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S. Gurumurthy
Courtesy : VIGIL, Madras - 33.
Jagarana Prakashana
Bangalore
Article - 370
We are at a critical period in our history. Time has come for us
to have a relook at ourselves. Even as we do that, some of the
vital provisions of the constitution of this country and its
political and constitutional experience in the post- independence
period particularly that which related to special status to
different groups or regroups need to be subjected to public audit.
The Chief Mischief - the pioneering one- in the constitution which
legitimised the flood gate of special status demands and even
quoted by Punjab terrorists and Tamil chauvinists to advance their
anti-national cause is Article 370 of the constitution of India.
When Article 370 was introduced, of the whole of the Constituent
Assembly debates which is contained in over 13 volumes, the
discussion on this issue lasted for a little more than an hour., it
was exhausted in just five pages.
MUSLIM MEMBER'S PROTEST.
Most of it came from a very celebrated civil servant from
Tamilnadu, Sri Gopalaswamy Iyengar, who explained the Government
point of view. Everyone accepted the official line except a Muslim
member who protested against special treatment being given to Jammu
& Kashmir (J&K). This is the substance of the debate of the
Constituent Assembly on this vital provision in the constitution.
What is Article 370? What is its constitutional and political
implication?
Before we go into it, we have to recall some history. Prior to
independence this country which included Pakistan at that time, was
broadly divided into two segments - British India & Indian States.
British India was under the direct domination of the English Crown
and the Indian States under different kings. The British
government gave up their policy of annexation thereby halting the
expansion of British India and began fostering the Indian States as
kingdoms under the British sovereignty. This was also a ploy to
divide the country in quest for its freedom. To put it in
political terms, the Indian kings were virtually the agents of the
British king in India. J&K was one of the states and out of the
states at that time, that was the largest in area; it was larger
than Gwalior, Baroda and Mysore. It was like the other states not
under direct British domination. It was under the rule of the
local king subject to the imperial power of the British kingdom.
TREATY OF AMRITSAR.
The creation of J&K as a state dates back to what is called the
Treaty of Amritsar (1846) under which the British government handed
over the part called J&K including Gilgit, to one Ghulab Singh who
was claiming to be the descendant of Maharaja Ranjit Singh. This
transfer was for a consideration of Rs. 1 crore which was later
reduced to Rs. 75.00 lacs. Maharaja Ranjit Singh captured J&K from
the Mughals in 1819 and he and his descendants ruled this country
till 1846. It was in 1846 and under the Treaty of Amritsar that
J&K was carved out as a state subject to the British domain. It
was ruled by subsequently one Randhir Singh who was the son of
Ghulab Singh and then by Ghulab Singh's son, Pratap Singh and
afterwards by Maharaja Had Singh. As is well known Dr Karan Singh
is the son of Hari Singh.
DEVELOPMENT OF INDIAN STATES.
The constitutional history of India starting from 1920 tell us
about the development of the Indian states. The political
upheavals during the twenties and the British response led to
Government of India Act' of 1935 which ensured a degree of self
governance for India and which was the prelude of the Constitution
of India. The government of India Act 193.3 regulated the
relationship between British India and the Crown. The Indian
States were outside the Government of India Act. The dialogue for
federation of India between the crown and the Indian states through
their kings became an unending process starting from late twenties
and remaining inconclusive till the outbreak of the Second World
War. After the war, political changes in Britain led to the
decision to grant freedom to India.
But what was India then? India consisted of British India under
direct rule of the Crown and the Indian States under the kings.
This is where what appeared to be an irreconcilable problem arose.
The problem was common for both India and Pakistan. The British
failed to integrate British India with the Indian States. There are
various interpretations. 'They did not want to do it' was one
interpretation 'They could not' was another. History will keep on
debating what is the truth. But, the fact remains, when in June
1946, British government decided to make a final announcement that
they were leaving India, the Crown said we are leaving India in the
state in which it stood. That is, the British part of India would
be handed over to the Government to be installed in India and the
States which fell outside the British domain would be banded over
to the respective kings. This was called the lapse of paramountcy
meaning the evaporation of British sovereignty over the Indian
States and the consequent devolution of sovereignty and paramountcy
on the Indian kings over the Indian States. So the British decided
to leave India in a fragmented condition.
SARDAR VALLABHAI PATEL.
Between 1947 and 1950, but for the one individual, Sardar Vallabhai
Patel, the Indian States and the British India could never have
been cemented into one nation. History can be written and
rewritten. But, the one fact cannot be ignored - that the wisdom of
one man, the purpose and determination that he showed, alone was
responsible for the integration of the India states into a nation.
In this process, not only was the integration of the Indian States
with India a political and constitutional problem, there was also
the added problem of whether a particular state should merge with
India or Pakistan or remain independent.
Generally the Muslim majority states merged with Pakistan and Hindu
majority states with India. Many Indian kings showed great
patriotic spirit in helping the process of integration. But some
resisted; particularly Hydrabad, Junagarh and Jammu & Kashmir.
There were two outstanding examples. One was Junagarh which had
80% Hindu population under a Muslim king and the other was J&K
which had 70% Muslim population ruled by a Hindu king. The ruler of
Junagarh actually signed accession with Pakistan. And Pakistan
accepted this accession and regarded Junagarh, a Hindu majority
state, as part of the Islamic nation. This led to virtual state of
war between Pakistan & India which was resolved because of the
wisdom of the Dewan of Junagarh, a statesman who though he was also
a Muslim, finally said that Junagarh had to remain with India only
and it could not go to Pakistan. That is how the Junagarh dispute
was settled, inspite of the fact that the king acceded to Pakistan.
POLITICAL DEVELOPMENTS.
Close by came the Kashmir issue. Maharaja Hari Singh was a
confused individual - toying with the idea of an independent
Kashmir and negotiating with both India & Pakistan. On India's
behalf, Lord Mountbatton, who was the first Governor General of
India, clearly told Hari Singh on the authority of both Sardar
Patel as well as Jawaharlal Nehru that the Maharaja was at liberty
to have accession with either India or Pakistan, but, could not
remain independent.
Between August and October, Hari Singh was negotiating with India
as well as Pakistan on the terms of accession and where he would be
recognised as the sole representative of the state. However,
Pakistan soon lost patience and tried to annexe the state by force.
The indecisiveness of the Maharaja led to Pakistan becoming a party
to the dispute. However, although the Maharaja was the
constitutional head, the political initiative was in the hands of
Sheikh Abdulla.
The political developments in the state starting from 1932, had put
Sheikh in a commanding position. He first started a J&K Muslim
Conference which, in 1939, he converted into National Conference.
He broke away from Muslim League and developed a kind of Kashmir
National Movement. So, there was the king, who was not in command
of the popular sentiment, as the head of the state and there was
Sheikh Abdulla who was virtually the only popular leader of J&K
particularly Kashmir, at the time. So, the man who had the power
to sign accession with either India or Pakistan was not in command
of the popular sentiment. This was the first contradiction in J&K.
SHEIKH - AS A RULER.
The Sheikh favoured a situation where he could work out a
constitutional relationship with India, in which he would be in a
predominant position and would be the ruler. His sole aim was to
dethrone the Maharaja. This political rivalry and confusion also
encouraged Pakistan to invade J&K. Pakistan actually began
invading Kashmir under the garb of tribal rebellion on 22nd October
1947. Within the next four days the entire arrangement between
India and J&K was worked out. Maharaja Hari Singh threw up his
hands and sent an urgent message to Mountbatton stating that he was
willing to accede to India on the same terms on which all other
princely states acceded to India, without any condition whatsoever.
When this request was received, the government of India, at that
time politically directed by Nehru and Patel, was not wholly in
favour of this accession.
Historically this is important. It was not that the government of
India was hankering to have J&K accede to it. But, Mountbatton
told Maharaja Hari Singh as well as Sheikh Abdulla, on the
authority of Nehru and Patel, that Kashmir could choose to be
either with India or Pakistan. This was the stand that the Indian
Government took at that time.
When Maharaja Hari Singh sent the S.O.S. pleading, "Please send
your army and protect us, we are being subjected to arson, rape and
destruction", the Government of India still wanted to know what the
only popular leader in J&K had in mind. Sheikh Abdulla who was in
Delhi at that time also supported Hari Singh on his decision to
accede to India. He sent a hand-written note to Jawaharlal Nehru
agreeing to the Maharaja's proposal. So, it is not merely the
legal sovereign, Hari Singh, who was asking for accession, the
Sheikh as the popular leader of Kashmir also wanted accession with
India. This is on the records of Government of India. This is on
the records of the United Nations also.
So, the request for accession was a joint effort by the political
sovereign as well as the legal sovereign. Both of them frantically
appealed to the government of India. Following this frantic appeal
there was an emergency meeting on 25th October, presided over not
by Jawaharlal Nehru or Vallabhai Patel, but, by Mountbatton, in
which it was agreed that Pakistan had committed aggression under
the guise of tribals and it was indulging in vandalism and it was
the duty of the Union of India, to protect the state having
received the request for accession from both the political and
legal sovereigns of J&K.
MATTER TAKEN TO U.N. - A HISTORICAL BLUNDER.
It was in these circumstances that, on the 25th October the famous
'Operation Rescue Kashmir ' began. The Indian army drove out the
invaders and was set to recapture the areas under Pakistani
domination, including what is presently called 'Azad Kashmir'. But,
on 31st December, 1947 Jawaharlal Nehru committed what was later
regarded as a diplomatic and political blunder in taking the
Kashmir issue unilaterally to the United Nations. Pakistan was on
the verge of a military collapse against India and yet Pakistan was
unwilling to take the matter to U.N. because the popular opinion in
J&K at that time was in favour of accession with India. And yet,
we took the matter to U.N.
AUDITING OUR HISTORY.
I am not blaming anyone. We are only auditing our history - to
learn and unlearn from our mistakes. The leadership at that time
was subjected to the greatest mental torture. The national crises
was not confined only to Kashmir at that time. Anti-national
forces were at work everywhere. For instance, the Travancore
state, so ably assisted by C.P. Ramaswamy Iyer, was working out a
deal with Hydrabad Nizam as well as Pakistan to remain independent!
So the national leadership had to encounter such a massive problem
that, if an error was committed at that time no motives should be
attributed to them. May be, Jawaharlal Nehru erred. But, the fact
remains that the fatal reference of Kashmir problem to the U.N. was
made by India. It hangs around our neck even today. This was the
position in December 1947. Eventually there was a ceasefire and
the war ended on 1st January 1948.
BIRTH OF ARTICLE 370.
Article 370 and the constitutional implications of the accessions
of Kashmir is the subject matter for the present. But, we cannot
understand the constitutional relationship of J&K with the Union of
India unless we know of the historical background of the problem.
Now, we can go into how Article 370 was brought into the
constitution.
A year after the ceasefire, in January 1949, the Constituent
Assembly co-opted of India constitution. Soon after the accession,
the Maharaja ceased to be of relevance in hard political terms. So,
he retired nominating his young son Dr Karan Singh as his
successor. This made Sheikh Abdulla virtually the sole
representative of the state. Behind the curtain of the Constituent
Assembly, after hard bargaining by both sides, political
arrangement was worked out with Sheikh Abdulla.
The result of this arrangement was Article 370. Article 370 as
enacted into the constitution was justified as the only mechanism
to fasten & integrate Kashmir with India. But the crucial question
we have to ask after 40 years of experiment with this mechanism is:
how has this mechanism worked? Whether it has worked to integrate
Kashmir with India which was the intention at that time. This is
the question which we have to address ourselves to.
FOUR POINTS.
Article 370, shorn of all its legal complications, lays down a four
point criteria for the relationship between the Union of India and
the State of J&K.
Firstly, Jammu & Kashmir state is one of the states of India.
Secondly, None of the provisions of the Constitution of India
including fundamental rights shall apply to the state unless
assented to by the constituent Assembly of the state to be formed.
Thirdly, No law, passed by the Parliament even in respect of
matters with reference to which only the Parliament can pass laws
under the constitution, shall apply to Kashmir unless assented to
by the government of the state.
Fourthly, The President may by order specify that the provisions of
Article 370 may cease to apply to the state of J&K but no such
order shall be issued without the approval of the constituent
Assembly, of the State.
The only positive aspect of Article 370 is that it proclaims that
Kashmir is an inalienable part of India. Article 1 of the
Constitution states that India shall be a union of states as listed
in the First Schedule of constitution wherein Kashmir is listed as
one of the states. This is the only provision in the constitution
which, under Article 370, applies to J&K. All other provisions of
the constitution are barred from application. This is the effect
of Article 370 as enacted on 26th January 1950. That is, we enacted
a constitution for the whole of India in which only one Article was
held applicable to J&K. The other provisions of the constitution
would apply only if assented to in certain parts, and in
consultation with in certain other parts, with the Constituent
Assembly or the government of J&K. Thus the constitution as
enacted rendered itself inapplicable to one of the states J&K.
Consequently Article 370 made the constitution itself mute and
impotent so far as Kashmir was concerned.
Was this devastating provision which denied constitutional
authority to the provisions of the constitution itself was part of
the understanding with Kashmir at the time of accession itself? The
answer seems to be clear 'No'. The instrument of accession which
J&K signed with India was the same as the instrument of accession
signed by other states. Was a special status agreed upon or
insisted after the accession, behind the scenes and between the
Sheikh and the then Prime Minister? No one knows what transpired.
But obviously a political settlement was worked out between them
and that became Article 370.
J&K CONSTITUTION.
Subsequently, in 1951, a Constituent Assembly for J&K was elected
and the Assembly framed a constitution. Under the J&K
Constitution, the state had a separate Prime Minister, a separate
President a separate flag and a separate constitution. Not even
the fundamental rights in the Indian Constitution were to be
applicable to the people of J&K. With kind of constitutional
sovereignty could J&K be merely regarded as a state under India or
would it be more appropriate to call it an associate sovereignty?
Some of us may be surprised to know that the title of chapter 21
under which Article 370 appears, as originally enacted was
"Temporary and Transitional Provision". Jawaharlal Nehru who
negotiated Article 370 said it would be gradually eroded. Mr.
Gopalswamy Iyengar who argued the case for Article 370 in the
Constituent Assembly said as yet Kashmir was not ripe for full
integration with India. "But," he said "in course of time, it will
be integrated and it will be on par with the rest of the states".
In 1963, the Home Minister of India declared in Parliament that
Article 370 would eventually evaporate. It is now decades since
then. Article 370 has not been eroded, as the then Prime Minister
said or evaporated as the Home Minister declared. Kashmir has not
been fully integrated even after four decades as assured by Mr.
Gopalswamy Iyengar. On the contrary, instead of Article 376
gradually eroding, the state of Kashmir has gradually drifted away
from India. So, the very provision that was intended to appease
the separatist mentality of the then Kashmir leadership and to
bring them round into the mainstream has failed to be the trick,
the task assigned to it. Now the question is whether Article 370
which was intended to help the integration Kashmir with the rest of
India has not worked to sustain the separatist mentality of the
Kashmir leadership by creating a vested interest in such separatist
provision.
TEMPORARY, TRANSITIONAL?
See how the tune of the national leadership has changed. The then
P.M. was unhappy and apologetic about enacting article 370 into the
constitution. Most political parties including the Congress merely
tolerated this provision. But now, every political party in India
barring one or two, declares that Article 370 is an inalienable
part of the constitution. The constitution says it is 'temporary,
transitional'. Every political party, the Congress to the DMK, and
from the P.M. to M.Karunanidhi say 'it is a permanent part of the
constitution'. The apology for Article 370 has now become
allegiance to Article 370. The guilt over the article has turned
into loyalty to it. What was just tolerated then as a political
expediency has now turned into a symbol of secularism. Those who
support Article 370 are only "secular" and those who oppose,
"Communal". What was admittedly illegitimate has become legitimate.
Is Article 370 inalienable? Was it intended that way? Certainly
not. The very heading of Article 370 makes it a temporary
provision. On the contrary the inalienable provisions of the
constitution, constitutionally and judicially held inalienable,
have been mutilated and obliterated with impunity. Our
constitution has been amended over 60 times. And the most important
amendments hit Part-III of the constitution which contains the
fundamental rights which the original constitution had declared as
'unamendable' by legislature. Most of the fundamental rights have
been altered, amended abridged and even deleted. Mrs. Gandhi, in
fact, got amended the very provision in the constitution which
prohibited the amendment of the constitution, and rendered the
entire constitution amendable. So, every part of the constitution
can be made to stand on its head. But Article 370 which was
designated as "temporary and transitional" in the original
constitution, which, the Prime Minister of India said, would be
"eroded", which Mr.Gopalswamy Iyengar said was only "intermediary
feature" and which the Home Minister of India said would
"evaporate" is now regarded as unamendable and as the only
inalienable part of the constitution.
Let us now consider whether Article 370 should be temporary and
transitional or a permanent feature. If the leaderships of the
country which brought this Article into the constitution, had
succeeded in seeing that, on this basis, J&K would be integrated
with the rest of the country and nobody would question the
accession of J&K with India, Article 370 regardless of any other
consideration may be justified. If under Article 370 J&K had fully
integrated the country, the questions whether Article 370 is
legitimate, whether it is politically wise or whether it is
constitutionally justified may be irrelevant. But has Article 370
succeeded in integrating the people of J&K with India? It is "out
of India". It has to be "won back". Everyone who justifies this
Article also knows that Kashmir has to be won back with this
mentality.
SURRENDER TO COMMUNALISM
But what is the fall out of Article 370? It has become the
illustration for further concessions and appeasement. It has led
to eight more articles (Article 370A to 370G) of similar nature
conferring special privileges and concessions on particular region
or stare. An unending quest for special status has been set off by
this temporary provision. The Punjab terrorists couch their
separatism in their demand for a similar provision. Article 370
has legitimised, constitutionalised and institutionalised devisive
thinking. Article 370 symbolises the political disease of
appeasement which afflicted and national leadership in the earlier
part of the century from which it has not been able to extricate
itself even after decades of disastrous experience. My complaint
against Article 370 is that it is a document of surrender to
communalism and yet not successful in appeasing it.
Is the article so sacred that it cannot be touched at all? Those
who are familiar with the history of integration of the Indian
states would know that our Government entered into solemn
agreements with the respective kings who patriotically volunteered
to the accession with the government of India. In return for their
nationalistic response our constitution makers granted them certain
privileges and a certain monitary compensation labelled "privy
purse". Sardar Patel describes this treaty as "Sacrosanct" and any
breach of it would be a great breach of faith and trust. The
Treaty was enacted into the constitution of India. That great man,
but for whom India would never have been integrated, held the privy
purse and princely privileges as sacred and inviolable. When,
these sacred and morally sanctified agreements were thrown into the
sea by Mrs. Indira Gandhi, every politician in India hailed it as
historical and egalitarian. So what the Sardar warned as breach of
faith became egalitarian overnight. Inviolable moral commitment can
be violated, but, these very gentlemen say Article 370 is
inviolable. why?
If Kashmir would not have integrated with India except on the basis
of Article 370 we should have asked Kashmir to go to hell. It was
Maharaja Hari Singh and the Sheikh who sought protection from India
against the invading Pakistan army. This should have only helped
us to have our way. And yet we allowed the Sheikh to have his way.
In International politics, it never happens and it should not
happen with India. Some apologists say that Article 370 is
intended to preserve the local culture and demographic character of
Kashmir from being overrun by colonisation from the rest of India
which in plain terms means that Kashmir should have a Muslim
majority always and the Muslims in Kashmir should not become
out-numbered by people migrating from the rest of India into
Kashmir. In forty years, eight districts of Assam have
demographically become non-Assamese. They have been turned into
non-Assamese not by way of colonisation from India, but, by
infiltration from Bangladesh. When the people in Assam revolted and
wanted protection against infiltration, that movement was
denigrated by the very protagonists of Article 370 as "communal".
For eight years the agitation was branded as communal. So the
question today is not whether Article 370 is legitimate or
illegitimate or whether it is politically right or wrong or is
constitutionally justified or not. The question is whether Article
370 has delivered what it was supposed to, namely, integrate the
Sheikhs, Shahs, Muftis of Kashmir with the Pundits in Kashmir and
the other Hindus outside Kashmir. The answer is a clear 'no'. On
the contrary the Article has made the Muslims in Kashmir more
separatist by constantly reminding them about their special status.
GATEWAY OF INDIA
A topic like this is a complicated issue. It calls for intensive
discussion. It concerns the integrity of this country. We have to
study die geography and the history of this country. Shri V.P.
Menon wrote that the country that does not remember its geography
and history does so at its own peril. The importance of J&K was
emphasised by him in these words. When he went on behalf of Sardar
Patel to meet Maharaja Hari Singh on the 25th October, 1947, Hari
Singh wanted accession. Shri V.P. Menon reported that to the
Government of India and recommended that we should accept the offer
of Hari Singh. Sardar Patel supported him, but Jawaharlal Nehru
opposed. But V.P. Menon said it was through J & K that Mohammed of
Ghazni invaded India 17 times. It was the gateway of India. Those
who control that stretch of land controlled this vast country.
So it is not a mere piece of land; it is not a place where we spend
our time during summers. It is much more important in view of
security and integrity of the country and for our existence as a
nation.
Do our present rulers or those who oppose them realise the
implications of what V.P.Menon said ? So Kashmir is the gate way to
India. It has a great security value to this country. The
accession of Kashmir with India was brought about and maintained by
Indian soldiers in 1947, 1965 and 1971. It is time that we no more
persisted in repeating the lies of the past and began calling a
spade a spade.
The first step is to recall and undo the Chief Mischief - Article
370 of the constitution.
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