Kashmir: Greater Autonomy

by Dr. M. K. Teng, C. L. Gadoo
 (Joint Human Rights Committee WA-88, Shakarpur, Delhi - 110092)

Terrorism in Jammu and Kashmir has almost broken up the national consensus on major functional attributes of Parliamentary government in Jammu and Kashmir. There is a deep difference of opinion about the feasibility of a political package on 'greater autonomy' to the State; Hindus and the other minorities, about 46 percent of the population of the State, opposed to any restructurisation of the existing constitutional relations between the Union and the State, and the Muslims uncertain of whether the so-called package of autonomy would be acceptable to militant regimes as a basis for settlement with the Indian Govemment. Perhaps, the Government of India believes that it can substitute 'greater autonomy' for the 'right of self-determination', that the Muslim secessionist forces, militarised by Pakistan in 1989-90, have been demanding for the last five decades. The former Prime Minister, Narsimha Rao, went so far as to suggest, that the Congress Government would concede "Azadi, short of Independence" to meet Muslim separatism, at least half-way, exactly in the same manner as the Congress had offered to concede a Muslim State within India, when it accepted the Cabinet Mission Plan in 1946.

    The acceptance of the separate identity of the Muslim majority provinces proposed by the Cabinet Mission Plan led to the partition of India in 1947. The acceptance of the 'autonomy of the State', which, evidently, is presumed to be based on exclusion of Jammu and Kashmir State from the Indian constitutional organisation, may lead to the second partition of India.

    The Government of India appears to have overlooked the dangerous portent of forcing a restructurisation of the existing constitutional relations between the State and the Indian Union and exclude the State from the constitutional organisation of India, to push it back into the position of isolation in which it was placed from 1947 to 1954. In the new setting created by fundamentalisation of secessionist movements in the State and their militarisation by Pakistan, the exclusion of the State from the Indian constitutional organisation, which the demand for autonomy actually aims to achieve, will be a prelude to the disengagement of the State from India. The recognition of Jammu and Kashmir, as a separate Muslim identity, based upon the Muslim majority character of its population, repudiates the Indian commitment to secularism and integration of the Indian people on the basis of the fundamental right to equality. Perhaps, it is not fully realised that Muslimisation of Jammu and Kashmir, the only Muslim majority State in India, would eventually disrupt the foundations of the Indian political culture and threaten not only the secular values of the Indian nation but its unity as well.

DISTORTION OF HISTORY

    Maharaja Hari Singh, the ruler of Jammu and Kashmir State, signed the same standard form of the Instrument of Accession in October 1947, which the other Indian rulers signed to accede to the then Indian Dominion. The Instrument of Accession was evolved by the States Department, headed by Vallabh Bhai Patel, and was based upon the principles the Cabinet Mission had stipulated for the accession of the Indian States to the All India federation. All the rulers of the acceding States retained all the residuary powers of government and the Instrument of Accession they signed underlined the delegation of powers to the Dominion Govemment in respect of foreign affairs, defence and communications only. Among the other rulers, Hari Singh too retained the residuary powers of the government, and the Instrument of Accession he signed envisaged the delegation of powers to the Dominion Government of India in respect of foreign affairs, defence and communications. The Instrument of Accession did not bind any acceding State, including Jammu and Kashmir, to accept the future constitution of India.

    No separate or special provisions were incorporated in the Instrument of Accession signed by Hari Singh and there was no precondition or agreement, specially accepted by the Government of India to any separate and special constitutional arrangement, to the exclusion of the other acceding States.

    That the State Department of the Dominion Government, or the ruler of the State or the Congress leadership accepted any condition that Jammu and Kashmir would be provided a special constitutional position or any particular brand of autonomy or would be recognised as a separate Muslim identity, is a travesty of history. Neither Nehru, nor Patel gave any assurance to the Conference leaders that the Jammu and Kashmir State would be recognised as a separate constitutional entity because of the Muslim majority in its population.

    When the invading armies of Pakistan were fast approaching Srinagar, the Prime Minister of Jammu and Kashmir, Mehar Chand Mahajan, arrived in Delhi, with a request from Hari Singh for help against the invaders. Mahajan was instruced to inform the Government of India that the Maharaja had decided to accede to the Indian Dominion and accepted to transfer whatever authority he would be required to make in favour of the National Conference. Sheikh Mohammad Abdullah was in Delhi and neither he nor Nehru laid any conditions on Mahajan in respect of the future constitution of the State. Mahajan too did not make any commitment on the separate Muslim identity of Jammu and Kashmir or its autonomy. Nehru sought a substantial transfer of authority to the National Conference which was in consonance with the pledges that the Congress had given to the people of all Princely States. The Congress was committed to replace personal rule, which characterised the political organisation of the States, by representative institutions on the basis of administrative responsibility which was accepted for the reorganisation of the governments in the Indian Provinces. Jammu and Kashmir was not recognised as an exception here also.

    After accession of the State to India, an Emergency Administration, headed by Sheikh Mohammad Abdullah, was constituted by Hari Singh on 30 October 1947, to deal with the situation of crisis the invasion had created. In June 1948, The Emergency Administration was dissolved and replaced by an Interim Government, formed by the National Conference and headed by Sheikh Mohammad Abdullah.

    Unfortunately lies have been multiplied during the last four decades to distort the history of those crucial years and lies are being retold to justify the treachery and blackmail, which characterised the atrocious process of forcing the exclusion of the State from the Indian constitutional organisation in 1950, when the Indian Constitution was adopted.
 

INSTRUMENT OF ACCESSION

    The Instrument of Accession, which the rulers of the Princely States executed to join the Indian Dominion, reserved them the right to convene Constituent Assemblies to frame constitutions for their respective governments. The ruler of the Jammu and Kashmir also reserved the right to convene a Constituent Assembly to frame a constitution for his government. The Constituent Assembly of India, was by mutual consensus of the Premiers of the States and the representatives of the Constituent Assembly, entrusted with the task of evolving a model constitution, which the Constituent Assemblies of the States would follow in order to avoid any conflict between the Constitution of India and the constitutions of the States. Constituent Assemblies were convened in the Mysore State, the States Union of Saurashtra and the States Union of Travancore-Cochin.

    In 1949, an extraordinary decision was taken by the Premiers of the States in a Conference held in Delhi. They decided to entrust to the Constituent Assembly of India the task of framing a uniform set of constitutional provisions for all the States. The constitutional provisions for the States, the Conference decided, would be incorporated in the Constitution of India.

    The National Conference leaders did not accept the decision of the Premiers' Conference and insisted upon convocation of a separate Constituent Assembly for Jammu and Kashmir. Consequently, a Conference of the Conference leaders and representatives of the Dominion Government, in which Nehru and Sheikh Mohammad Abdullah participated, was convened in Delhi, shortly after the Premiers' Conference. A number of issues pertaining to the territorial jurisdiction of the Union, citizenship, fundamental rights and related safeguards, freedom of faith, emergencies arising out of war, rebellion and constitutional breakdown in the States, jurisdiction of the Courts, division of powers between the Union and the federating States, residuary powers between the Union and the federating States, the residuary powers and the institution of the Constituent Assembly in the State, came up for deliberation in the Conference. The Constituent Assembly of India had evolved provisions in respect of the territories of the Union, citizenship, fundamental rights, principles of State policy, jurisdiction of the courts and emergencies. The Constituent Assembly of India had also evolved a scheme of the division of powers between the Union and the States, which it proposed would replace the delegation of powers stipulated by the Instrument of Accession the acceding States had signed.

    The Conference leaders stunned Nehru and the other Congress leaders when they refused to accept the application of any provisions of the Constitution of India to the State and instead insisted upon the continuation of federal relations between the proposed Union of India and Jammu and Kashmir on the basis of the Instrument of Accession. In other words they demanded the exclusion of the State from the consitutional organisation of India and its reorganisation into a separate political entity which would be aligned with the Union of India in respect of external relations, defence and communications. In fact, the National Conference demanded the restoration of control over the State army to the Interim Government, which they claimed, would undertake the defence of the State, after the Indian army was withdrawn. The Conference leaders proposed that

        (i) the rule of the Dogra dynasty be abolished;

        (ii) the State be excluded from the constitutional organisation of India:

        (iii) the relations between the Union and the State be governed by the stipulations of the Instrument of Accession;

        (iv) the control over the State army be transferred to the Interim Government of the State;

        (v) the Interim Government would institute a separate Constituent Assembly to draw up a Constitution for the State.

    The Indian leaders agreed to leave a wider orbit of authority to the State Government and accepted to vest the residuary powers with it. They agreed to the demand for the abolition of the Dogra rule, and the institution of a separate Constituent Assembly for the State. However, they refused to countenance the exclusion of the State from the Indian Union and its constitutional organisation. Nehru, evidently disconcerted with the proposals the Conference leaders made, told them that he could not accept to deprive the people of the State of the Indian citizenship, fundamental rights and the Directive Principles of State Policy which reflected the pride of the Indian people in the ideological commitments of their liberation struggle.

    The National Conference harboured completely different views about the constitutional relations between the State and India. They visualised the State as a separate political entity with its own constitutional organisation, independent of the political organisation of India in respect of which the Union of India assumed the responsibility of defence, communications and external relations within the stipulations of the Instrument of Accession. The Conference leaders were motivated by a subtle consideration that since the execution of the Instrument of Accession by Maharaja Hafi Singh, which the Conference leaders derisively described as "Paper Accession", was subject to a plebiscite, the Muslims in Jammu and Kashmir, had assumed a veto over the accession of the State to India. To retain the Muslim right to veto on the accession of the State, the Conference leaders evaded any fresh Constitutional postulates and agreements with the Indian Union, which would replace the Instrument of Accession or would alter its consequences.

    The atmosphere in which Delhi Conference was convened, was pervaded by a deep feeling of uncertainty. A month before the Delhi Conference was held, Sheikh Mohammad Abdullah had thrown a bombshell in the Indian camp when he had told the correspondent of 'Scotsman', that the independence of Jammu and Kashmir would be the most suitable course to end the dispute over Kashmir. In case, Sheikh Mohammad Abdullah maintained, Kashmir was able to establish good neighbourly relations with India and Pakistan, the two countries would settle down to peace and live as good neighbours.

    The National Conference leaders made a tactical retreat mainly to bide time and an agreement was finally reached between them and the Congress leaders. The agreement stipulated:

        (i) that Jammu and Kashmir would be included in the territories of Indian Union;

        (ii)  provisions of the Constitution of India in respect of citizenship, fundamental rights and related legal guarantees, Directive Principles of State Policy and the Federal Judiciary would be extended to the State;

        (iii) the division of powers between the State and the Union of India would be governed by the stipulation of the Instrument of Accession and not the Seventh Schedule of the Indian Constitution;

        (iv) the administrative and the operational control of the State army would remain with the Government of India;

        (v) a separate Constituent Assembly of the State would be convened to draw up the Constitution for the State; and

        (vi) the Constituent Assembly, after it was convened, would determine the future of Dogra rule.

    The agreement was shortlived. Not long after the Conference leaders returned to Srinagar, they made public pronouncements that the Jammu and Kashmir State would not compromise on the issue of autonomy and the Constituent Assembly of the State would evolve a set of separate principles in regard to citizenship, fundamental rights, Principles of State Policy and elections. The Conference leaders gave ample expression to their reluctance to accept the inclusion of the State in the Indian Union and the application of any provisions of the Constitution of India to the State.

    The issues came to a head when Gopalaswamy Ayyangar sent the draft constitutional provisions, he had drawn up for the State, to the Conference leaders for their approval. The draft provisions were based upon the agreement reached in Delhi in May 1949, between the representatives of the Government of India and the Conference leaders. After closed door deliberations, the Conference leaders placed the draft proposals before the Working Committee of the Conference. The Working Committee turned down the proposals promptly.

    Sheikh Mohammad Abdullah sent an alternate draft to Ayyangar which envisaged exclusion of the State from the Indian Union and its constitutional organisation. The draft stipulated the abolition of the Dogra rule and the reorganisation of the State into an independent political entity which would be federated with the Indian Union on the basis of the Instrument of accession. The draft proposed that the separate political identity of the State would be based upon the Muslim majority character of its population, its separate culture and history and the aspirations of its people for economic equality and political freedom which the Constitution of India did not enshrine.

    The Conference leaders were particularly opposed to application of the provisions of the Constitution of India with regard to citizenship and fundamental rights to the State. They disapproved of all forms of safeguards which the provisions of the Constitution of India in respect of fundamental rights embodied, on the pretext that such safeguards would frustrate the resolve of the Interim Government to undertake economic, political and social reforms in the State. The real reasons for the Conference leaders to resist the application of the fundamental rights to the State were, however, different. The right to equality and the right to protection against discrimination on the basis of religion, the right to freedom of faith and the right to property enshrined by the Constitution of India, conflicted with the Muslimisation of the State, the Interim Government had embarked upon, right from the time it was installed in power. The Interim Government enforced the communal precedence of the Muslim majority in the government, the economic organisation and the society of the State with religious zeal. The discriminatory legislation, which devastated the non- Muslim minorities in the State, worst hit among them being the Hindus in the Kashmir Province, controverted the safeguards the Constitution of India envisaged against discrimination on the basis of religion.

    Ayyangar received a jolt when the communication of the Conference leaders, along with the draft proposals drawn by Sheikh Mohammad Abdullah, was delivered to him. On 14 October 1949, he had a long meeting with Sheikh Mohammad Abdullah and Mirza Afzal Beg in Delhi and tried to persuade them to adhere to the agreement they had accepted in the conference at Delhi, earlier in May. The Conference leaders did not relent and told Ayyangar bluntly that they would not accept the application of the Constitution of India to the State.

    Ayyangar failed to face the Conference leaders with firmness. He made a vain bid to placate the Conference leaders by offering to exclude fundamental rights and related legal safeguards, from the provisions of the Constitution of India, which were proposed to be extended to the State in his draft. To his consternation, the Conference leaders rejected the modified draft as well. They informed Ayyangar that the National Conference would not accept the application of any provision of the Constitution of India, including the provisions with regard to the territories of the Union and citizenship and that it accepted only the Instrument of Accession as the basis of any relationship between the State and the future Union of India. When Nehru and other Indian leaders insisted upon the inclusion of the State, at least, in the basic structure of the Constitution of India, the Conference leaders broke off the negotiations and threatened to withdraw from the Constituent Assembly.

    Fearful of a crisis the resignation of Conference leaders from the Constituent Assembly of India would create in Jammu and Kashmir and its repercussions outside India, Ayyangar beseeched them not to take any precipitate action which would adversely affect Indian interests in the Security Council. A breach with the Conference leaders, he believed, would undercut the support India had among the Kashmiri speaking Muslims who Nehru, still believed, would win the plebiscite for India. The Conference leaders, foxy and sly, used the United Nations intervention, ironically enough, invoked by India to secure the withdrawal of the armies of Pakistan from the occupied territories, to foist on the Indian leaders, a settlement which placed the State in a position outside the political organisation of India.

    Nehru was abroad in the United States of America. Ayyangar met the Conference leaders and assured them that the Government of India would accept a constitutional position for Jammu and Kashmir outside the Indian constitutional organisation. He further assured them the Government of India respected the aspirations of the Muslims of the State, and therefore, would accept the institution of a separate Constituent Assembly of the State which would frame the Constitution of the State and also determine the future of the Dogra dynasty. The provisions of the Instrument of Accession, Ayyangar assured them further, would determine the Constitutional relationship between the State and the Union of India.

    Ayyangar drew up a fresh draft in consultation with Mirza Afzal Beg. Abdullah pulled the strings from behind the scene. The revised draft, prepared by Ayyangar and moved in the Constituent Assembly of India, envisaged:

        (i) no provisions of the Constitution of India, except Article 1, would be extended to the State;

        (ii) the division of powers between the Union and the Jammu and Kashmir State would be limited to the stipulations of the Instrument of Accession;

        (iii) a separate Constituent Assembly would be convened in Jammu and Kashmir to frame its Constitution;

        (iv) the President of India would be empowered to vest more powers in the Union Government in respect of Jammu and Kashmir in concurrence with the State Government;

        (v) the President would be empowered to modify the operation of the special constitutional provisions for the State on the recommendations of the Constituent Assembly of the State;

        (vi) 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 draft provisions were incorporated in Article 306-A of the draft Constitution of India. The draft Article 306-A was renumbered Article 370 at the revision stage.

    Article 306-A was circulated in the Constituent Assembly on 16 October 1949. It came up for consideration of the Assembly the next day. Several members of the Constituent Assembly detected an error in the draft provisions, which Ayyangar had overlooked. The draft Article defined the State Government as the "Council of Ministers appointed under the Maharaja's Proclamation dated 5 March 1948." The members of the Constituent Assembly pointed out to Ayyangar that the definition of the State Government envisaged a perpetual Interim Government which would lead to the creation of an anomalous situation of excluding all successor governments from the provisions of the Constitution of India. Ayyangar modified the draft to remove the anomaly and redefined the State Government as the "person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's proclamation dated the fifth day of March 1948."

    The Conference leaders took strong exception to the change in the definition of the State Government. Mirza Afzal Beg threatened to move an amendment to the draft provisions of Article 306-A, seeking to alter the definition of the State Government.

    Beg had actually sought to include provisions in the draft Article 306-A which envisaged a perpetual Interim Government in the State and which could be used as a lever against India in future. He and the other Conference leaders, were disconcerted with the inclusion of the State in the First Schedule of the Constitution of India and wanted some pretext to block the passage of the special provisions in the Constituent Assembly.

    Ayyangar could not remodify the definition of the State Government, in view of strong reaction against it in the Constituent Assembly. He failed to persuade the Conference leaders to condescend to the modifications he had brought about in the draft. When Article 306-A came up for the consideration of the Constituent Assembly, the Conference leaders sulked away and did not join the deliberations on the draft provision till Ayyangar completed his speech. They sat glum when the draft provisions were put to vote and passed unanimously.

    Immediately after the draft provisions were adopted by the Constituent Assembly, they sent a sharp rejoinder to Ayyangar demanding the rescission of Article 306-A as adopted by the Constituent Assembly, failing which they threatened to resign from its membership. Ayyangar was stunned. He sent a plaintive note to the Conference leaders entreating them not to take any action which would prejudice the Indian interests, and wait for Nehru's return. The Conference leaders did not resign from the Constituent Assembly, but as the days went by, they launched a surreptitious and widespread campaign to subvert the special provisions of Article 370.
 

Article 370

Article 370, in its original form, envisaged exclusion of Jammu and Kashmir State from the secular Constitutional organisation of India, and its reorganisation into a separate political identity based upon the Muslim majority character of its population. It imposed a limitation on the application of the provisions of Constitution of India to the State. The division of powers between the State and the Union was also limited to the stipulations of the Instrument of Accession. Article 370, was therefore, not an enabling act. It was, in fact, an act of limitation imposed on the application of the Constitution of India to the State, after the State was included in the First Schedule of the Constitution. The State was included in the First Schedule independent of Article 370.
 

CONSTITUENT ASSEMBLY OF JAMMU AND KASHMIR

    The Conference leaders sought to use the Constituent Assembly of the State to undermine the special provisions of Article 370 as well as the Instrument of Accession. The elections to the Constituent Assembly of the State were held in 1951. Seventy three of the Conference nominees were returned to the Assembly unopposed. Two of the remaining seats in the 75 member Assembly were also annexed by the National Conference.

    In his inaugural address, Sheikh Mohammad Abdullah claimed plenary powers for the Constituent Assembly to determine the final form of the Constitutional relations between the State and the Indian Union, which virtually sought to subject the special provisions envisaged by Article 370 to the verdict of the Assembly. He went further and asserted that the Constituent Assembly, its powers drawn from the people of the State, would determine future affiliations of the State in respect of its accession, in accordance with the options the Cabinet Mission Plan had reserved for the States. In categorical terms, he spelt out that the Constituent Assembly would determine whether the State would remain in India, accede to Pakistan or assume independence. The implications of his statement were clear. Article 370 would be rendered redundant after the Constituent Assembly had taken a final decision on the accession of the State and its constitutional relations with India.

    The exclusion of the State from the Constitutional organisation of India and the insistence of the Conference leadership on the right to plenary powers for the Constituent Assembly, caused concern among the Hindus and the other minorities. The Hindus of Jammu reacted sharply against the exclusion of the State from the Indian Constitutional organisation, which they feared was a ploy to undo the accession of the State to India. They also opposed the abolition of Dogra rule, which they alleged would be used by the Interim Government to break the last link between India and the Jammu and Kashmir State.

    The Hindus of the Kashmir Province, who bore the rigours of the Muslimisation of the State, also expressed strong disapproval of the Conference demand for a separate political organisation of the State. They had been devastated by the enforcement of Muslim precedence, and virtually reduced to a state of servitude. Their voice was stifled by the Conference gendarmes, who had taken over magistracies in the Valley in the aftermath of the invasion and dispensed justice in the name of Islam. The Conference leaders branded the Hindus as the traitors to the freedom of Jammu and Kashmir and accused them of having supported the Dogra rule in its depredations against the Muslims.

    The Hindus made frantic appeals to the Indian Prime Minister and entreated Ayyangar not to accept the exclusion of the State from the Indian political organisation. They pleaded with the Indian leaders that the consequences of the isolation of the State and its reorganisation into a separate political organisation, governed by the commitment of the National Conference to the Muslimisation of the State, would have disastrous consequences in the long run.

    History proved them right. Four decades after Article 370 was enacted, the rickety structure of the political instruments envisaged by it, crumbled under the onslaught of the Muslim secessionist forces, militarised by Pakistan. With that were wiped out the Hindus and the other minorities, along with the hollow slogans of secularism with which the successive governments of India had concealed the ugly face of Muslim communalism in the State.

    The demonstrations made by the Hindus in Kashmir evoked little response from the Congress leadership. Blinded by the partition of India, which had been brought about by the Indian Muslims, rather than the British, they looked to the Muslims of Kashmir as the sole guarantors of secularism in India. They denounced the Hindus and other minorities for allegedly seeking to communalise the traditionally tolerant community of the Muslims and applauded the National Conference for its demand to secure the exclusion of the State from the secular political organisation of India on the basis of the Muslim majority character of its population

    The National Conference used the Indian State to defend Jammu and Kashmir from the invading armies of Pakistan in 1947. After that was accomplished, they sought to use the United Nations intervention to pull out the State from India. In August 1953, the Interim Government was dismissed and a second Interim Government headed by Bakhshi Gulam Mohammad installed in its place. In 1954, the limitations imposed upon the application of the Constitution of India to the State were partially lifted by a Presidential proclamation, in respect of citizenship, fundamental rights, Government of India, division of powers, federal judiciary and elections to the Parliament. Subsequent proclamations extended more provisions of the Constitution of India to the State. The application of the provisions of the Constitution of India, however, were subject to reservations and exceptions, which mutilated their real content.

TERRORISM AND AUTONOMY

In the broad background of terrorist violence which has ravaged the State for the last six years, the demand for greater autonomy and the wild assurances of the successive Indian Governments to support it, has an ominous portent. The restoration of the 1953 status, which is presumed to be the bottom line the autonomy of the State will necessitate restructurisation of the existing Constitutional relations between the State and the Union of India and the withdrawal of the provisions of the Constitution of India, extended to the State, following the Presidential proclamation of 1954. The restoration of the separate political identity of the State on the basis of the Muslim majority character of its population will reinforce the Muslim claim to a veto on the accession of the State to India.

    The insistence on (i) a safer zone to protect the Muslim minority from the dominance of the Hindu majority in India, and (ii) the right of the Muslims to reconstitute the Muslim majority provinces to form a Muslim State, were the two basic planks on which the Muslim League secured the partition of India. The creation of an autonomous state of Jammu and Kashmir placed outside the political organisation of India, will go half-way to substantiate Pakistan's claim on Kashmir. With militant guns booming in the background, India will, sooner or later, be forced to accept a settlement which is acceptable to Pakistan.

    The militarisation of Muslim secessionist forces and their reorientation to Pan-Islamic fundamentalism has added a new dimension to the Muslim separatism in Jammu and Kashmir. The consolidation of Pan-Islamic fundamentalism as a basis for a global strategy to unify the Muslim nations into an independent power in the world, with Pakistan as one of its focal centres, threatens the whole northern frontier of India.

    The demand for autonomy reflects the unconcealed satisfaction with which its proponents are using the ground earned by militants, to pull out the State from the Indian political organisation. With the Hindus in exile, there is no one left in Kashmir to weep for India. On a midnight hour, sometime in future, India might once again awaken to the reality of a second partition.