Chapter 3:
Article 370
When Maharaja Hari Singh
acceded to India on 26 October 1947, he ceded to
the Dominion Government, powers with regard to the
subjects the other Indian States had also delegated to
the Dominion. The subjects were listed in the Schedule
attached to the Instrument of Accession and included:
- Military, air and naval
forces of the Dominion, armed forces raised or
maintained by the Dominion or maintained by the
State operating with any of the armed forces of
the Dominion, naval, military and air force works
and the administration of the Cantonments arms,
ammunition and explosives;
- External affairs,
treaties, and agreements with other countries,
extradition, admission, emigration, expulsion of
nationals, regulation of movement of the foreign
nationals, pilgrimages to places outside India and
nationalization;
- Communications, posts and
telegraphs, telephones, wireless, broadcasting and
other communications, railways, shipping and
navigation, admiralty jurisdiction, ports and port
authorities of delimitation-ports, port
quarantine, air craft and air navigation;
aerodromes, air traffic, light houses, beacons,
safety for shipping and air craft, carriage of
passengers and goods by sea and air and police
force of the railways;
- Election to the Dominion
Legislature, offences against laws with respect to
any of the matters transferred to the Dominion of
India, inquiries and statistics with regard to
these matters and the jurisdiction of all courts
with regard to these matters.
The Dominion Legislature was
empowered to legislate in regard to the subjects,
which were listed in the Schedule. Maharaja Hari Singh
assumed the obligation to ensure that due effect was
given to the instruments of the Dominion Government
applicable in the State by virtue of the Instrument of
Accession. The State was reserved powers in regard to
all the residuary subjects and the terms of the
Instrument of Accession were not to be altered by any
subsequent amendment of the Indian Independence Act,
unless such an amendment was accepted by the Ruler of
the State by a supplementary instrument. If an
agreement was made between the Governor General and
the Ruler, whereby any function in relation to the
Dominion laws in the State was vested with the Ruler,
such an agreement was to be deemed to form a part of
the Instrument of Accession.
Hari Singh did not commit
himself to accept any future Constitution of India.
However, he reserved the right to enter into
agreements with the Government of India under any
future Constitution of India. The Instrument of
Accession did not effect the continuance of the
sovereignty of the Ruler in and over the State or the
validity of any law in force in the State, save as
provided by or under the Instrument of Accession.
Express stipulations were
incorporated in the Instrument of Accession, whereby
the Dominion Legislature was precluded to make laws
authorizing compulsory acquisition of land in the
State. Hart Singh undertook to acquire land at the
request of the Dominion Government or at their expense
or if it belonged to him, transfer it to them, on
terms as were agreed between him and the Government of
India or in default of an agreement, determined by an
arbitrator to be appointed by the Chief Justice of
India.
The delegation of powers,
envisaged by the Instrument of Accession, was not an
exception, specially admitted in favor of the Jammu
and Kashmir State. It was a part of the broad
framework of constitutional arrangements which the
State's Ministry of the Government of India had
evolved and within which the Indian States were
invited to join the Indian Dominion The accession
stipulated a minimal transfer of power to the Dominion
Government and the State's Ministry offered to the
Rulers of the States to accept the accession on a
basis whereby they would be permitted to retain most
of the prerogatives they exercised under the British
Paramountcy. The major States and the Unions of the
States were reserved the right to convene separate
Constituent Assemblies to frame their own
constitutions. The Mysore scheme, which formed the
basis of the Interim Government in the Jammu and
Kashmir State, stipulated t convocation of a
Constituent Assembly in the State "to draft an
Act for the government in the State". It was
agreed upon by the Maharaja as well as the Government
of India that the Interim Government would put up
proposals for the election of a Constituent assembly
to draft a Constitution for the government of the
State. "I am agreeable to your suggestion"
Hari Singh wrote to Gopalaswami Ayangar, "that
the Interim Ministry should put up proposals for the
election of the Constituent Assembly and its
composition, but I would like to add that besides the
elected elements, I must have the right to nominate a
few persons to the Constituent Assembly out of the
minority communities and other persons having
substantial interest in the State if the result of
election does not show their adequate
representation." However, in most of the States
and the Unions of the States, the institution of
constituent assemblies did not make much progress,
mainly due to the difficult problems of federal
integration, the States presented. A standard pattern
of federal relations and the division of powers
between the States and the proposed Union of India was
still to tee evolved and in the absence of a uniform
pattern of federal relations, the process of
constitution making in the States was difficult.
Constituent Assemblies were instituted only in the
Mysore State and two States-Unions: the States Union
of Travancore-Cochin and the States-Union of
Saurashtra.
In the Jammu and Kashmir
State the process of Constitution-making was beset
with many more difficulties. The unsettled political
conditions in the State, protracted conflict with
Pakistan and the occupation of a large part of the
territory of the State by the invading armies of that
country and the disputations about the State in the
United Nations relegated the convocation of the
Constituent Assembly into background. Besides, there
was deep divergence of opinion between the Maharaja
and the Interim Government in regard to the
constitutional organization of the State as well as
the proposed federal relation with India. Hari Sing
favored the implementation of the Mysore scheme and
the inclusion o the State in federal organization of
India in accordance with the stipulation of the
Instrument of Accession. The outlook of the Conference
leadership was characterized by ambivalence and the
Conference leaders made conflicting statements, which
varied in their content and emphasis from time to time
and place to place. In effect they refused to
reorganize the validity of the political arrangements,
the Instrument of Accession envisaged. They considered
the Instrument of Accession, signed by Maharaja Hari
Singh as a "formal act" which they called
"Paper Accession" and claimed that the
actual accession of the State of India had been
accomplished by the National Conference, which they
claimed, represented the people of the State. The
Conference leaders did not accept that the Instrument
of Accession had integrated the State into the
political jurisdiction, the Indian Dominion described,
and did not recognize any obligations which emanated
from the accession of the State to India, including
the obligations which were involved in the delegation
of powers to the Dominion Government. The Conference
leaders presumed that with the lapse of the British
Paramountcy the prescriptions, which had been imposed
by the British Crown on the sovereignty of the State,
had terminated. To that extent, the Conference leaders
reiterated the stipulations of the Cabinet Mission
plan, which underlined restoration of sovereignty to
the States after the Paramountcy was withdrawn. The
Conference leaders went a step further end claimed
that since the treaties and engagements with the
Rulers of the Indian States were subsidiary to the
Paramountcy, the lapse of Paramountcy had dissolved
the basis of the Dogra rule. Consequently they
demanded the transfer of the authority of the State to
the Interim Government.
The Conference leaders
insisted that the obligations undertaken by the
Maharaja by virtue of the Instrument of Accession were
subject to their approval. Therefore, they did not
accept the accession of the State, as it was envisaged
by the State Department or the Maharaja. In fact, they
visualized the accession of the State as an
administrative arrangement, which was arrived at
between them and the Government of India, not between
the Maharaja and the Government of India.
The Conference leaders, had
before the partition of India, committed themselves to
a united India, which they had presumed would be based
upon reorganization of the British India and the
Indian States into autonomous political identities,
mainly based upon the reconciliation of communal
balances. The partition, had, however, destroyed the
basis of Indian unity the Conference leaders had
visualized and liberated the two Dominions from the
constraints any communal balances imposed upon them.
The Constituent Assembly of India had opted for a
Union of India based on the secular integration of the
people of India rather than the recognition of
communal balances and federal autonomy. In broad
terms, the Conference leaders took the position, which
underlined:
- The Jammu and Kashmir
State was a Muslim majority State and in order to
protect its Muslim identity, it could not be
brought within the political organization of
India, which was dominantly Hindu;
- The existing arrangements
between the Maharaja and the Government of India
could not form the basis of the constitutional
organization of the State or determine the future
of the State's constitutional relations with the
Dominion of India;
- The future Constitution of
the State and the constitutional relations between
the State and the future federal organization of
India would be determined by fresh agreements
between the Interim Government and the Government
of India;
- The stipulation of the
Instrument of Accession would be treated as
redundant to the extent such stipulations brought
the State within the jurisdiction of the Dominion
of India.
The National Conference leaders
pledged their support to the accession of the State,
but they refused to accept the secular integration of
the State in the federal organization of India. They
claimed that the Jammu and Kashmir State was a Muslim
majority State and as such it could be placed in the
Indian political organization only on the basis of
communal balances, as a separate and autonomous
political entity, which did not form a part of the
constitutional organization of India.
Third Alternative
The Conference leaders gave
first formal expression to their outlook immediately
after the cease-fire was accepted by India and
Pakistan; and the fighting was suspended in the State.
On 3 January 1949, two days after the cease-fire came
into force, the Interim Government sent a long
memorandum to the States Minister of the Government of
India, Sardar Patel. The memorandum was signed by all
the members of the Interim Government, including
Girdhari Lal Dogra and Sham Lal Saraf. The Interim
Government informed Patel that since the National
Conference would be required to approach the people of
the State to seek their support for India in the
impending plebiscite, it would be necessary for the
Conference to explain its stand to the people in
regard to the future constitutional organization of
the State and its position in the proposed federal
structure of India. The Conference leaders pointed out
to the States Minister that Pakistan had launched a
severe campaign against Maharaja Hari Singh on the
ground that the Maharaja represented the autocratic
Hindu rule. They affirmed that the Muslims in the
State distrusted the Maharaja and considered the Dogra
rule as the symbol of their subjection. They proposed
that in order to counteract the propaganda unleashed
by Pakistan, it would be proper to remove Maharaja
Hari Singh, banish him as well as the Maharani of the
State from India and assure the Muslims in the State
that the future of the Dogra rule would be determined
by the Constituent Assembly of the State when it was
convened.
The Conference leaders
further wrote to Patel, that Pakistan had offered the
Muslims of the State complete independence in their
internal affairs and freedom to frame a Constitution
for the government of the State without any
interference from the State of Pakistan. Pakistan, the
memorandum pointed out, had gone so far as to offer to
vest in the State Government, powers with regard to
the State army and communications, and assume only
such powers as were transferred to it in regard to
defense and foreign affairs. In order to neutralize
the effect of the offer Pakistan had made, the
Conference leaders suggested that Government of India
should also issue a declaration, which assured the
Muslims in the State that they would be ensured
internal independence, the future constitutional
organization of the State would be framed by the
Constituent Assembly of the State, the accession of
the State would be limited to three central subjects
foreign affairs, defense and communications and the
future of the State army would be determined by
agreement between the Interim Government and the
Government of India and till the agreement was reached
the control of the Spate army would be vested with the
Indian army.
The proposals made by the
Interim Government were received by the Indian leaders
with considerable consternation. Patel rejected the
Proposals outright and informed the Interim Government
that the proposals involved issues, which were beyond
the competence of the States Ministry and therefore,
could not be considered by him.
The Conference leaders were
flustered by the refusal of the States Ministry to
countenance the proposals they had made. Widespread
rumors were set afloat by the Conference cadres that
Sardar Patel supported the perpetuation of the Dogra
rule in the State alienate the Muslims of Kashmir and
pave the way for eventual cessation of the Kashmir
valley to Pakistan. Sheikh Mohammad Abdullah promptly
wrote to Nehru that in case the proposals made by the
Interim Government were not accepted, the National
Conference would not be able to secure the support of
Muslims for the accession of the State to India.
Inside the State, the Conference leaders launched a
frontal attack on the Maharaja. Among the many other
allegations they brought against him, they accused him
of interfering with the function of the Interim
Government and obstructing the political and economic
reforms, which the Conference leaders proposed to
introduce in the State.
The tirade unleashed by the
Conference leaders against the Maharaja disparaged the
Government of India. A meeting of the Indian leaders
in which Nehru, Sardar Patel, Maulana Azad and
Gopalaswamy Ayangar participated was convened in Delhi
to examine the issues the Conference leaders had
raised. A decision was reached to advise the Maharaja
to leave the State temporarily for some time and
entrust his powers to his son Yuvraj Karan Singh. It
was also decided that the future of the Dogra rule
would be determined by the Constituent Assembly of the
State after it was convened.
On 16 April 1949, Nehru had a
long meeting with Sheikh Mohammad Abdullah in which
many of the issues raised by the Conference leaders
were brought under discussion. Nehru apprised Sheikh
Mohammad Abdullah of the decisions he and his
colleagues had arrived at, with regard to the
temporary removal of the Maharaja, the Constitution of
the State and future relations between the State and
India. He also expressed his disapproval of the wild
accusations, the Conference leaders had made, against
the Maharaja.
Nehru wrote to Patel on 17th
April, and gave the States Minister a resume of his
discussions with Sheikh Mohammad Abdullah. He wrote to
Patel:
We know that Sheikh Abdullah
and some of his colleagues have been very unwise in
their public remarks and they have properly criticized
the Maharaja and asked for his removal. I had a long
talk with Abdullah last night and again pointed out to
him very forcefully how unfortunate and wrong his
attitude was in this particular matter and how it was
creating difficulties not only for us but for himself.
He repeated his old complaints, which included the
very faces that our intelligence of ricer has stated.
He promised that he would say nothing about the
Maharaja in future, but he was very unhappy about it.
Nehru wrote to Patel that it
would not be safe any further to allow the drift to
continue and proposed the removal of the Maharaja from
the State. He suggested to Patel to ask Maharaja Hari
Singh to come to Delhi and advise him to leave the
State for sometime. Nehru wrote:
The consequences are
undoubtedly bad and I feel that it is no longer safe
for us to allow matters to drift. You will remember
that we discussed this matter fully sometime ago in
your house. Gopalaswami Ayangar and others were
present. Ultimately we came to the conclusion that the
proper course to adopt was for us to take the attitude
that it was for the people of Kashmir in the
Constituent Assembly to decide about the future of the
Maharaja. But even now it was highly desirable that
the Maharaja should take some time of leave and not
remain in Kashmir. It was proposed to put this matter
to the Maharaja and to ask him to come to Delhi for
the purpose. As he has not been here since then, I
suppose nothing has been done. Meanwhile, the
situation deteriorates and an open conflict is going
on in the State between the adherents of the Maharaja
and the adherents of Sheikh Abdullah.
While the Indian leaders were
trying frantically to find a solution of the problems
in the State, and remove the Maharaja, Sheikh Mohammad
Abdullah threw a bombshell in their midst. In a press
statement, he gave to an influential English newspaper
"Scotsman" he pleaded for the independence
of the State. "Accession on either side cannot
bring peace." Abdullah stated. "We want to
live in friendship with both Dominions. Perhaps a
middle path between them, with economic cooperation
with each, will be only way of doing it. But an
independent Kashmir must be guaranteed not only by
India and Pakistan, but also by Britain, the United
States and other members of the United Nations. Sheikh
Mohammad Abdullah added further, "During the
communal riots in the Punjab after partition, we tried
in our humble way to stem the wave of fanaticism. That
is why I urged we should wait before deciding our
affiliation. I pleaded with both Dominions to help us
first to win internal emancipation before asking us to
choose! India replied by refusing to make a standstill
agreement with the Maharaja; Pakistan did so. When
during the crisis India accepted the Maharaja's
accession Pandit Nehru insisted that it was only
provisional and that people must decide later."
The Indian leaders received a
rude jolt by the statements Sheikh Mohammad Abdullah
made. Patel wrote to Gopalaswami Ayangar:
You have probably seen the
interview by Sheikh Sahib to Michael Davidson, which
was published in the Scotsman of 14 April 1949. A
vehement exponent of accession to India seems to have
been converted to an "independent Kashmir".
He wants absentee landlords, most of whom have gone to
Pakistan, to be expropriated. At the same time he has
got, according to the information brought here by
Sethi of the Agricultural Ministry, large tracts of
valuable irrigated lands vacant lest non-Muslims
should settle down on them, and this is at a time when
elsewhere we are asking for every inch of land to be
cultivated.
Ayangar asked Dwarka Nath
Kachru, personal secretary to Nehru, to visit Srinagar
and instructed him to convey to Sheikh Mohammad
Abdullah, his disapproval of the statement he had
made. Ayangar instructed Kachru to inform Abdullah
that he condemned his statesman and considered it to
be the first step in the plan to set up an independent
State of Jammu and Kashmir. Ayangar wrote to Sardar
Patel:
My attention was drawn to the
contents of this interview earlier in the day. It is a
more astonishing performance. Kachru, who is going to
Kashmir tomorrow, has just been to see me, and I am
sending a message through him to Sheikh Abdullah. I
have asked him to tell the latter that I condemn the
Sheikh's action and that I feel that what he has told
Micheal Davidson and what the latter has published
will have the most serious and mischievous
consequences both in India and abroad. I have asked
him to inform the Sheikh that, reading between the
lines, I suspect a plan, the first step of which is
this blessing by the Premier of Kashmir of the idea of
an independent Kashmir and this public expression of
his conviction that accession to India will not bring
peace, and the first step of which may well be perhaps
one of the greatest betrayals in history.
It was, indeed, the greatest
betrayal in history and later events proved that. As
the scope of the Security Council intervention in the
dispute widened, the National Conference rapidly draw
closer to the idea of independence.
Sheikh Mohammad Abdullah
treated Kachru with scant respect and told him that he
had never meant all that he had said in his press
statement and that he had done some "loud
thinking". Ayangar had instructed Kachru to
advise Sheikh Mohammad Abdullah to contradict the
press statement he had given. When Kachru asked Sheikh
Mohammad Abdullah to recant his statement, the latter
refused to do so.
Maharaja's Removal
Patel, who had already
invited Maharaja Hari Singh to come to Delhi, sent a
fresh communication to him, advising him to come to
Delhi without any delay. "I hope" Patel
cabled to the Maharaja, "Your Highness received
message sent by Shanker on my behalf by telegram and
through your assistant private secretary about
necessity of coming as early as possible. I am sorry
to note that there had been no response from Your
Highness so far. Matters which I propose to discuss
with you admit of no delay and I should therefore be
grateful if you come here as soon as possible."
Hari Singh hurried down to
Delhi and met Patel on 29 April 1949. Maharani Tara
Devi was also present. Patel disclosed to the Maharaja
that Sheikh Mohammad Abdullah was insisting upon his
addiction. He told the Maharaja that though the
Government of India was not prepared to accept his
addiction, they would still like him to leave the
State for some time temporarily and appoint the Yuvraj,
the Regent of the State in his absence Patel told Hari
Singh that his absence from the State would be in the
interests of the State as well as India, particularly
in view of the complications which had arisen from the
plebiscite proposals then being actively pursued in
the United Nations. Hari Singh was stunned.
Posterity alone will judge
the Indian leaders for their decision to remove
Maharaja Hari Singh to keep the Conference leaders on
their side. Hari Singh never asked Patel whether India
would win the plebiscite after he had left. If he had
asked, the bluff would have been called off. Patel
assured the Maharaja that his stay outside the State
would be "a temporary phase" and he would
return to the State after a settlement with regard to
the plebiscite in the State had been finalized. Of the
Congress leaders, Hari Singh trusted Patel alone, and
he put his ship in Patel's hands. Patel drove him
straight to the reefs. In utter distress Hari Singh
wrote to Patel:
I should like to say at the
outset that I was completely taken aback by this
proposal, but coming as it did from you, in whom I
have since the very beginning placed implicit trust
and confidence and whose advice I have throughout
followed on the many questions affecting me personally
and my State both in the present and in future, I have
been able somehow to adjust myself to it. I would not,
however, be human if I did not express my sense of
keen disappointment and bewilderment at having been
called upon to make such a sacrifice of personal
prestige, honor and position when all along I have
been content to follow, sometimes even against my own
judgement and conscience the advice in regard to the
constitutional position in the State which I have been
receiving from the Prime Minister of India or
yourself, sometimes against arrangements which were
agreed to only a few months before. Nor would it be
fair on my part to conceal from you my own feeling
that while Sheikh Abdullah has been allowed to depart,
from time to time as suited his inclinations, from the
pledged and written word, to act consistently in
breach of the loyalty which he professed to me prior
to his release from jail and the oath of allegiance
which he took when he assumed of lice, and to indulge
openly along with his colleagues in a campaign of
vitrification and foul calumny against me, both inside
the State and outside, I should have had to be driven
from position to position - each of which I thought I
held on the advice of the State Ministry.
The contrast naturally fills
me with poignant feelings. However, I once again
putting any complete trusts in your judgement and
benevolent intentions towards us, I might be prepared
to fall in with your wishes and to absent myself from
the State for a period of three or four months in
consideration of the fact as emphasized by you,
namely, complications created by the reference to UNO
and the plebiscite issue.
Seeking assurances from Patel
that his absence from the State would not be construed
as a prelude to his abdication, he wrote to Patel:
I should like to be assused
that this step is not a prelude to any idea of
abdication. I should like to make it clear now that I
cannot enters the latter idea even for a moment and am
fully prepared to take the consequences. I regard such
a demand from my Prime Minister and his colleagues as
a clear breach of the many understandings on which
constitutional arrangements have been based from time
to time and a positive act of his disloyalty,
treachery and deception.
Sheikh Abdullah should be
clearly told to stop the campaign of vilification
against me and to abandon all activities, both on his
part and that of his followers, aimed at securing my
abdication. I feel that the sacrifice which I am being
called upon to make would be in vain if I continued to
be the target of their public and private utterances.
Patel reiterated the
assurances he had given to Hari Singh adding that the
future constitutional organization of the State would
be determined by the Constituent Assembly of the
State. He wrote to Hari Singh:
Regarding the points which
Your Highness has referred to me, I should like to
state that the question of Your Highness' abdication
does not arise. We have made the position quite plain
to Sheikh Mohammad Abdullah, and we hope there will be
an end to the public controversies centering round
this matter as well as to the derogatory reference to
Your Highness in the press and on the platform in the
State. Your Highness will, of course, appreciate that
the future Constitution of the State would be
determined by the duly elected Constituent Assembly.
After the arrangements for
the removal of Maharaja Hari Singh were completed, the
Conference leaders were invited to Delhi to finalize a
settlement with regard to the constitutional
organization of the State and its position in the
future organization of State. A decision had already
been arrived by the Conference of State Premiers that
instead of convening separate Constituent Assemblies
in the States to frame the State Constitutions, the
Constituent Assembly of India would draw up uniform
constitutional provisions for the States. Since the
National Conference leadership did not accept the
decision of the Premiers Conference, separate
arrangements had to be reached between the State and
the Indian Government. Consequently, a Conference of
the Conference leaders and the Central leaders was
held in Delhi in May 1949.
Delhi Conference
The deliberations of the
conference covered almost all the aspects of
constitutional organization of the State and the
relations between the State and the Union of India.
Nehru informed the National Conference leaders of the
agreement reached with Maharaja Hari Singh and told
them that it had been agreed upon that a Constituent
Assembly would be convened in the State which would
determine the future of the Dogra rule and draw up a
Constitution for the government of the State. Nehru
further outlined the broad basis of the constitutional
relations between the State and the Union of India and
proposed the inclusion of Jammu and Kashmir in the
constitutional organization of India with such
modification as would suit the specific historical and
political antecedents of the State. He proposed the
application of the Constitution of India to the State
with regard to the fundamental rights, principles of
State Policy and the federal judiciary. He also
proposed the extension of the Union jurisdiction to
the State with regard to the subjects included in the
Central List of the Constitution of India, which
enumerated the powers of the Union Legislature.
While he Conference leaders
accepted the proposals that the Constituent Assembly
of the State would determine the future of the Dogra
rule and draw up the Constitution of the State, they
did not endorse the proposals for the temporary
removal of the Maharaja, and the appointment of a
Regent from the ruling family. They insisted upon the
abdication of the Maharaja and emphasized that the
temporary removal of the Maharaja would not ally the
fears of the Muslims in the State, who identified the
Dogra rule with their subjection.
In regard to the
constitutional relations between the State and the
Union of India, the argument of the Conference leaders
was more Involved. They refused to accept the
inclusion of the State in the territorial jurisdiction
and the constitutional organization of India and
refused to commit themselves to the acceptance of any
application of the Constitution of India to the State
in respect of the matters which did not correspond to
the terms of the Instrument of Accession, and which
had been approved by the Interim Government. The
Conference leaders, in effect, proposed to create
separate instruments which would be independent of the
Constitution of India and which would determine the
constitutional relations between the State and the
Union of India. They particularly refused to accept
the application of the Constitution of India to the
State with regard to the fundamental rights,
principles of State policy and the federal judiciary
on the ground that the provisions with regard to the
fundamental rights and the principles of state policy
would be incorporated in the Constitution of the State
and the extension of the jurisdiction of the federal
judiciary, therefore, would be unnecessary.
The Conference leaders
expressed strong reservations about the transfer of
the State army to the Union and demanded the
restoration of the State army to the Interim
Government. They claimed that after the emergency was
over and the Indian forces were withdrawn from the
State, the State army would take over the defense of
the State. The Conference leaders complained that
during the Dogra rule, the State army had always been
a close preserve of the Hindu Rajputs, excluding the
Muslims and proposed its reorganization to rectify the
deficiency of the Muslims in its ranks. They sought
overtly to convey to the Central leaders, that they
did not recognize that the deployment of the Indian
troops in the State was a part of the arrangements
envisaged by the Instrument of Accession and the
powers of the Government of India in regard to the
defense of the State, did not include the control and
disposition of the armed forces of the State. The
Conference leaders obviously presumed that the Indian
forces had been deployed in the State to repel the
invading armies of Pakistan and after that was
achieved, they would be withdrawn and defense of the
State would be entrusted to the Muslim ranks of the
State army which the Interim Government would, in the
meanwhile raise.
The Conference leaders
underlined the following bases for the constitutional
organization of the State and its constitutional
relations with the Union of India:
- That a separate
Constituent Assembly would be convened in the
State, on the basis of universal adults franchise
to draw up the Constitution of the State;
- That the Dogra rule would
be abolished and the Maharaja would be replaced by
a Chief Executive, who would for the time being be
nominated by the Interim Governments;
- The powers of the
Maharaja, including the powers reserved for the
Maharaja, would be transferred to the Interim
Government;
- That the constitutional
relations between the State and the Union would be
limited to the division of powers between the
State and the Dominion Government stipulated by
the Instrument of Accession, subject to such
modifications as the Interim Government would
specify;
- The residuary powers would
be vested with the State Government;
- The provisions of the
Constitution of India, except those which were
deemed to correspond to the stipulations of the
Instrument of Accession by the Interim Government,
would not apply to Jammu and Kashmir;
- The control over the State
army would be restored to the State Government;
- The existing financial
relations between the State and the Dominion
Government would continue.
The central leaders did not
approve of the position taken by the Conference
leaders and insisted upon the application of the
provisions of the Constitution of India to the State
of Jammu and Kashmir in regard to the territorial
jurisdiction of the Union, Citizenship, fundamental
rights and the related legal guarantees, federal
judiciary and the principles of State policy. Nehru
pleaded for the formulation of a uniform Bill of
Rights for all the people in India, including the
people of the Jammu and Kashmir State. He told the
Conference leaders that no people in India, whatever
the exigencies of the situation, in which they were
placed, would be deprived of the rights and the
safeguards which the Constitution of India would
envisage and no State Government in India including
the Government of Jammu and Kashmir, would be vested
with the authority to restrict or limit such rights
and safeguards. Nehru laid great stress on the
application to the State of the principles of State
policy of the Constitution of India, which he claimed
the Constituent Assembly of India had evolved with
great pride and which promised the people of India,
social justice, freedom from want, protection against
exploitation, expansion of education, the eradication
of untouchability, protection of children and better
standards of life.
The central leaders did not
accept the contention of the Conference leaders in
regard to the State army and explained to the
Conference leaders that the Dominion Government had
assumed exclusive power over the defense of the State
and taken over the operational as well as
administrative control of the defense forces of the
State. The central leaders pointed out to the
Conference leaders that the transfer of powers to the
Dominion (Government about the State army had been
accomplished by Instrument of Accession and the
responsibility of the defenses of the State rested
with the Government of India and could not be, under
any circumstances, transferred to the State, even
after the present emergency had ended. With regard to
the recruitment of Muslims to the State army, Nehru
assured the Conference leaders, that all people in
India, including the people in the State, would enjoy
equality of opportunity guaranteed by the Constitution
of India and therefore, the Muslims in the State would
not suffer any discrimination in respect of their
recruitment of the State army.
An agreement was finally
reached between the central leaders and the National
Conference leaders, which envisaged that,
- The provisions of the
Constitution of India with regard to the
Government in the States would not apply to the
Jammu and Kashmir State;
- The Constitution of the
State would be framed by the Constituent Assembly
of the State, which would represent the people of
the State;
- The future of the ruling
family of Maharaja Hari Singh would be decided by
the Constituent Assembly of the State;
- The division of powers
between the State and the Union would be based on
the terms specified by the Instrument of Accession
and the Union jurisdiction would extend to the
subjects in respect of which the Dominion
Government had assumed powers by virtue of the
Instrument of Accession;
- The Constituent Assembly
of the State would determine such other subjects
which would be transferred to the Union and in
respect of which the Union would assume
jurisdiction over the State;
- The provisions of the
Constitution of India with regard to the
jurisdiction of the Union, Citizenship of the
Union, fundamental rights, and the related legal
safeguards, principles of State policy and the
jurisdiction of the federal judiciary would extend
to the State, subject to the modifications that
the provisions would not impinge upon the special
domicilliary rights in force in the State and the
economic reforms the Interim Government would
undertake;
- The administrative and the
operational control of the State army would remain
vested with the Indian army;
- The President of the
Indian Union would be vested with the powers to
modify or terminate the operation of the specific
provisions of the Constitution of India in regard
to the Jammu and Kashmir State, on the
recommendations of the Constituent Assembly of the
State.
It was agreed upon between the
Conference leaders and the Central leaders that the
Maharaja would, in accordance with the agreement
reached between him and the Government of India, leave
the State temporarily along with the Maharani and
Karan Singh, the Yuvraj, would be appointed the Regent
of the State in his place. It was, however, decided
that the removal of the Maharaja would not form a part
of the formal agreement reached between the Conference
leaders and the central leaders, on the constitutional
organization of the State and its placement in the
Indian Union. Agreement was also reached between the
Conference leaders and the central leaders with regard
to the representation of the Jammu and Kashmir State
in the Constituent Assembly India. Jammu and Kashmir
did not join the Constituent Assembly of India before
it acceded to India, nor were any representatives of
the State deputed to the Constituent Assembly of India
after its accession. Out of the ninety-three seats
allowed to the States in the Constituent Assembly,
Jammu and Kashmir was allotted four seats. It was
agreed upon that the representatives of the State
would be selected by the Interim Government and
formally nominated by the Maharaja
Hardly a day after the
Conference at Delhi was over, Sheikh Mohammad Abdullah
addressed a long note to Nehru, seeking fresh
clarifications on a number of issues on which decision
had been reached between the National Conference
leader and the central leaders. Nehru was dismayed at
the manner in which the Conference leaders sought to
raise fresh controversies with regard to
constitutional organization of the State. He wrote to
Abdullah:
- In the course of talks at
Sardar Patel's residence on 15 and 16 May 1949
between some of my colleagues and me and you and
your colleagues, important issues raised by you in
regard to the future of Jammu and Kashmir State
were discussed.
- Among the subjects that
were discussed were: (i) framing of the
Constitution of the State; (ii) the subjects in
respect of which the State should accede to the
Union of India; (iii) monarchical form of
government in the State; (iv) the control of the
State Forces; and (v) the rights of the citizens
of the State of equality of opportunity for
service in the State army.
- As regards (i) and (iii),
it has been the settled policy of the Government
of India, which on many occasions has been stated
both by Sardar Patel and me, that the Constitution
of Jammu and Kashmir State is a matter for
determination by the people of that State
represented a Constituent Assembly convened for
the purpose. In the special circumstances of the
State of Jammu and Kashmir, the Government of
India have no objection to the Constituent
Assembly of the State considering the question of
the continuance of the association of the State
with a constitutional monarchy.
- In regard to (ii) Jammu
and Kashmir State now stands acceded to the Indian
Union in respect of three subjects, namely foreign
affairs, defense and communications. It will be
for the Constituent Assembly of the State, when
convened, to determine in respect of what other
subjects the State may accede.
- Regarding (iv) both the
operational and administrative control over the
State Forces has any been, with the consent of the
Government of Jammu and Kashmir, taken over by the
Indian Army. The final arrangements in this
connection, for the duration of the present
emergency, including financial responsibility for
the expenditure involved, were agreed to between
us on the 16th instant.
- As regards (v) the
citizens of the State will have equality of
opportunity for service in the Indian army. Under
Article 10 of the draft of the new Constitution as
passed by the Constituent Assembly of India,
equality of opportunity for employment under the
State, including employment in the Indian Army is
declared to be amongst the fundamental rights of
all Indian citizens.
- I trust that the
Government of India's position, as stated above,
will give you the clarification that you have
asked fords.
Nehru visited Srinagar in the
last week of May and had further discussions with
Sheikh Mohammad Abdullah and the other leaders of the
National Conference on the special position State
would assume in the constitutional organization of
India In fact, Sheikh Mohammad Abdullah had raised
many disquieting issues in his communication to Nehru
particularly about the administrative control of the
State army during the emergency, the division of
powers between the Central Government and the State
and the future Constitution of the State.
Nehru assured Abdullah and
the other leaders of the Conference that the future
Constitution of the State would be drafted by the
Constituent Assembly of the State and the future of
the ruling dynasty would also be determined by the
Constituent Assembly of the State. He further assured
the Conference leaders that the division of powers
between the State Government and the central
Government of India would be governed by the
provisions of the Instrument of Accession and the
Union legislature would exercise such powers in
relation to the State, as were transferred to the
Dominion Government in accordance with the Instrument.
Nehru told the Conference leaders that the operational
and administrative control of the State army was
vested with the Indian army command in pursuance of
the agreements with the State Government but he
reassured the State leaders that recruitment to the
State forces would not he prejudiced by any
considerations of caste, religion and place of birth.
Nehru assured the Conference
leaders that the provisions of the Constitution of
India, not incidental to the Instrument of Accession
would not be extended to the State and the Constituent
Assembly of the State would be vested with the
residuary authority to formulate constitutional
provisions with regard to matters which were not
covered by the Constitution of India. He, however,
told the Conference leaders that the provisions of the
Constitution of India which envisaged the territorial
jurisdiction of India, Indian citizenship, rights and
obligations of the people of India and the related
legal guarantees, the Directive Principles of the
State Policy, the jurisdiction of the federal court in
regard to the settlement of disputes between the
Central Government and the States and the enforcement
of constitutional rights, powers of the Government of
India to deal with emergencies arising our of war,
invasion or internal disturbances and the elections,
would be applicable to the Jammu and Kashmir State,
because such application emanated from the fact of
accession of the Indian States to the Dominion of
India. Many powers, Nehru told the Conference leaders,
were assumed by the Government of India in regard to
the State, because they were inherent in the accession
of the States. He further told the Conference leaders
that the provisions of the Constitution of India with
regard to the Government of India would also be
applicable to the State, subject to the exceptions
incorporated in the Instrument of Accession, mainly
because the Government of India could exercise powers
in regard to the State which were conferred upon it by
the Constitution of India. Nehru pointed out to the
Conference leaders that any Constitution of the State
of Jammu and Kashmir could not vest powers in the
instruments which it did not create and, therefore,
could not vest powers in the Government of India,
which the Constitution of India did not defined.
Nehru asked Patel to
communicate to Maharaja Hari Singh the terms of the
agreement which had been arrived at with the
Conference leaders Hari Singh was informed of the
negotiations at Delhi but, at no stage was he
consulted about the arrangements the Government of
India sought to reach with the Conference leaders.
Nehru wrote to Patel:
I hope that this will be an
end to the squabbles that have been going on in
public. This has been impressed upon Sheikh Abdullah
and I am pointing this out to him again in a separate
letter.
I take it that the Maharaja
and the Maharani will keep out of the State, as agreed
upon, for some months. The Bombay house will be at
their disposal. It would have been better if they had
gone out of the country for a period, say two or three
months, but that is a matter for them to decide. I do
not think any period would be fixed for the Maharaja's
absence from Kashmir. The matter had better be left
vague.
The Maharani naturally
dislikes intensely the idea of being away from her
son. I do not think it is necessary for her to be kept
absolutely away and she can certainly visit her son
later from time to time. But for the present, I think
it would be to the advantage of all concerned,
including the Maharaja and the Maharani, for both of
them to stay away for a while.
I hope you will explain to
the Maharaja and the Maharani as well as the Yuvraj
the agreements arrived at between us and Sheikh
Abdullah and his colleagues. The written agreement
rightly does not say anything about the Maharaja going
out of the State. But this was a private assurance
given by us and we have naturally to stand by it.
The Interim Government
nominated four members to represent the Jammu and
Kashmir State in the Constituent Assembly of India.
The nominations were referred to Hari Singh who was
staying at Debra Dun. In May 1949, Maharaja deputed
the representatives to the Constituent Assembly of
India. The representatives of the State joined the
Constituent Assembly on June 6, lg49. On 9 June 1949,
Maharaja Hari Singh announced by a proclamation, his
decision to leave the State and nominated his son
Yuvraj Karan Singh, the Regent of the State.
Hari Singh had hardly left
the State, when the Conference leaders, who had by now
assumed complete control over the government of the
State, began to extricate themselves from the
agreement, which they had reached with the Central
leaders at Delhi in May. The Conference leaders
initiated a number of closed-door meetings in which
the terms of the agreement reached with the Central
leaders were subjected to serious consideration. Most
of the meetings were secretly organized and were
confined to the Muslim leaders of the Conference, the
Sikhs and the Hindus being excluded. Prominent and
influential Muslims who had opposed the accession of
the State to India, and senior Muslim officers of the
State Government who were opposed to the National
Conference, were specially invited to attend these
meetings. Many among them were in clandestine contact
with the Azad Kashmir authorities on the other side of
the cease-fire line and worked for the intelligence
agencies of Pakistan, which operated in the State. The
feelings which were voiced in these meetings broadly
represented:
- That the National
Conference leadership should not oppose the
proposed plebiscite in the State and accordingly
should not accept the inclusion of the State in
the territorial jurisdiction or the constitutional
organization which the Constitution of India
envisaged;
- That India was a
predominantly Hindu majority State and the Muslims
of Kashmir would lose their identity if the State
was integrated into the proposed constitutional
organization of India, in which the Hindus would
always exercise dominance;
- That the Muslim majority
character of the State should not be impaired and
the only safeguard to protect it would be to keep
the State out of the constitutional organization
of India;
- That the convocation of
the Constituent Assembly would at the time be
premature and the Assembly should be convened
after the final decision with regard to the
accession of the State was reached and the part of
the State under the occupation of Pakistan was
reunited with the rest of the State;
- The Interim Government
should devise a Constitution for the government of
the State.
The Conference leaders,
including Sheikh Mohammad Abdullah, Mirza Afzal Beg
and Mulana Masoodi who had negotiated the agreement
with the Central leaders in May at Delhi, tacitly
agreed with the views that the State should not be
brought within the territorial jurisdiction of the
proposed Union of India or its constitutional
organization and the Muslim majority character of the
State should form the basis of the relations between
the State and the Union of India. They also agreed
with the view that the relations between the State and
the Union of India should be based on the terms which
the Instrument of Accession specified for the
accession of the State of India
The Conference leaders
decided to repudiate the agreement they had reached
with the Central leaders in May, and evolved fresh
proposals on which they claimed, the constitutional
relations between the State and the Union of India
would be based. The proposals underlined that:
- The State would not be
brought within the territorial jurisdiction of the
proposed Union of India or its constitutional
organization;
- The constitutional
relations between the State and the proposed Union
of India would be based on the terms of the
Instrument of Accession;
- The administrative control
over the State forces would be restored to the
State after the forces were reorganized and the
State was In a position to undertake their
operational control;
- No instruments, including
the Constituent Assembly of the Jammu and Kashmir
State would be vested with any constituent power
to change and modify the existing constitutional
relationship between the State and India;
- The Constituent Assembly
of the State would be vested with the power to
draw up the Constitution of the State which would
envisage provisions pertaining to the quality of
judicial review, the quantum of individual freedom
and the related legal safeguards, principles of
the State policy and election to the
representative bodies envisaged by the
Constitution.
The Conference leaders did not
apprise the central leaders of their views till the
draft provisions of the Constitution of India were
drawn up and sent to the Conference leaders for their
approval. The draft provisions were based on the
agreement, which had been concluded between the
Conference leaders and the central leaders. The draft
provisions were enshrined in draft Article 306-A of
the Constitution of India. The Article stipulated:
- The provisions of the
Constitution of India with regard to Part B States
would not apply to the Jammu and Kashmir State;
- A Constituent Assembly
would be convened in the State to draft the
Constitution of the State;
- Provisions of the
Constitution of India with regard to the
territories of India, Indian citizenship,
fundamental rights and the related legal
safeguards and the Directive Principles of the
State Policy would apply to the State;
- The other provisions of
the Constitution of India would apply to the State
with such exceptions as were mutually agreed upon
between the Government of India and the State
Government;
- The Union would exercise
powers with regard to the subjects, which were
specified by the President of India to correspond
with the subjects transferred to the Dominion
Government by the Instrument of Accession, in
consultation with the State Government, and such
other subjects as would be specified by the
President of India in concurrence with the State
Government;
- The President of India
would be empowered to modify, restrict or suspend
the operation of the provisions of Article 306-A,
on the recommendations made by the Constituent
Assembly of Jammu and Kashmir State.
The Working Committee of the
Conference sat in several sessions to examine the
draft and as was anticipated, refused to approve it.
The Uncorking Committee resolved that the National
Conference could not accept the stipulations of
Article 306-A, as a basis for constitutional relations
between the State and the Union of India. The Working
Committee disapproved of the preamble to Article
306-A, which stipulated that the provisions of the
Article would be of a transitional nature and would be
subject to modification by the Constituent Assembly of
the State. The Working Committee also disapproved of
the application o any provisions of the Constitution
of India to the State except the provisions, which
corresponded to the terms of the Instrument of
Accession. The Working Committee expressed the fears
that the application of the provisions of the
Constitution of India with regard to citizenship,
fundamental rights and the related constitutional
legal guarantees would prejudice the domicilliary
State-Subjects Rules in force in the State.
The State Subject rules imposed restrictions on people
who were not state subjects in respect of immovable
property in the State, state services, and other
rights, which were available to the state subjects.
Almost all the Muslim members
of the Working Committee of the Conference denounced
the settlement, which the Conference leaders had
reached with the Central leaders in May at Delhi. The
Hindu and the Sikh members of the Committee watched
the proceedings with helpless indignation. Few of the
Conference leaders registered their disagreement with
the decisions the Working Committee had taken. The
small section of the leadership, which felt ravaged
over the developments in the Conference, hailed from
Jammu. The people of Jammu, they knew, would never
support the move to keep the State out of the
constitutional organization of India and any attempt
to do so would not only alienate them but would evoke
severe resistance from them.
On October 12, 1949, Sheikh
Mohammad Abdullah communicated to Gopalaswami Ayangar
the decisions of the Working Committee and informed
him that the Working Committee had disapproved of the
draft constitutional provisions embodied in Article
306-A. Abdullah informed Ayangar that the Working
Committee had refused to accept that the
constitutional provisions with regard to the State
would be of transitional nature and would be subject
to modification by the Constituent Assembly of the
State. He informed Ayangar that the Working Committee
had disapproved of the application of the Constitution
of India to the State except in respect of those of
its provisions, which corresponded, to the terms of
the Instrument of Accession. The Working Committee had
expressed fears, Abdullah informed Ayangar, that the
application of the provisions of the Constitution of
India, pertaining to the Indian citizenship, the
fundamental rights and the Directive Principles of
State Policy would prejudice the domicillary
State-subject rules. Sheikh Abdullah sent an
alternative draft to Gopalaswami Ayangar, which
stipulated the application of only such provisions of
the Constitution of India to the State, as
corresponded to the stipulations of the Instruments of
Accession. Sheikh Mohammad Abdullah added an
explanation to his draft which defined the State
Government as "the Ruler of the State acting on
the advice of the Council of Ministers appointed under
the proclamation of the Maharaja dated 5 March
1948."
Ayangar received a jolt when
the communication of the Conference was delivered to
him. On 14 October 1949, he had a long meeting with
Sheikh Mohammad Abdullah and Mirza Afzal Beg, and
tried to persuade the Conference leaders to accept the
draft provisions of Article 306-A. Ayangar explained
to the Conference leaders that the State would be
reserved the right to frame a Constitution for its
government and would be vested with all powers of the
government except those which had been transferred to
the Dominion Government by the Instrument of
Accession. However, he told the Conference leaders
that the accession of the State underlined that the
State would be brought within the broad structure of
the imperatives, the Constitution of India envisaged.
The Conference, leaders stuck to their stand and told
Ayangar bluntly that the State had acceded to India in
regard to only three subjects: foreign affairs,
defense and communications and retained its
independence in all other aspects. They told Ayangar
that it was on that understanding that the people of
the State had supported accession of the State to
India and since the Conference owed a duty to the
people, they would not be able to accept the these
provisions. The meeting ended without a settlement.
Ayangar did not possess the
acumen to deal with the Conference leaders. Nehru was
away in the United States of America. Over-weighed by
the experience at the Security Council, Ayangar
dreaded to antagonize the Conference leaders. He gave
way and redrafted the provisions of Article 306-A,
restricting the application of the Constitution of
India to the State to Article 1, which defined the
territories of the Union, and the provisions
pertaining to Indian citizenship, and making the
fateful omission of deleting the provisions with
regard to the fundamental rights and the related
constitutional safeguards. He wrote to Sheikh Mohammed
Abdullah:
Our discussion this morning,
as I indicated to you, left me even more distressed
than I have been since I received your last letter
from Srinagar.
But this personal reaction of
mine is irrelevant when I feel weighed with the
responsibility of finding a solution for the
difficulties that after Pandit Ji left for America and
within the last few days, have been created, from my
point of view, without adequate excuse.
In spite of this personal
feeling, I am anxiously keen now as ever I have been
to see that you are not given any cause for genuine or
even imagined grievance in regard to the policy that
the Government of India are following, in relation to
Kashmir. I have therefore, since you left me this
morning, tried to find a way out of the present
situation in regard to Article 306-A.
I enclose a draft of Article
306-A with the language of it readjusted so as to meet
practically all your points.
I do not wish to write a
thesis on the changes that I have made. You will be
able to recognize them easily. If you wish to have any
further elucidation in the matter I would request you
to come over and discuss it frankly with me.
I do hope you will appreciate
the gesture I am making. If you are agreeable to this
new draft being substituted for the one of which the
Drafting Committee had already given notice, I shall
ask the Drafting Committee to give notice of this
draft in substitution of the other one. Personally I
should like you to move this draft yourself in the
House. We shall be there to support you, and I hope
the debate would be maintained at such a high level
that a report on it, when cabled to America will have
an effect on the discussions of the Kashmir problem,
that may there be going on which will be of the
maximum help to Pandit Ji.
I am looking forward to your
rising to the occasion.
Apparently Ayangar had learnt
no lessons at the Security Council otherwise why
should he have concerned himself so seriously, in
calling upon the Kashmir delegation to initiate the
debate on the special constitutional provisions for
the State. Which high level of discussion, he asked
Sheikh Abdullah to maintain, so that Nehru would take
advantage of it in America? Sheikh Mohammad Abdullah
had delivered a more spirited harangue in the Security
Council and that had earned both Abdullah and Ayangar
more calumny. If Ayangar sought to please Nehru, he
should have realized that no one in America would have
applauded him for having framed the draft provisions
of Article 306-A and having condemned the people of
the State, particularly the Hindus, the Sikhs and the
Buddhist minorities, to servitude and suffering.
Ayangar had served the State as the Prime Minister to
Maharaja Hari Singh for more than six years and he was
aware of the intricate balances of community demands,
regional pressures and amorphous class interests which
characterized the political sociology of the State.
He, as well as Nehru had experienced the ruthless
severity with which the Conference leaders had sought
to reorganize these balances and to establish fresh
alignments, which ensured political precedence for the
Muslims in the State. Gilding the perfidy, he wrote to
Patel:
Sheikh Abdullah and two
colleagues of his had a talk with me for about an hour
and a half this morning. It was a long drawn out
argument, and, as I told you this morning, there was
no substance at all in the objections that they put
forward to our draft. At the end of it all, I told
them that I had not expected that, after having agreed
to the substance of our draft both at your house and
at the party meeting, they would let me and Pandit Ji
down in the manner they were attempting to do. In
answer, Sheikh Abdullah said that he felt very grieved
that I should think so but that in the discharge of
his duty to his own people he found it impossible to
accept our draft as it was. I told him thereafter to
go back and think over all that I had told them and
hoped that he would come back to me in a better frame
of mind in the course of the day or tomorrow
I have since thought over the
matter further and dictated a draft, which, without
giving up the essential stand we have taken in our
original draft, readjusts it, in minor particulars in
a way, which I am hoping Sheikh Abdullah would agree
tow
Patel, apparently, did not
favor the modifications, Ayangar had made in Article
306-A. He did not approve of the deletion of
fundamental rights and Directive Principles of State
Policy, from the provisions of the Constitution of
India, which would apply to the State. Perhaps, Patel
visualized the consequences to which such a course of
action would inevitably lead. He wrote to Ayangar:
I find there are some
substantial changes over original draft, particularly
in regard to the applicability of fundamental rights
and Directive Principles of State Policy. You can
yourself realize the anomaly of the State becoming a
part of India and at the same time not recognizing any
of the provisions.
I do not at all like any
change after our party had approved of the whole
arrangement in the presence of Sheikh Sahib himself.
Whenever Sheikh Sahib wishes to back out, he always
confronts us with his duty to the people. Of course,
he owes a duty to India or to the Indian Government,
or even on a personal basis, to you and the Prime
Minister who have gone all out to accommodate him.
In these circumstances any
question of my approval does not arise. If you feel it
the right thing to do, you can go ahead with it.
Ayangar's discomfiture did
not end here. The revised draft of Article 306-A, was
also rejected by the Conference leaders. Sheikh
Mohammad Abdullah wrote to Ayangar that it was not
possible for him and his colleagues to accept the
revised draft as well. He sent an alternative draft to
Ayangar which underlined that the provisions of the
Constitution of India which corresponded to the terms
of the Instrument of Accession would apply to the
State and the other provisions of the Constitution of
India would apply to the State with the approval of
the Interim Government. Abdullah wrote to Ayangar that
the alternate draft "went far beyond the sphere
in Aspect of which we had acceded to India".
Meanwhile Afzal Beg gave the Constituent Assembly the
notice of an amendment in Article 306 A, which sought
to restrict the application of the Constitution of
India to the terms of the Instrument of Accession.
Ayangar met the Conference
leaders again and tried to persuade them to accept the
revised draft. However, the Conference leaders did not
relent. Finally, Ayangar drew up a fresh draft in
consultation with Afzal Beg, who was deputed by Sheikh
Mohammad Abdullah to negotiate a settlement with
Ayangar. Abdullah pulled the strings from behind. The
revised draft stipulated:
- Article I would apply to
the State and the State would be included in the
territories of the Union of India;
- No other provision of the
Constitution of India would be applied to the
State, except with the approval of the Interim
Government of the State;
- The division of powers
between the Union and the State would be
determined in accordance with the terms of the
Instrument of Accession;
- The President of India
would be empowered to terminate or modify the
operation of the Constitutional provisions with
regard to the State on the recommendation of the
Constituent Assembly of the State;
- The State Government would
be construed to mean the Maharaja acting on the
advice of the Council of Ministers appointed under
his proclamation dated 5 March 1948.
The revised draft of Article
306-A was circulated in the Constituent Assembly on 16
October, 1949. It came up for the consideration of the
Assembly the next day. Many of the members of the
Constituent Assembly objected to the explanation
defining the Government of the State and pointed out
to Ayangar that the explanation vested the powers of
the government with the "Council of Ministers
appointed-under the Maharaja's Proclamation dated 5
March 1948", in perpetuity and in effect excluded
all subsequent government of the State from the
purview of the Constitution of India Ayangar had
probably glossed over t anomaly involved in the
explanation. Ayangar modified the explanation in so
far as the Government of the State would be construed
to mean the "person for the time recognized 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."
Ayangar informed the Conference leaders about the
modifications he had made in the explanation on the
morning of 17 October 1949. The Conference leaders
refused to approve of the modification Ayangar had
made. Ayangar along with Maulana Azad assured the
Conference leaders that the modification in the
explanation was deemed necessary to avoid the
discrepancy in Article 306-A, which implied a
perpetual Interim Government. The Conference leaders
however, did not approve of the amendment and told
Ayangar and Azad that if the modifications to the
explanation were not withdrawn, the Conference leaders
would move the amendment of which they had given
notice to the Assembly before the draft was revised by
Ayangar and Beg.
Unable to bring round the
Conference leaders to condescend to the changes he had
brought about in the draft provisions, Ayangar
presented the draft Article 306-A to the Constituent
Assembly for its consideration The Conference leaders
sulked away and did not join the debate on the Wit
provisions. They joined the deliberations of the
Assembly after Ayangar had already delivered a part of
his speech. The Conference leaders watched the
proceedings in grim silence. "The President of
the Assembly waited for a minute or two for members to
rise for making speeches before he put the draft to
the House". The Conference leaders did not rise
to speak and did not move any amendment to the draft.
The draft was adopted by the Assembly without any
dissent
The Conference leaders were
bitter at the turn the events had taken. Sheikh
Mohammad Abdullah wrote a sharp rejoinder to Ayangar
asking him to reconsider the decision the Constituent
Assembly had taken on Article 306-A. He wrote to
Ayangar that if that was not done, he would resign
from the Constituent Assembly along with the other
representatives of the Jammu and Kashmir State. Sheikh
Mohammad Abdullah wrote:
As I have told you before, I
and my colleagues have been extremely pained by the
manner in which the thing has been done, and, after
careful consideration of the matter, we have (arrived)
at the conclusion that it is not possible for us to
let the matter rest here. As I am genuinely anxious
that no unpleasant situation should arise, I would
request you to see if even now something could be done
to rectify the position. In case I fail to hear from
you within a reasonable time, I regret to say that no
course is left open for us but to tender our
resignation from the Constituent Assembly.
Ayangar was sore. He had not
been treated with any consideration by the Conference
leaders. Indeed, he had gone to the farthest limits to
accommodate their views. He could not retrieve the
ground he had lost, but is was evident that he could
not go any further to appease the State leaders. He
wrote back to Abdullah:
It is true that after having
unsuccessfully attempted along with Maulana Azad, to
persuade you to agree willingly to substitution of the
words "for the time being" for the word
"appointed", I did move the Article with the
amendment after obtaining the permission of the
President to do so. The whole House accepted this. I
am sorry that you could not move any amendment of your
own against the one I moved. There was, however,
nothing to prevent you or any of your colleagues from
opposing the amendment that I did move, and as a
matter of fact, we were looking forward to your making
a speech on the whole of the article and believe the
President waited for a minute or two for members to
rise for making speeches before he put the draft
article to the House.
Ayangar wrote to Abdullah,
that, if he and his colleagues felt aggrieved they
could take such steps as the rules of the House
allowed for any rectification. He forewarned Abdullah
that the resignation of the Conference members from
the Constituent Assembly would have serious
repercussions, in Kashmir and outside. He wrote:
I do not consider, therefore,
that there is any justification for your entertaining
any idea of resignation from the Constituent Assembly.
The step, if taken, would produce the most unwelcome
and serious repercussions in Kashmir, India and the
world, and I must ask you to communicate with the
Prime Minister before you decide on anything like it.
For myself, I shall pass on to him your letter and
this reply of mine to it.
At the revision stage,
Article 306-A was remembered Article 370 of the
Constitution of India. On 25 November 1949, the Regent
of the State, Karan Singh, by a proclamation ordered
that the relations between the State and the Union of
India be governed by the Constitution of India.
According to the proclamation the Constitution of
India superseded and abrogated all other
constitutional provisions inconsistent with it which
were in force in the State. On 26 January 1950, the
Constitution of India came into force.
Special Status
In accordance with the
special provisions embodied in Article 370 of the
Constitution of India, the Jammu and Kashmir State was
exempted from the application of the provisions of the
Constitution of India dealing with the States in Part
B of its First Schedule.22 In Part B of the First
Schedule were listed the erstwhile princely States,
which had acceded to the Dominion of India, but which
had not merged with any province or had not been
reorganized into centrally Administered Areas.
Hyderabad, Jammu and Kashmir, Mysore, Madhya Bharat,
Patiala and East Punjab States Union, Rajasthan,
Saurashtra, Travancore - Cochin and Vindhya Pradesh
were included in Part B of the First Schedule. A
separate part: Pan VII was included in the
Constitution, providing for the internal constitution
of all these States. Provisions of Part VII provided
that Part VI of the Constitution, which envisaged
provisions for Part A States, corresponding to
Governor's provinces, would also apply to the Part B
States, subject to certain modifications and
exceptions. Each of the States was to have a
democratic government with a Council of Ministers
functioning in responsibility to a legislature
constituted in the same manner as in the Part A
States. The Jammu and Kashmir was saved from the
application of Part VII of the Constitution and was
reserved the right to frame a separate Constitution
for its government. Provisions were incorporated in
Article 370 for the institution of a Constituent
Assembly in the State to draw up its Constitution. No
other provision of the Constitution of India except
Article I was made applicable to Jammu and Kashmir.
The powers of the Parliament
to legislate in regard to the State were limited to
the matters, which were declared by the President of
India, in consultation with the Government of the
State, to correspond to the stipulations of the
Instrument of Accession. The Union Government was
reserved the power to exercise jurisdiction in regard
to the State in respect of subject transferred to the
Government of India by virtue of the Instrument of
Accession. The residuary powers were reserved for the
State. The scheme of the divisions of power between
the Union and States, embodied by the Constitution of
India, was not, therefore, extended to Jammu and
Kashmir.
Provisions were incorporated
in Article 370 by virtue of which the President of
India was empowered to transfer powers to the Union in
regard to such other subjects in the Union List, the
Concurrent List and the State List of the Constitution
of India, which he specified, with the concurrence of
the State Government. The President was also empowered
to extend to the State, the application of the
provisions of the Constitution of India, which were
riot already made applicable to the State, with such
modifications and exceptions as the President would by
order specify. The President was empowered to issue
such orders in consultation with the State Government
and in case such orders related to the matters
specified in the Instrument of Accession with the
concurrence of the State Government. If any such
orders, which involved the transfer of additional
powers to the Union or the application of any further
provisions of the Constitution of India to the State,
were promulgated by the President before the
Constituent Assembly of the State was convened, the
consultation and concurrence of the State government
were to be placed before the Constituent Assembly
"for such decision as it might take".
Article 370 envisaged
provisions, which empowered the President of India to
declare by public notification that the provisions of
the Article would cease to operate or would be
operative only with such Exceptions and modifications
as he would specify. All such notifications were to be
issued by the President only on the recommendations of
the Constituent Assembly of the State.
An interesting aspect of
Article 370 was that it envisaged a perpetual
Constituent Assembly in the State, at least, so long
as the transitional provisions remained on the Statute
Book. The framers of the Constitution presumed, that
the temporary provisions, envisaged by Article 370
would last only for a relatively short duration and
their operation would hardly extend beyond the time
the Constituent Assembly of the State would take to
draft the Constitution of the State. The Constituent
Assembly of the State was dissolved in 1957, after it
had completed the task of framing the Constitution of
the State.
Article 370 did not vest any
constitutive power in the hands of the President, nor
did it vest any such power with the Constituent
Assembly of the State. The President, as well as the
Constituent Assembly, was empowered to order that the
operation of the provisions of Article 370 would
cease, or continue with such amendments and exceptions
as they would specify. They were subject to the
limitations which one placed on the other.
The powers to amend the
provisions of Article 370, were vested with the
Parliament of India, which was not subject to any
limitation imposed by Article 370 or any other
provision of the Constitution of India. The
constituent power to amend the Constitution of India
in accordance with the procedure laid down by it is
unfettered and cannot be restrained except by an
instrument, expressly created by the Constitution. No
limitation was placed on the powers of the Parliament
to amend Article 370. Even if such a stipulation was
incorporated in the Constitution of India and
provisions were incorporated in Article 370, which
placed limitations on the Parliament of India to amend
its provisions, there was nothing which stood in the
way of the Parliament to repeal the limitation as well
as abrogate or amend the provisions of the Article.
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