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Article 370- An emotive Issue

Author: Anil Maheshwari
Date: March 10, 2015
URL: http://hvk.org/specialarticles/issue/issue.html

Article 370 of the Constitution of India remains an emotive issue for the separatists in Jammu & Kashmir State and the Hindu population in the rest of India. This special provision gives special powers to the erstwhile princely state of Jammu & Kashmir exclusively but the same concession was not extended to 500 odd rulers of the States and principalities who too had signed the Instrument of Accession to India. 

Over the years, the privileges have been overridden by various constitutional orders issued by the president of India with the concurrence of Jammu & Kashmir State Government. Haseeb Drabu, an economist and now the Finance Minister in the Mufti Government has described the “Article 370 now just a husk; the seed has been long taken out.” Out of the total number of 395 articles of the Indian Constitution, 260 have been applied to the J&K Constitution. The remaining 135 are identical to the Indian Constitution. So there are no real privile­ges or protections. In other words, Article 370, even though it is there, has been made irrelevant.

The larger issue is the autonomy, not only to the Jammu & Kashmir State but all the states in the country, in true adherence to the federalism. Autonomy is not a dirty word. Keeping the aspirational mode of the youth in the country, it has become a necessity. Narendra Modi, as the chief minister of Gujarat, in his Republic day message, wrote, “A country such as ours cannot survive without a vibrant and functional federal structure. Sitting in New Delhi, the Centre may not always be able to do justice to the potential and needs of various states.”  Modi has been lamenting the fact that the “Sarkaria Commission, which called for consultation between the states and the Centre on the concurrent list, hasn’t seen the light of day”.

The enactment of the Article 370 makes an interesting reading. Hari Singh, the then Maharaja of Jammu & Kashmir signed the prescribed Instrument of Accession on October 26, 1947. The legality of the accession was sealed by India’s acceptance next day. What has made the Jammu & Kashmir’s Instrument of Accession absolutely special and unique is that it is the only one around which the State chose to mould and build the signatory State’s legal relations with the emerging Republic of India. Though all other Indian States joining the Dominion of India signed an identical Instrument of Accession, none of them chose to live by it. A large number of Indian States were represented in the Indian Constituent Assembly and though it was envisaged that the States would have separate Constitutions for their internal administration, the idea of a separate Constitution for each State was forsaken as a “Legacy from the Ruler’s polity which could have no place in a democratic set-up.”

Thus, by November 1949, the Rulers and Raj Pramukhs had issued Proclamations making the Constitution of India operative in their States. Jammu & Kashmir chose to act differently. It insisted that, as provided by clause 7 of the Instrument of Accession, it was not committed to accept the future Constitution of India. Instead, it decided to have its own separate State Constitution. This was made clear by the State’s four representatives including Sheikh Abdullah nominated to the Indian Constituent Assembly in June 1949 by the Yuvraj of Jammu & Kashmir on the advice of his Council of Ministers of his State’s Interim Government led by Sheikh Abdullah. They told the Indian Constituent Assembly that the Jammu & Kashmir State’s association with India would be based ‘only’ on the terms of the Accession, that the State’s government did not accept the Constitution of India as a Constitution for the State, and that, despite accession, the State was still to be governed by its old Constitution Act, 1939. This stand of Jammu & Kashmir raised a major legal hurdle before the new nation.

India, merging the erstwhile princely regimes and British India, became a difficult task to attain. This was because the Government of India had given an undertaking that the people of Jammu & Kashmir could frame their own constitution and because the Government of India could not force the State to accept the Constitution of India, for that would violate the agreed terms of association of the State with India.

Conspicuous in this delicate situation was the apparent  reluctance of ‘iron man’ Sardar Patel to intercede and persuade Sheikh Abdullah to let his State be, like other princely States, an integral part of the proposed Indian Constitution. Perhaps the Sardar was aware that Nehru was unwilling to thwart the latter’s ambition to be the Prime Minister of the new, autonomous Jammu & Kashmir. Perhaps, the Sardar saw the impasse as an inevitable outcome of his unstated apprehension of the problems Jammu & Kashmir’s accession would bring — remember, he had earlier told Mountbatten that if the Jammu & Kashmir Maharaja chose to accede to Pakistan, India would not take it amiss. It came to pass therefore that while the Constitution of India was to become applicable not only to the former provinces of British India but also to other princely States as full-fledged constituent units of the Union, the Indian Constituent Assembly was compelled to make a special provision to cover the particular and exceptional case of Jammu & Kashmir. Article 370 was sown then. The final Article 370 was Article 306-A of the draft Constitution of India It was a Bill for a special constitutional provision for Jammu & Kashmir and was moved in India’s Constituent Assembly by Gopalaswami Ayyangar, minister without portfolio in Nehru’s government. According to Constituent Assembly Debates (India) Vol. X No.10,

Ayyangar made the following arguments in seeking support for his Bill on Article 306-A : “The State (Jammu & Kashmir) is a unit of a federal State namely the Dominion of India. This Dominion is getting transferred into a Republic . . . The Jammu & Kashmir State, therefore, has to become a unit of the new Republic of India. Till India became a Republic, the relationship of all the States with the Government of India was based on the Instrument of Accession. In the case of other Indian States, the Instruments of Accession will be a thing of the past in the new Constitution; the States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a document of accession for becoming units of the Republic. It would not be so in the case of Kashmir since that particular State is not yet ripe for this kind of integration due to special conditions prevailing in Kashmir. In the first place there has been a war going on within the limits of Jammu and Kashmir State — part of the State is still in the hands of the enemies, and in the second place, the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity will be given to the people of the State to decide for themselves the nature of their Constitution.” Considering that Jammu & Kashmir representatives had insisted in the Constituent Assembly that their State’s relationship with India would be based ‘only’ on the terms of the Instrument of Accession and considering that the debate regarding Jammu & Kashmir had reached a stalemate in the United Nations, it was decided to have an interim arrangement in the Constitution of India regarding Jammu & Kashmir.

Sardar Patel, the then Minister of States in India, declared in the Constituent Assembly, “In view of the special problem with which the Jammu and Kashmir Government is faced, we have made special provisions for the continuance of the State with the Union on the existing basis.” [Constituent Assembly Debates (India), Vol. X, No. 5].

Accordingly, Draft Article 306-A was discussed in the Constituent Assembly and thereafter formally added to the Constitution of India as Article 370. The modern generation, familiar with the frequent heated exchanges over Article 370, may be surprised to learn that the records of the Constituent Assembly Debates do not show any acrimonious discussion on Draft Article 306-A. Thus, Mahavir Tyagi had two amendments but did not choose to move them. In the debate, only one member, Maulana Hasrat Mohani of U.P. spoke. While “not opposed to all the concessions being granted to my friend Sheikh Abdullah,” his objection was, “why make this discrimination about this ruler?” “If you grant all these concessions to the Maharaja of Kashmir, you should give all these and more concessions to the Baroda ruler” he said. He was told that the Kashmir case was different and that was that.

But it is erroneous to believe that Draft Article 306-A was all smooth sailing. The resentment to it, and it was considerable, came during the discussion among Congress members before its introduction in the Constituent Assembly. The whole tale was narrated in an article by L. K. Advani published in ‘The Indian Express’ of 17th February 1992. The following excerpts from that article tell a unique story: “Before leaving the country for a visit abroad, Pandit Nehru finalised the draft provisions relating to Jammu and Kashmir with Sheikh Mohammad Abdullah and entrusted Golpalaswami Ayyangar the task of piloting these provisions through the Constituent Assembly. Ayyangar spelt out his proposals in the Congress Parliamentary Party. His presentation provoked a storm of angry protests from all sides and Ayyangar found himself a lone defender with Maulana Azad an ineffective supporter. In the (Congress) party, there was a strong body of opinion that looked askance at any suggestion of discrimination between Jammu & Kashmir State and other States as members of the future Indian Union, and it was not prepared to go beyond certain limits in making the special provision of Jammu & Kashmir.” Sardar Patel, who heard the proposals only in the above Congress Parliamentary Party meeting, was fully in accord with the above discordant opinion. But he did not indicate his mind because “Gopalaswami had acted under Panditji’s advice. How could I have let him down in the absence of his Chief? ” Dismayed by the rough reception he had to face at the Congress Party meeting, Ayyangar rushed to Sardar Patel later in the evening and appealed to him to come to his rescue. Patel heard him out and then lapsed into silence. Later, Patel asked the Congress Party Chief Whip to convene a Party meeting to discuss the matter. That meeting was stormier than the earlier one. Opposition was forcefully and even militantly expressed. It was left to the Sardar to plead that because of the international complications, a provisional approach alone could be made. The Congress Party reluctantly fell in line. Article 306-A was to be allowed to go through by Patel against his better judgment and because of his belief that the future would depend on the strength and guts of the Indian Government.

Even Dr. B. R. Ambedkar, proclaimed as the architect of the Indian Constitution, was apparently opposed to Article 306- A. This has been revealed by Professor Balraj Madhok who had been intimately associated with Jammu & Kashmir affairs at the time of invasion of tribals in 1947. In his interview published in the Deepavali Special issue of ‘Organiser’ November 14, 2004, Madhok states as follows: “Nehru sent Abdullah to Dr. Ambedkar to explain to him the position and draft an appropriate Article for the Constitution. Dr. Ambedkar himself told me that after hearing Abdullah patiently, he told him “Mr. Abdullah, you want that India should defend Kashmir, India should develop Kashmir and Kashmiris should have equal rights as the citizens of India, but you don’t want India and any citizen of India to have any rights in Kashmir. I am the Law minister of India. I cannot betray the interest of my country.” It was then that Nehru asked Ayyangar to draft what was numbered Article 306-A.

Article 370 was conceived as a temporary arrangement, with hopes of a full integration in time to come.

Source Material:

1. The Constitution of Jammu & Kashmir by Dr.(Justice) A.S. Anand

2. The Truth about Article 370 by Arvind Lavakare

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Anil Maheshwari has authored “Crescent over Kashmir: Politics of Mullaism”

Note: An earlier version was first published in theindianrepublic.com



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