discuss about the history of sub-continent, after that analysis of Article 35A and
370 is made and also explore the legal perspective of abrogation of laws from Indian Constitution
regarding Kashmir territory.

History of Partition of Sub-continent:

After the creation of Pakistan and India on 14th and 15th August 1947 respectively, demographic
distribution of territory was the new agenda for which Mountbatten Plan came under consideration.

According to Mountbatten Plan of 1947, it had two main objectives:-

1. Subcontinent was divided into two sates i.e., India and Pakistan, to create a border and
distribute states under two nation theory.
2. To decide the future of princely state whether these territories come under the dominance
of India or Pakistan.

The British government and Muslim League decided that the area in which Muslim population is more
would go to the zone of Pakistan. So, after hearing all these things Mountbatten plan was created on the
year 1947. Mountbatten plan was enacted by British parliament passed the Indian parliament act of
1947. According to which India and Pakistan named two dominance state was going to be created. But
in this plan the biggest problem was created in Punjab in Bengal provinces because in these areas Hindu
and Muslim population were almost equally distributed so to create the boundaries in these areas two
boundary Commission was appointed. One Commission for Bengal and one for Punjab, both the
boundary Commission head was Sir Cyril Radcliffe who reached India on 18th August 1947. He had given
the time of five weeks to create the boundaries in both the areas and Sir Cyril Radcliffe did not visit India
before that having limited expertise and limited time resulted into the unequal distribution of the
provinces. In addition to that he was not aware about Indian cultural differences or existing religious
tensions of India so on 14 August 1947 Pakistan was created and on 15 August 1947 India came into
being but demographically the partition took place on 17 August 1947, and these two boundaries were
named as Radcliff lines. This was 1st objective of Mountbatten plan or Indian independence act for
creating India and Pakistan country.
Now coming to the second objective of the Mountbatten plan the princely states have the option that
they can join India or Pakistan or declare themselves as independent state. Hence, these Princely states
were to be integrated in India was a big task. To integrate these princely states into India was a big task
and for this purpose people British and Indian leaders like Sardar Vallabhbhai Pate, V.P Menon,
Jawaharlal Nehru and Lord Mountbatten joined hands in this regard. All the techniques had been used
so that princely state can be integrated in India had a talk with all the maharajas and negotiation had
been done. They used ‘carrot and stick’ negotiation approach like privy purse strategy where they
bargained that they would provide a fund after joining India for the maintenance and expenditure of the
princely states This was the incentive or carrot. They use Stick for the princely states that would not
agree to come into the territory of India. Totally Pakistan India had 565 princely states at the time of
partition, out of which India has 552 princely state and Pakistan has 13 princely states. From this 552
states India had signed the instrument of accession with 549 States and they became the part of India.
Instrument of accession is like a treaty between Indian government and Maharaja of princely state
containing certain conditions and, on that basis, those princely states would integrate with India. For
instance, India offered Privy Purse to princely state and on that behalf princely state joined India, and
they agree to adopt Indian constitution fully. Finally, 549 states joined instrument of accession fully.
Three states which were not able to be integrated in India were Junagarh, Hyderabad and Jammu and
Kashmir. In Junagarh, the Nazem was Muslim but most of the population was Hindu in majority, the
Nazem had to go to Pakistan in the population had to become the part of India, so that referendum was
made in Junagarh. Referendum is a voting system in which people decide they want to become the part
of India or Pakistan So the referendum happened in Junagarh from that it was decided that Junagarh
would become part of India. In Hyderabad, the case was little different the Nazem of Hyderabad neither
wanted to join Pakistan or India and at that time Hyderabad was the richest and the biggest state
amongst all princely state, the Nazem wanted to establish Hyderabad as an independent state. But the
Hyderabad forces were not able to control the lawlessness spread during the separation time. So, to
help Hyderabad the Indian government mainly Sardar Vallabhbhai Patel launched ‘Operation Polo’. In
Operation Polo, the neighboring state was sending the police for assisting them. Due to this, on 19 th
September 1948, Indian government signed the instrument of accession with Nazem of Hyderabad,
eventually integrated Hyderabad into India.

Now the last remaining princely state was Kashmir, here Maharaja Hari Singh was ruling the state and
the case of Kashmir was mix of Junagarh and Hyderabad, Maharaja was Hindu and majority of people
living in the state were Kashmiris so all were thinking that if Referendum would occur Kashmir would be
a part of Pakistan, but initially Maharaja Hari Singh was claiming for independent state and when he
thought Muslim of J&K would join hands with Pakistan, and Pakistani Army on 12th October 1947
decided to help his Muslim brothers and sisters living in Jammu and Kashmir, tried to remove Maharaja
from his post as he was against the referendum, so the scared Maharaja Hari Singh decided to take
assistance from Indian Government, where Indian Government integrated and signed the Instrument of
accession with Maharaja on 26th Oct, 1947. After that Indian Government send his army in J&K and
removed Pakistan forces from there with a war. Resultantly, on 1st Jan 1949, both the countries signed
the ‘agreement of ceasefire’ which created Line of Control (LOC), according to which the territory which
was occupied by the respective army would be considered the part of that country. Hence, 2/3rd part of
Jammu and Kashmir was occupied with India and 1/3rd was part of Pakistan. After signing instrument of
accession with Indian Government, the new leader of Jammu and Kashmir was Sheikh Abdullah

After independence when India was making the constitution for its citizen, Jammu and Kashmir was
already enjoying their rights and protection under their own legislation, and from those rights; one was
the ‘right to property’. The instrument of accession also contained certain conditions on which bases
integration was happened.

Research Questions:

Now in this article, we will explore that:-

 When Kashmir agreement happened? What was the Instrument of Accession that was signed
that time? Why that IOA is so different? How Article 35A and Article 370 came into existence?

 After discussing this, the paper will also investigate that to what extend India is justified in
bringing legislative changes in Kashmir?

Main Argument:-

On 26th Oct 1947, when Maha Raja Hari Singh signed Instrument of Accession with Indian Government,
this was not accepted by Muhammad Ali Jinnah at all and meanwhile Sardar Vallabhbhai Patel believed
to go for war with Pakistan but Jawaharlal Nehru was not in mood of more violence, so he took this
problem to UN. United Nation did not consider this issue so big and declared Jammu and Kashmir as a
“disputed territory”. Further, UN suggested to resolve this disputed territory through ‘Plebiscite’; where
people of Jammu and Kashmir would decide by voting either they wanted to be the part of India or
Pakistan, whatever majority would agree that would happened but there was precondition to do
plebiscite i.e.; India and Pakistan both have to remove their armies from the occupied part of Jammu
and Kashmir.

Pakistan was agreed to do so as they knew that majority of people were Muslims and they would come
to our part, whereas India didn’t agree to that condition, as a result of which no plebiscite have been
occurred in J&K till now and still it is considered as occupied territory under the International Law.

According to the International Law an occupied territory is defined as:

“Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be
exercised”.

Origin and Analysis of Article 370 and 35A:-

Sheikh Abdullah who was representing Muslim majority population of Jammu and Kashmir met with
Jawaharlal Nehru where they discussed IOA, its conditions which were incorporated in India constitution
to create Article 370 for the people of Jammu and Kashmir so that they would feel safe and secure like
other citizens of Indian Government.
Article 370 is part of part XXI of the Constitution; this part provides temporary, transitional and special
provisions to 12 states; out of which one is Jammu and Kashmir.

The article 370 is as follows:-

“Notwithstanding anything in this Constitution:

(a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to-
(i) those matters in the Union List and the Concurrent List which, in consultation with the
Government of the State, are declared by the President to correspond to matters specified in
the Instrument of Accession governing the accession of the State to the Dominion of India as the
matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State,
the President may by order specify.”

Article 370 provides Special Status to Jammu & Kashmir, states –

1. It gives Special Status to the state J&K.

2. It restricts State’s legislature power over four heads:

• Defence
• Communication
• External Affairs
• Currency

If central has to take certain steps except that four departments, they will require assent of
state legislature of J&K.

Article 35A:

a) “Parliament shall have, and the Legislature of a State shall not have, power to make laws-
with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32,
article 33 and article 34 may be provided for by law made by Parliament; and

 (ii) for prescribing punishment for those acts which are declared to be offences under this Part;
and Parliament shall, as soon as may be after the commencement of this Constitution, make
laws for prescribing punishment for the acts referred to in sub-clause (ii); (b) any law in force
immediately before the commencement of this Constitution in the territory of India with respect
to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for
any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any
adaptations and modifications that may be made therein under article 372, continue in force
until altered or repealed or amended by Parliament. Explanation.-In this article, the expression
"law in force" has the same meaning as in article 372.”
 The of Article 35A states –

a.) Give the rights of defining the term ‘Permanent Residents’ to the State Legislature. 
Any person who is a state subject on May 14, 1954;
Or who has been resident of the State for 10 years and has lawfully acquired the
immovable property.

b.) Conferring of other special privileges to the residents of J&K and restricted to non
residents, such as:

•Employment under State Government;

•Acquisition of immovable property;

•Settlement in State;

•Right to Scholarship or any other rights as conferred by State Government.

J&K formulated its Constitution in November 1956.

Significance of these Articles:-

These articles possess specific importance as it gives special demographic protection to the Muslim
majority state in India. Now under BJP government, the extremist and nationalist abrogate article 35A so
that they can open their door for the settlement in J&K like Israel did occupation on the Palestine
territory.

Conclusion: Is India justified to bring legislative changes in Kashmir?

Generally Parliament has power to make laws regarding topics listed on Central and Concurrent List for
every state but Article 370 says that power of Parliament regarding State of Jammu and Kashmir is
restricted and Parliament can make laws on only those matters of Concurrent and Central Lists which
were decided while Instrument of Accessation. These were defence, communication and external
affairs, so parliament is allowed to make laws on these 31 matters related to defense, communication
and external affairs. If parliament wants to make further law, they have to take permission from State
Government of Jammu and Kashmir. Normally, whenever Parliament makes any law like laws regarding
Right to Information or GST, they automatically applies to other States, but this is not the case with
Jammu and Kashmir. In case of J&K, Parliament will pass laws, that laws will go to State Assembly, which
will ratify the laws made Parliament, if state assemblies ratifies then such law will be applicable to
Jammu and Kashmir. This extra process of ratification or the restrictions to the power of Parliament
applies through Article 370. Now is it possible to remove Article 370 legally? This answer lies in the
article 370 clause 3, itself which says that if Jammu and Kashmir Constituent Assembly agrees to remove
and abrogate Article 370 or any other Law, and after this if President through Public Notification says
that Article 370 shall be removed then Article 370 will cease to exist. Now as Constituent Assembly of
Jammu and Kashmir was dissolved in 1957, so it is difficult for Indian Government to cease this article or
any other law.

Bibliography:-

Ahmed, I. (2010). India-Pakistan Relations Post-Mumbai Terrorist Attacks. Institute of South Asian
Studies, National University of Singapore , 1-7.

Ali, C. M. (1973). The Emergence of Pakistan. Lahore: Reserach Society of Pakistan.

Annual Report Summaries. (1999, June 16). Retrieved March 12, 2020, from Amnesty International:
https://www.amnesty.org/download/Documents/148000/pol100031999en.pdf

Ashok Kumar And Others vs President Of India And Others , SWP No. 1290 OF 2014 (Jammu & Kashmir
High Court October 09, 2015).

Chowdhary, R. (2014). Modi‟s roadmap for India‟s Kashmir and Pakistan policies. East Asia Forum , 1-7

Nisar, D. T. (2019). Kashmir and the abrogation of Article 370: Can peace be possible, or stalemate
continue to hamper India and Pakistan relations in future? SADF FOCUS , 45, 1-11.

Noorani, A. G. (2014). Article 370: A Constitutional History of Jammu and Kashmir. Karachi: Oxford
University Press.