Chapter
1
Secessionist Movements
ARTICLE 370Maharaja Hari Singh, the ruler of the
Jammu and Kashmir State, acceded to the Indian Dominion on the terms and
conditions envisaged by the Instrument of Accession which was drawn by
the States Ministry of the Indian Dominion. Hari Singh signed the standard
Instrument of Accession, which the rulers of other acceding States had
signed earlier and he bound himself to the same obligations, which the
rulers of the other Indian States had accepted. There was no condition
attached to the accession of the State to India, which provided for any
separate set of constitutional relationships between Jammu and Kashmir
and the Dominion of India. All the acceding States and Unions of the States,
Jammu and Kashmir being no exception, were reserved the right to convene
their own Constituent Assemblies to draw up the constitution for their
respective governments. Indeed, Constituent Assemblies were instituted
in Mysore State and the Surashtra States Union.
Sheikh Mohamad Abdullah and the other
National Conference leaders were in jail when India won freedom and were
released from imprisonment months after the British had left. After their
release the Conference leaders laid no conditions for the accession of
the State to India which they supported, except that they demanded the
transfer of State power to the people, a process to which the Indian Government
was equally committed. The claims made by several State leaders as well
as many national leaders that National Conference had endorsed the accession
of thc State to India on the condition that Jammu and Kashmir would be
constituted into a separate and autonomous political identity on the basis
of the Muslim majority character of its population, is a distortion of
history. The Conference leaders did not lay claim to any immunity from
the future Constitution of India, nor did Nehru or any other Indian leader
give any assurance to the ruler of the State or the Conference leaders,
about any special constitutional position, Jammu and Kashmir would be accorded
in the Indian federal organisation.
The Instrument of Accession was evolved
by the Secretary in the State's Ministry of the Government of the Indian
Dominion, V.P. Menon in consultation with the Viceroy, Lord Mountbatten,
and with the approval of the State's Minister, Sardar Patel. The lapse
of Paramountcy had reduced the Princes to mere shadows of the royality,
they were, during the British rule. The powers they exercised in their
States were enforced by the British authority, and after it was withdrawn,
they were left to the mercy of the State's people, who had all along the
liberation struggle of India, combined themselves to the independence of
India from the British rule and unity of the people in the British India
and the Indian States. The States people inhabited one-third of the Indian
territory and formed one fourth of the population of India.
Lord Mountbatten as well as V.P. Menon
were interested in the protection of the Princes for their own reasons.
They enacted the long and atrocious drama of the integration of the States,
to secure the Princes, the powers and privileges they had enjoyed under
the protection of the Paramountcy. Menon persuaded Patel to accept the
accession of the States on the basis underlined by Cabinet Mission, thus
leaving the Princes in possession of all the powers of the government,
except defence, foreign affairs and communications. Accordingly, the Princes
were invited to accede to the Indian Dominion and delegate to the Dominion
Government, powers in respect of defence, foreign affairs and communications,
leaving the residuary powers for them to administer. The demonstration
effect of the Indian offer to the Princes was so profound that the State's
Minister of Pakistan, Sardar Abdur Nishtar, proposed to accept the accession
of the States on two subjects only i.e. the defence and foreign affairs,
leaving communications as well as state troops, within the control of the
States.
The integration of the States into
viable administrative units proved more difficult than anticipated and
the institution of the Constituent Assemblies in the States was also delayed.
In May 1949, the Premiers of the State's took a stupendous decision in
a Conference at Delhi, in which the Negotiating Committee of the constituent
Assembly participated and entrusted the Constituent Assembly of India,
the task of drawing up the Constitution for the States. The Jammu and Kashmir
did not accept the decision arrived in the Premiers Conference and expressed
its preference to convene a separate Constituent Assembly to draft a separate
constitution for the State. Consequently, a separate meeting was held on
14 May 1949, in Delhi between the representatives of the State Government
and the representatives of the Constituent Assembly in which Sheikh Mohd.
Abdullah, Nehru and Patel participated. In the meeting the Conference leaders
blankly refused to accept the inclusion of the State in the constitutional
organisation of India. They told the Indian leaders, in veiled words, that
they favoured a separate constitutional organisation for the State in view
of the Muslim majority character of its population which they feared would
be subjected to the dominance of the Hindu majority in India. They proposed
the retention of the Instrument of Accession as the basis of the constitutional
relationship between the Union and the Jammu and Kashmir, till the Constituent
Assembly of the State evolved a fresh structure of constitutional imperatives
to replace the existing relations.
The Indian leaders did not approve
of the exclusion of the State from the constitutional organisation of India
and emphasised the paramount importance of bringing the States within the
scope of the framework of the rights and legal Safeguards as well as the
principles of State policy, the Constituent Assembly had devised. Nehru,
told the Conference leaders that the safeguards for the rights and the
principles of State policy had been evolved by the Constituent Assembly
with great pride and there could be no reason to deprive the people of
the State of the protection, the Constitution of India envisaged. In words, laden
with considerable emotion, he stressed that all people of India
would be governed by a uniform set of constitutional postulates and people
of any province or any acceding State would not be denied any rights and
safeguards for equality, liberty and freedom, the objective Resolution
adopted by the Constituent Assembly embodied. He readily agreed to modify
the scheme of the federal division of powers, the Constituent Assembly
had evolved, in respect of Jammu and Kashmir and accepted to reserve a
wider orbit of powers, including the residuary powers for the State Government.
In the scheme of the federal division of powers, the Constituent Assembly
had evolved, the residuary powers were vested with the federal government.
After protracted negotiations, an
agreement was finally reached between the State leaders and the representatives
of the Constituent Assembly which underlined the inclusion of the State
in the basic structure of the Indian Constitution and the application of
the provisions of the Constitution of India to the State pertaining to
the territorial jurisdiction of the Union of India, Indian citizenship,
rights and related constitutional safeguards, principles of State policy,
and the jurisdiction of the Supreme Court. It was agreed upon that the
Constituent Assembly of the State would be empowered to determine the future
of Dogra rule and specify, with the approval of the President of India,
any further extension of the provisions of the Constitution of India to
the State. To avoid any fresh controversy over the agreement, Nehru sent
a rejoinder to Abdullah, specifying clearly the stipulation on which the
agreement was reached.
The agreement was, however, short-lived and the Conference leaders resiled from their commitments after they returned
to Srinagar. The issue came to a head when Gopalaswamy Ayanger draw up
the draft constitutional provisions for Jammu and Kashmir and sent them
to the Conference leaders for their approval. The draft provisions were
based upon the stipulations of the agreement reached in the Delhi conference.
After a short spell of silence and close door deliberations, the National
Conference leaders placed the draft provisions before the Working Committee of
the Conference. The Working Committee promptly turned down the draft
provisions. Sheikh Mohammed Abdullah sent an alternative draft to Ayangar,
which envisaged the complete exclusion of the State from the constitutional
organisation of India. He proposed that the federal relations between the
State and the Union be determined by the provisions of the Instrument of
Accession. The Conference leaders expressed strong reservations about the
application of the fundamental rights and related constitutional guarantees and the jurisdiction of the Supreme Court to the State, on the ground that
the fundamental rights embodied in the Constitution of India conflicted
with the policies of the National Conference, committed to radical social
and economic reforms. Gopalaswamy Ayangar, labouring under the impression
that the Conference leaders would accept his proposals if he1eft out the
fundamental rights and related guarrantees, drew up a fresh draft, in which
reference to the fundamental rights, constitutional guarrantees and the
federal judiciary, was altogether omitted. To his utter consternation,
the Conference leaders rejected the modified draft as well. They refused
catagorically, to accept the application of any provisions of the Constitution
of India to the State. Ayangar, who had senved Maharaja Hari Singh, during
the most fateful years of the history of Kashmir, did not realise the grave
consequences of keeping Jammu and Kashmir out of the scope of the rights
and related judicial safeguards the Constitution of India envisaged for
the Indian people. He was unmindful of the incalculable harm, the fateful
change he had made in his proposals, would do to the minorities in the
State.
Ayangar made fresh efforts to arrive
at an agreement with the Conference leaders who refused to accept any provisions
of the Constitution of India, including the provisions which described
the territorial jurisdiction of the Union. The Conference leaders were
invited to Delhi, the Indian capital, for talks and Nehru joined the parleys.
Nehru distrusted the demand of the National Conference leaders for a separate
constitutional organisation of the State which did not form a part of the
Indian republic and he strongly pleaded with the Conference leaders to
abandon their obduracy. He refused to approve of any constitutional arrangement,
which forced the exclusion of the State from the basic structure of the
Constitution of India. The Conference leaders refused to relent and at
one stage they broke off the negotiations and threatened to resign from
the Assembly. They sulked away closing themselves up in the Kashmir House,
the old mansion, built in the Indian capital, by Maharaja Hari Singh.
Nehru and the other Indian leaders
were caught in between the devil and the deep sea. They could ill-afford
to estrange the Conference leaders at a time when the United Nations intervention,
interestingly, invoked by India against the aggression of Pakistan, had
put the India Government on the cross-roads. Without the support of the
Kashmiri speaking Muslims, who formed the main support base of the National
Conference, India had little hope to win the proposed plebiscite in the
State. Nehru was under pressure of the Security Council to implement the demilitarization
of the State to prepare the ground for the induction of
the plebiscite administration into the State. He quietly relented and sent
Ayangar to assure the Conference leaders that the Government of India would
not press them to accept the inclusion of the State into the constitutional
organisation of India.
Gopalaswamy Ayangar drew up a fresh
draft in consultation with Mirza Afzal Beg, a close associate of Sheikh
Mohammad Abdullah and one among the Conference leaders, who was not favourably
disposed towards the accession of the State to India. The new proposals
envisioned the exclusion of the State from the Indian constitutional
organisation.
The revised draft-provisions were incorporated in Article 306-A, of the
draft Constitution of India. A last minute controversy cropped up between
Ayangar and the Conference leaders when the draft Article 306-A, came
up for consideration in the Constituent Assembly. The Conference leaders
demanded the inclusion of the provisions in the draft Article 306-A which
recognised the Interim government of the state as a government in perpetuity.
Many prominent members of the Constituent Assembly pointed to Ayangar the anomalous
situation, the recognition of a government in perpetuity would
create. They advised Ayangar not to accept the position taken by the Conference
representatives. Accordingly, when Ayangar conveyed his inability to the
Conference leaders to incorporate provisions envisaging a government in
perpetuity, they reacted in anger. They again sulked away and did not join
the proceedings of the Assembly till Ayangar had delivered half of his
speech on the draft Article. Inside the Assembly they sat glum and did
not utter a word in support of the draft provisions. Beg had informed Ayangar
that he would move an amendment to the draft provisions. Ayangar watched
the proceedings with concern as any controversy between the Indian Government
and the Conference leaders in the Constituent Assembly, was bound to have
a deep impact on the Indian stand in the United Nations. Nehru was in the
United States and perhaps, he expected the Conference leaders to make spirited
statements in the Indian Constituent Assembly, commending the accession of the State to India as well as the way Indian Constituent Assembly had
accomodated a Muslim majority State in the Constitutional framework it
had evolved for the Princely States. Beg did not move the amendment. The
draft provisions of Article 306-A were adopted by the Constituent Assembly
without any dissent.
Immediately after the proceedings
of the day were over in the Constituent Assembly, Beg wrote to Ayangar
demanding the annulment of the Article 306-A, failing which he threatened
to resign from the Assembly along with the other representatives of the
State. Ayangar was stunned. Nehru was abroad in the United States as he
could hardly help to reverse the decision of the Assembly, he wrote back
to Beg plaintively not to resign and wait for Nehru's return. The Conference
representatives did not resign.
Article 306-A was renumbered Article
370 at the revision stage. Jammu and Kashmir State was included in the First
Schedule of the Constitution of India which described the territories of
India. No other provision of the Constitution of India was extended to
Jammu and Kashmir. An explicit limitation was placed on the application
of the Constitution of India to the State, except in regard to the provisions
of the Seventh Schedule corresponding to the subjects by the Instrument
of Accession to the Indian Dominion. Accordingly, the power of the Union
in respect of Jammu and Kashmir were limited to the subjects in the Instrument
of Accession viz. foreign affairs, defence and communication.
Article 370 of the Constitution of
India envisaged provisions which stipulated (a) limitations on the application
of the Constitution of India to the State, (b) the division of powers between
the Union and the State, (c) extension of the provisions of India to the
State, (d) modification and termination of the operation of Article 370,
and (e) the institution of a separate Constituent Assembly for the State.
The only part of the Constitution of India which was extended to the State
independent of Article 370, was the First Schedule of the Indian Constitution,
which described the territorial jurisdiction of the Indian Union. Jammu
and Kashmir was listed in the First Schedule and included in the territories
of India. As a matter of fact, the State was included in the First Schedule,
in consequence of the Instrument of Accession executed by the Ruler of
the State which accomplished the irrevocable integration of the State in
the Dominion of India. The territorial jurisdiction of the Indian State
was created by the Independence Act of 1947, and Instruments of Accession
executed by the rulers of the erstwhile Princely States. The Constitution
of India described the territories of the Indian State, constituted by
the transfer of power to the Indian Dominion on 15 August 1947 and the
accession of the States, that followed in due course. The inclusion of
the State in the First-Schedule of the Constitution of India actually placed
it alongside the other Princely States which had acceded to India.
The accession of the States involved
the consent of the States to join either the two Constituent Assemblies
which had been created after the partition was accepted. The Cabinet Mission
underlined the adherence of the States to a United India and their participation
in the Constituent Assembly of India which was convened long before the
partition was envisaged and put into effect. The participation of the States
in the Constituent Assembly of India was, a consequence of the accession
of the States. The accession of the States, brought about the irrevocable
unification of the Princely States with the State of India, irrespective
of whether they accepted to become a part of any future constitutional
organisation of India. The integration of Jammu and Kashmir into the State
of India was, therefore, brought about by the accession of the State to
India and not by Article 370.
The Constitution of India did not
constitute the State of India. In fact, the Constitution of India was only declaratory
of the state of India. The Indian State existed prior to the
Constitution of India, and it would not be dissolved if the Constitution
of India was abrogated nor would the Jammu and Kashmir fall apart if Article
370 was rescinded.
Had Article 370 not been incorporated
in the Constitution of India, the Jammu and Kashmir would have been placed
in the constitutional organisation of India in the same manner in which
the other federating States, grouped into Part B States, were placed in
the constitutional organisation of India. The limitation imposed by Article
370 explicitly restricted the application of the Constitution of India
to Jammu and Kashmir Article 370 was by no means an enabling act. There
was only one enabling instrument which the Indian Independence Act created
and that was the Instrument of Accession. The participation of the States
in the Constituent Assembly of India was an inevitable consequence of the
accession of the States. The oft-repeated assertion that Article 370 was
an enabling act, was politically motivated and used by successive State
governments to perpetuate the unrestricted power to rule by decree, vested
in them, by Article 370.
Evidently, Article 370 was not in
any way connected with the so-called autonomy of the State. In fact, it placed
the State outside the federal structure of India, the federal division
of powers between the Union and the States and the jurisdiction of the
federal judiciary, including its power of judicial review, which guaranteed the autonomous identity of the States in India. Autonomy for the Indian
States could only be visualised within the Indian federal structure and
not outside the division of powers, it envisaged.
Provisions were incorporated in Article
370 for convocation of a separate Constituent Assembly for the purpose
of drafting the Constitution of the State. The stipulations of Article
370, in regard to the Constituent Assembly of the State, left no doubt
about the fact that the Constituent Assembly of the State was a creature
of the Constitution of India and drew its powers from the same source.
Several of the Conference leaders claimed plenary powers for the Constituent
Assembly. The issues they raised were more involved and perhaps they did
not accept that the institution of the Constituent Assemblies in the erstwhile
Princely States, followed as a consequence of the accession of the States
to the Indian Dominion.
The claim of the Conference leaders
to plenary powers for the Constituent Assembly, which in the following
years became the bane of a serious controversy between the National Conference
and the Indian Government had a subtle and dangerous import. Plenary powers
would vest in the Constituent Assembly a veto not only on all constitutional
relationships between the Jammu and Kashmir State and the Union of India,
but also on its accession to India.
Article 370 was included in the transitional
provisions of the Constitution of India and was therefore, presumed to
be of transitory nature. Indeed provisions were incorporated in Article
370 by virtue of which the President of India was empowered to modify or
terminate the operation of its provisions by a notification, provided recommendations
to that effect were made by the Constituent Assembly of the State. The
President was empowered to extend the application of the provisions of
the Constitution of India to the State by an order issued by him in concurrence
with the State government. Presumably the temporary provisions, envisaged
by Article 370, were meant to remain in operation only so long as the Constituent
Assembly of the State completed its task. Evidently, the founding fathers
of the Indian Constitution could not have visualised a perpetual Constituent
Assembly for the State.
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