Chasing article 370

The people were to rule, not a foreign or indigenous monarch. This is reflected in the Constitution which begins by taking its authority from, “We the people of India”. And Article 370 of that Constitution raises the fundamental issue of whether territory should get priority over people.

Continuing differences over Article 370 (originally numbered 306-A) of the Indian Constitution represent much more than disagreement over the autonomy to be enjoyed by the State of Jammu and Kashmir. From the day the Article was drafted in October 1949, it became the point of collision of sharply opposing viewpoints on whether the new India, would be kept together by a centralised authority, as in the past, or by the consent of its peoples.

During the struggle for independence, national leaders were pledged to secure democratic governance and a federal structure responsive to the ethnic and cultural diversity of the country. The people were to rule, not a foreign or indigenous monarch. This is reflected in the Constitution which begins by taking its authority from, “We the people of India”. The most eloquent expression of this view came from prime minister Jawaharlal Nehru in a speech in the Lok Sabha on 7 August 1952, justifying the special status given to Jammu and Kashmir but going further in defining the relationship between Central authority and outlying areas in a democratic polity. His words merit recall, though he himself was not always able to resist opposing pressures. He said:

“So while the accession [of Jammu and Kashmir] was complete in law and in fact, the other fact that has nothing to do with the law remains, namely our pledge to the people of Kashmir—if you like to the people of the world—that this matter could be affirmed or cancelled by the people of Kashmir according to their wishes. We do not wish to win people against their will with the help of armed force; and if the people of Kashmir wish to part company with us, they may go their way and we shall go ours. We want no forced marriages, no forced unions.”

But a powerful section of the ruling Congress party, led by the formidable deputy prime minister and minister for home affairs and (former princely) states, Sardar Vallabhbhai Patel, believed that a country of India’s size, history and Complexity required to be held together by adequate centralised power and authority, and force if necessary. Concessions to ethnic or regional sentiment were seen as injurious to national unity, paving the way to secession and break-up, as experienced so often in history. They saw themselves as inheritors of British colonial and Moghul imperial tradition, when the right to rule emanated from the monarch, not the people.

The smooth manner in which governmental power was transferred from British to Indian hands on 15 August 1947, with no change in the administrative structure, reinforced this approach. It came naturally to the senior bureaucracy, which retained its colonial powers and privileges. The need for a strong Centre was accentuated by the horrors of Partition and the desire to ensure against a repetition; though the Congress leadership had itself accepted the right of Muslim-majority areas of British India to secede and form Pakistan.

The Constituent Assembly debates, and the Constitution itself, reflect this polarity. While few, if any, foreign constitutions promise the array of rights to citizens specified in the Indian Constitution, the case of empowerment of the people at the grassroots was overlooked. Instead, it validated the system of top-down administration laid down by the British rulers in the Government of India Act of 1935. The institution of centrally-nominated provincial governors was retained and the controversial Article 356 gave them the authority to place their states under Central rule, a power that came to be used frequently to negate federal autonomy.

The controversy over Article 370 brought underlying differences into the open. When reluctantly joining the Indian Union in October 1947 to secure military help to defend Srinagar against irregular Pathan lashkars let in by Pakistan, Maharaja Hari Singh had limited accession to three subjects: defence, foreign affairs and communications. His state retained authority over everything else. The Maharaja, who had nurtured visions of independence when the British quit, was reluctant to cede more authority than he had to. Sheikh Mohammed Abdullah, the first popular head of government, was equally anxious to retain maximum autonomy. He needed constitutional buffers to provide space for the Muslim-majority state, with its unique cultural and ethnic traditions, from being engulfed in Hindu-majority India. His party, the National Conference, had gained support with a manifesto promising radical land reform and other measures that could be impeded by conservative provisions about right to property in the Indian Constitution.

On its part, New Delhi needed to offer anything short of independence to enable the Sheikh to justify to his people the decision to join India, and join in fighting Pakistan. To win over the Kashmiris despite the religious appeal of Pakistan was a major victory for Indian secularism scripted by Jawaharlal Nehru. When Partition riots were still raging in North India and Indian troops joined National Conference workers in resisting the Pathan lashkars encircling Srinagar, Mahatma Gandhi told a prayer meeting: “It is on Kashmir soil that Islam and Hinduism are being weighed now…My sole hope and prayer is that Kashmir would become a beacon light in this benighted Subcontinent.” But the price of allowing Jammu and Kashmir to fashion its own domestic constitution and resist New Delhi’s right to take the government under Article 356 seemed too high for the conservatives, headed by Sardar Patel.

Differences with Nehru on Kashmir had already led to Patel’s offer to resign from the government in December 1947. He resented the prime minister’s decision to remove Kashmir from his charge and place it under a separate minister for Kashmir Affairs, Gopalaswami Ayyangar, and formally objected when a decision by Ayyangar was not referred to him. Nehru replied: “The present issue related to Kashmir. This raises all matters of connected issues—international, military and others which are beyond the competence of the State’s Ministry as such… All this was done at my instance, and I do not propose to abdicate my functions in regard to matters for which I consider myself responsible.” Patel promptly tendered his resignation. It was not pressed, and within days the two leaders swore to work together as they wept over Gandhi’s assassinated tody. But differences remained.

Patel was scandalised when the draft of Article 370 was placed before him by Gopalaswami Ayyangar. He wrote: “You can yourself Realise the anomaly of the State becoming part of India and at the same time not recognising any of these (constitutional) provisions,” adding resentfully, “if you feel it is the right thing to do, you can go ahead with it.” He was also unhappy with moves by the Abdullah Government to take over land without adequate compensation. Later, he complained that the Government of India was abrogating its duties in Kashmir.

On the other hand, Sheikh Abdullah was upset by the Article being described as a “temporary provision”. He tried to give it permanency by convoking the Jammu and Kashmir Constituent Assembly in 1950, where he emphasised the special treatment given to the State in the Indian Constitution. Apart from defence, Foreign Affairs and Communications, he declared, “We have complete freedom to frame our constitution in the manner we like… while safeguarding our autonomy to the fullest extent according to the best traditions and genius of our people…” Jammu and Kashmir went on to elect its own Sadr-e-Riyasat, thus denying New Delhi the power to appoint the Head of State and use him to topple the State Government. Article 356 did not apply to the state until the latter’s rights were eroded in subsequent years.

Sardar Patel saw no reason for changes in the administrative system. He believed in continuity and had his way as Home Minister. He was well served by the senior bureaucracy, for whom he ensured the rights and privileges they enjoyed under the British. Trained in the colonial mould, they did not share Nehru’s vision of government by consent. Whittling down the special rights enjoyed by Jammu and Kashmir under Article 370 became, and remains, a Home Ministry obsession.

The inaugural session of the Jammu and Kashmir Constituent Assembly was the high point of the autonomy enjoyed by the state under Article 370. In November 1952, the State Assembly elected Yuvraj Karan Singh, son of Maharaja Hari Singh, as Sadr-i-Riyasat, as a gesture of compromise with the old regime. It was in this capacity that Karan Singh dismissed Abdullah from office eight months later. He acted under the authority of the State Constitution; recourse to the Centre through Section 356 was not required. The Home Ministry had found another way to dismiss an obstinate state government. Abdullah was charged with disloyalty for suggesting that the Home Ministry was under the influence of the Hindu lobby, particularly vociferous in Jammu, and questioning the finality of Kashmir’s accession (which Nehru had conceded). He is also known to have discussed Kashmir’s future with US officials. The Sheikh was holidaying in Gulmarg when he was detained at midnight. The operation was organised by B.N. Mullick, director of the Home Ministry’s Intelligence Bureau. Nehru claimed ignorance of the details but went along.

Towards the end of his life, Jawaharlal Nehru seemed to realise that he had been misled by the Home Ministry into doubting Abdullah’s loyalty. He had him released and sent on a mission to Pakistan. The Sheikh was in Muzaffarabad (in Pakistan-held Kashmir) when informed of Nehru’s death on 27 May 1964. He rushed back to Delhi and wept bitterly at the cremation. But now there was no obstacle to the erosion of Jammu and Kashmir’s special status. Local leaders who owed their jobs to New Delhi cooperated in persuading the state Assembly to go along. The title and powers of the Sadr-i-Riyasat were abolished and replaced by a Centrally-appointed governor, as in other States; the title of Prime Minister accorded to the head of government was replaced by Chief Minister; officers from the Central cadre took over senior positions. Article 370 survived, but the Home Ministry’s overriding authority had reduced it to a shell.

Increasing signs of popular discontent in Kashmir as well as other parts of the country have yet to persuade India’s ruling establishment that the remedy lies in relaxing its grip; the usual response is to deploy more force. Article 370 raises the fundamental issue of whether territory should get priority over people in a democracy. For 50 years, the Home Ministry slogan of “national interest” has triumphed over Nehru’s distaste for “forced unions”.

Son of the Maharaj
Karan Singh, son of Maharaj Hari Singh, has been an on-again off-again player in Kashmir politics. For a while, he was chairman of the committee on the autonomy for Jammu and Kashmir. Back in 26 ]uly 1996, he had spoken to Ritu Sarin in The Indian Express on the subject. We reprint excerpts:

The issue of state and regional autonomy (within the state) are inseparable because if you demand more autonomy for J&K via-a-vis the Centre, you have to be prepared to give autonomy to the regions also. And the people who demand regional autonomy must also be prepared to support autonomy for the state. For the first time in 50 years a serious effort is being made to solve the dual problem: one, what is the relationship of J&K with the rest of India and, two, what is the relationship between Jammu, Kashmir and Ladakh within the state? Both these things have to be sorted out if we have to get an abiding solution.

The ‘only consistent policy the government has followed is to erode, as far as possible, the autonomy of J&K. They thought it was in national interest to erode this J&K autonomy, but the situation is much altered. Now everyone realises that the concept of all authority, all wisdom and all ability being concentrated in New Delhi and in South Block, is no longer valid. Autonomy is no longer something which is against the mainstream, though J&K is still a special case, the only state with its own constitution.

This is a good time to re-establish J&K’s autonomy, of course, within the framework of the Indian Constitution. There should be no fear on that account. After all, if we are going to restore autonomy to J&K, it is going to be in the broader national interest. If the people of the state are satisfied, it strengthens national integrity and the Government of India.

Art. 370 of the Indian Constitution
(1) Temporary provisions with respect to the State of Jammu and Kashmir. 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.
Explanation.- For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948;
(c)  the provisions of article 1 and of this article shall apply in relation to that State;
(d)  such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify :
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph
(i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
(3)  Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify :
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.