By Dr. Kanayalal Raina
Debate on Article 370 giving special status to Jammu and Kashmir has once again come to the fore after Narendra Modi-led NDA Government took the reign of power. Article 370 of the Indian constitution, which is of a temporary nature grants special status to Jammu and Kashmir. Article 370 was adopted by the Constituent Assembly as a result of various parleys. As negotiations were held on May 15 and 16, 1949 at Vallabhbhai Patel’s residence in New Delhi on Kashmir’s future set-up. Pt Nehru and Abdullah were present. Foremost among the topics were “the framing of a Constitution for the State” and “the subjects in respect of which the State should accede to the Union of India.”
Article 370 is a temporary and transient proviso in the Constitution of India, which evokes not only huge emotionalism but has also given rise to multiple confusions among the people. More often the emotional outburst, on both sides of the opinion over the article, is misplaced. As it is, the article 370 is a temporary proviso of the Constitution included in the Part XXI of the Constitution of India which itself is titled “Temporary, Transient and Special Powers”. Nor are the provisos regarding Jammu and Kashmir state anything unique here. The first article in the part is about the ‘temporary powers of the parliament (article 369) and the last one is about the temporary powers conferred on the President (article 392). While many of the provisos have been repealed over time, others have been added to it. Articles 379-391 were repealed as early as 1956 while articles 371G-I were added as late as 1986-87.
Again, J&K is not the only state to have been invested with special powers under this part of the Constitution. Articles 371A-I and articles 372-378 carry special provisos with regards to states like Maharashtra, Gujarat, Nagaland, Assam, Goa, Sikkim, Mizoram, Andhra Pradesh etc., as well as special powers for the constitutional authorities and institutions like CAG, Judges of high courts, Public service commissions, even the supreme court of India. The powers, their extent and application vary from state to state, case to case depending upon the contingent need. The articles 379-91, which were repealed by the 7th Amendment Act had outlived this need and were no longer required. An article deserves to be upon the statute book only so long as it serves a need of the nation and the people. Thereafter it is a redundancy which is better removed.
The Instrument of Accession was executed by the ruler of Jammu and Kashmir State on the terms specified by the Dominion of India. Neither the ruler of the State, Maharaja Hari Singh, nor the National Conference leaders played any role in the determination of the terms the Instrument of Accession underlined. Sheikh Mohammad Abdullah and many National Conference leaders were in jail when the transfer of power in India was accomplished by the British. Sheikh Abdullah was released from jail on 29 September 1947, about a month and a half after the British had left India.
Three days after his release, the Working Committee of the National Conference met under his presidentship and took the decision to support the accession of the State to India . The decision of the Working Committee was conveyed to Nehru by Dwarka Nath Kachroo, the Secretary General of the All India States Peoples’ Conference, who was invited to attend the Working Committee meeting of the National Conference as an observer. Kachroo was a Kashmiri Pandit who had steered the movement of the All India States Peoples’ Conference during the fateful days in 1946-1947, when partition and the transfer of power in India were on the anvil.
Interestingly, the National Conference leadership kept the decisions of the Working Committee a closely guarded secret. Within a few days after the Working Committee meeting, the National Conference leaders sent secret emissaries to Mohammad Ali Jinnah and other Muslim League leaders. While Sheikh Mohammad Abdullah held talks with a number of Muslim League leaders of the Punjab, who had come to Srinagar after his release, he sent two senior most leaders of the National Conference, Bakshi Ghulam Mohammad and Ghulam Mohammad Sadiq, to Pakistan to open talks with Muslim League leaders. Jinnah spurned the offer of reconciliation the National Conference leaders made and refused to meet the emissaries. Sadiq was still in Pakistan when Pakistan invaded the State during the early hours of 22 October 1947.
Hari Singh upturned the whole game plan of Pakistan. While the invading army spread across the State, Hari Singh sent his Prime Minister, Mehar Chand Mahajan to Delhi to seek help to save his State from the invasion and offered accession of the State with India. Sheikh Mohammad Abdullah had already reached Delhi. He made no secret of the danger the State faced and asked Nehru to lose no time in accepting the accession and ensuring the speedy dispatch of Indian troops to the State. The instrument of Accession was taken to Jammu by V.P. Menon, where it was signed by the Maharaja. Menon then rushed back to Delhi and got the Instrument accepted by Mountbatten. Next day, the air-borne troops of the Indian Army reached Srinagar when Pakistani troops in the guise of Kabballis, captured a large area of Kashmir and King failed to stop them completely. Though ultimately Jammu and Kashmir became integral part of India in due course, the captured part of Jammu and Kashmir remained occupied by Pakistan. In the light of circumstances, the then Prime Minister wanted to add a special Article; however Ambedkar did not agree to the proposal. The task was then entrusted to Gopal Iyengar, who was also Prime Minister to the Maharaja of Kashmir. For this purpose, a special Section 306 A was added by Constituent Assembly, which later came to be called Article 370 in the final draft of the Constitution. But we must understand that, all the provisions of this Article are of a temporary nature (sub-section 3) and can be ended at any point of time.
On November1,1947 ,the Gilgit Scouts, a local Muslim militia raised by the British for the defences of Gilgit Agency, revolted and declared the accession of Gilgit Agency to Pakistan. Major Brown, a British adventurer who commanded the Gilgit Scouts, hoisted the flag of Pakistan over the Agency. The Governor of Gilgit, Gansara Singh was put into prison. The State army garrison at Bunji in Askardu, mostly Muslim, followed the Gilgit Scouts, opening the way for the invading forces of Pakistan, to take hold of Baltistan.
Hari Singh laid no conditions for the accession of the State to India. The National Conference leaders were nowhere in the process of the Accession of the State, to lay down any condition for the accession of the State to India. The Congress leaders including Nehru made no promises to the National Conference leaders. The terms of the Instrument of Accession were not altered in any respect by the Viceroy. Neither Nehru, Patel, nor any other Congress leader gave any assurance to the Conference leaders about autonomy or Special Status of the State. In fact, the National Conference leaders did not make any such demands at any time, while the process of accession was in progress.
National Conference leaders demanded the exclusion of Jammu and Kashmir from the Indian constitutional organization in the summer of 1949, when the Constituent Assembly of India was in the midst of framing the Constitution of India. This was the time when foreign power intervention in Jammu and Kashmir had just begun to have its effect on the deliberations of the Security Council as well as the developments in the State. Pakistan refused to withdraw its forces from the occupied territories of the State. It has so far distorted the discourse regarding the accession of the State to suit its denial.
On the January 26, 1950, the Indian Constitution was adopted. Under it the J&K State was to be governed by Article 370 of the Indian Constitution. The special provision of Article 370 became a variant of the federal state. Article 370, in fact, provided for another model of federalism in the Indian Constitution. The Jammu and Kashmir State was recognised as an autonomous identity, based upon the Muslim majority character of its population. The representatives of the Jammu and Kashmir State participated in the deliberations of the Constituent Assembly of India, but the National Conference, which formed the Interim Government in the State, favoured the exclusion of the State from the constitutional organisation of India. Consequently special constitutional provisions were embodied in Article 370 of the Constitution of India for the State. The State was given the right to convene a separate Constituent Assembly and it was convened in 1951.
In November 1956, it completed the task of framing the Constitution of the State. This was based upon the division of political authority which was not related to the sub-national pluralities in India. The Indian federal organisation was embedded in an environment which was culturally plural and diverse, but its boundaries were clearly defined, and did not overlap with the cultural, linguistic or religious pluralism of the Indian society. The Jammu and Kashmir State alone involved a variation of the federal principles the Constitution of India envisaged, as it symbolised a federal relationship which was based upon the recognition of a special political identity of the State for its Muslim majority character.
Jawaharlal Nehru did what he needed to do to get Kashmir inside India’s map: Be it keeping Muslim majority Gurdaspur district to ensure land route or freeing Sheik Abdullah to get popular support or agreeing to limited accession (later became Article 370) with Hari Singh.
Now, after 6 decades if that Article 370, which was meant to be TEMPORARY anyway, is getting in way integrating Kashmiris with rest of India, then get rid of it! After all, it is Article 370 of our own constitution and not of any other country! It is a constitution that we wrote and amended 94 times already. Can’t we change one more time and remove that outdated Article 370?