Article 370: A Matter of Concern for the Republic, not just Jammu & Kashmir
Sunday, October 18, 2020
Article 370: A Matter of Concern for the Republic, not just Jammu & Kashmir
--- Badri Raina
At a time when the State is sought to be shrunk to a revanchist
monochromatic unity, it is gravely myopic to think that issues aroundArticle
370 of the Constitution of India concern just the one territory of Jammu
The post-Independence Union that was conceived and formulated
by framers of the Indian Constitution was a Federal Union. In forging a
new independent nation, the framers were cognisant of the unprecedented
diversity of both the Indian polity and of specific forms of antecedent
political formations that obtained in colonial India.
Refusing sectarian pulls and voices within the Constituent Assembly,the
vanguard among the framers opted for a modern nation based on the
principles of inclusivity and secularism and scientific temper enshrined
finally in universal adult franchise.
The ideals of freedom, justice and equality came to be the bedrocks
of the new India, and, inspired by the formulations of the Session of
the Karachi Congress (1931), the Preamble to the Constitution came to
embody the soul and substance of the anti-colonial freedom movement.
Nowhere, perhaps, was this vision of a future India more eloquently
encapsulated than in the inaugural speech that Sheikh Mohammed
Abdullah gave to the Constituent Assembly of Jammu & Kashmir on 5
In that historic – now tragically historic – speech, Abdullah explained
at length how and why he had come to declare the allegiance among three
options that confronted the then princely state of Jammu & Kashmir.
In reading him backward, he noted how Independence could not be
a viable option. After all, he instructed, the state had been independent
between 15 August and 22 October 1947, and yet a helpless victim to
invasion from tribals supported by the new Dominion of Pakistan. Given
that the state bordered several countries, how was it to secure its physical
independence if it opted for independent status. Nor, he noted, was it in
any position to secure a liberated economic life for its oppressed peoples
without access to investment and markets.
(It needs to be remarked that, despite this ‘independent’ status, between
15 August and 22 October, Kashmiri Muslims did not join ranks with
the invading fellow-Muslims from Pakistan, nor did it occur to them to
either convert or kill non-Muslim Kashmiris. If anything, all communities
marched together on the streets of Srinagar, shouting slogans like Hamla
aavar khabardar/Hum Kashmiri hein tayaar; and Sher e Kashmir ka kya
irshaad/Hindu, Muslim, Sikh itihaad. This magnificent inter-religious unity
was wholly attributable to the ideology of the National Conference, which
also drew sustenance of a deep spiritual kind from the profoundly secular
culture of Sufi Islam. It is important to recall this in view of the unjustified
calumny that Kashmiri Muslims have had to suffer for what the radicalised
Jihadis did in the January of 1990.)
As for the Pakistan option, the Sheikh noted that Pakistan was in the
end a feudal formation ruled by a ‘clique’ and without a Constitution.
Presciently, Abdullah understood that such a state was likely to remain
enmeshed in medieval forms of governance and life – a prospect that the
new Kashmir could have no truck with.
Coming to India, the Sheikh underlined that ‘the character of a state
is in its Constitution’. He explained to the Assembly how India had given
to herself a Constitution based on ‘secular democracy’ foregrounding the
ideals of freedom, justice and equality without regard to sectarian identities.
This met the argument that the Muslims of Jammu & Kashmir would not
be safe in a Hindu-majority India. He went on to note that religion could
never be a basis for building a modern State, that religion was essentially
a ‘sentiment’ that could not meet the requirements of modern nationbuilding.
He underscored a telling insight: how, in fact the alliance of a socially composite
Jammu & Kashmir would decisively strengthenthe secular future
of new India. He cited Gandhi when the latter remarked
‘I lift my eyes to the hills, and there is my hope.’
These sentient observations reinforce a major aspect of the contentions
surrounding the partition of India. Although it is true that the Indian
National Congress never accepted in principle the theory of ‘two nations’,
it did acquiesce in a division based on that theory, no matter how much
Gandhi and others tried to forestall that division.
The event that lent ringing credibility to the ideals of the Congress and
the freedom movement led by it was the Accession, eventually, of the only
Muslim-majority state within the divided India.
The debt that a liberal-secular India thus owes to Kashmir is not often
recognised with the force with which it deserves to be acknowledged – a
fact that in retrospect lends tragic piquancy to the post 5 August 2019
dismantling of the vision which had made all that possible.
When the doyen of historians A.G. Noorani therefore speaks of
Article 370 encapsulating the ‘Constitutional History of Jammu & Kashmir’,
we need that truism to be extended to read that impugned Article as having
defined the constitutional history of the new India as well. And, its reading
down as the dismantling of a vision of the new Indian State with the
retrograde purpose to alter fundamentally that vision of the Indian State.
In order fully to understand the profound significance of Article 370,
certain histories that led to its making need to be surveyed. An irrefutable
fact of the history of Jammu & Kashmir between its purchase by the Dogra
Rajput dynasty from the British after the defeat of the Sikhs in the first
Anglo–Sikh war was the oppressive nature of its rule – most so with respect
to the Muslim natives of the state.
Whereas Pandit Kashmiris had an enabling hold on the educational
infrastructure of the state, and therefore a fairly secure place in state
services, Muslims had neither land-holdings nor education. If anything, the
despicable practice of begar continued to prevail whereby Muslim labour
could be asked to undertake any arduous work without payment.
Under Dogra rule, exorbitant taxations were levied on Muslim shawl
weavers, reducing their exertions to levels of destitution. No political
activity was allowed. When Sheikh Abdullah returned with a Master’s
degree in Chemistry from Aligarh Muslim University, looking at this
zeitgeist, he formed what came to be called a Reading Room Party – mostly
of progressive individuals.
The next year, 1931, saw the watershed atrocity committed by the
state police on a crowd of Muslims gathered outside the Central Jail in
Srinagar at the trial for sedition of one Abdul Qadeer. In that police action,
22 Kashmiri Muslims fell to police bullets. Riots ensued, in which some
Hindu, including Pandit establishments, were looted and burnt.
In 1932, Abdullah along with Chaudhary Ghulam Abbas forged the
Muslim Conference. The fact that membership was available only to
Muslims suggests that at this stage Abdullah’s view was that the contention
was essentially one between the Dogra-ruled state and its Muslim populace.
In 1937, when Savarkar became the head of the Hindu Mahasabha
and made an open declaration at his inaugural speech that India was two
nations, Hindus and Muslims, Sheikh Abdullah met Jawaharlal Nehru for
the first time.
The friendship that developed transcended mere personal
affinities. Simultaneous with the beginnings of the Progressive
Writer’s Movement – one that was in the years to come to become a
cultural bedrock of a progressive–secular revolution of ideas, Abdullah’s
exposure to the new trans-religious axes of anti-colonial resistance resulted
in the transmogrification of the Muslim Conference into the National
Conference in 1938. Membership now came to be open to all non-Muslim
Kashmiris as well.
To put this development in another perspective, the National
Conference came to be the second secular political formation after the
establishment of the Indian National Congress, barring of course the
establishment of the Communist Party of India in 1925. The unique
feature of the jettisoning by Abdullah of the earlier Muslim Conference,
nonetheless, was that its origins lay in the new, progressive stirrings of
Muslims against the dominance of the Muslim League.
While the Pakistan Resolution was announced in 1940, the National
Conference held on to its progressive-secular conviction despite the
persuasions of the League.
In 1944, two notables visited the Valley – Jinnah and Maharaja
Hari Singh (back from his obligations as a member of the International
War Cabinet). Jinnah received enthused reception from the Muslim
Conference, now led by Chaudhary Ghulam Abbas, and his followers; but
while Abdullah was present at the reception given to him at Pratap Park, the
two remained distant. To Hari Singh the National Conference presented
a text of the revolutionary Naya Kashmir programme – a manifesto of
liberatory provisions far in advance ideologically of anything even the
Indian National Congress had envisaged then. Forged largely by a group
of individuals leaning heavily to the Left, it came to be attributed to what
Stalin had proposed for the Soviet Union.
In early 1946, the National Conference gave the call of ‘Quit Kashmir’
to the Dogra monarch; Abdullah was promptly charged with sedition and
jailed. Nehru who went to Kashmir to plead on his behalf was arrested as
well and forced to leave the Valley. The Muslim Conference did not support
the ‘Quit Kashmir’ call. With Abdullah in jail, the Muslim Conference, now
an affiliate of the Muslim League, began to have free rein. Jinnah instructed
it not to antagonise the Maharaja, but to persuade him to veer round to the
objectives of the League.
As Mountbatten arrived in India as the last Viceroy and announced
his Partition Plan on 3 June 1947 (amid communal killings that were now
underway), the fate of the princely states came to the fore. Abdullah was
released from prison in late 1947 and promptly rejected the ‘two nation’ thesis.
The States Department of the interim Government of India led by Sardar
Patel as Home Minister and piloted by V.P. Menon gave these states the
option to join with the Dominion of India, conceding the three jurisdictions
of Defence, Foreign Affairs and Communications to the centre. They were
also encouraged to set up their Constituent Assemblies.
Barring three states – Saurashtra Union, Travancore–Cochin and
Mysore – all others failed to establish assemblies, and in course of time
agreed to incorporate the Indian Constitution in full as their own in what is
called a full ‘merger’. So did Saurashtra soon enough. The other two came
to merge with India as the first national elections took place in 1952.
Three recalcitrant states remained: Junagarh, Hyderabad Deccan and
Jammu & Kashmir. Consistent with Gandhi’s position voiced to Hari Singh
on 1 August 1947 that he decide on Accession with dispatch with ‘the wishes
of the people’, Mountbatten and Nehru offered the recourse of seeking
popular wishes of people in the three states that had not acceded to either
Jinnah refused. Knowing that Junagarh and Hyderabad had Hindumajority
demographies, the idea was clearly inimical to him. And with
regard to Jammu & Kashmir, he was willing to hold a referendum only
if it was held under the aegis of the two Governor-Generals of India and
Pakistan, himself and Mountbatten. He voiced the view that with Abdullah
at the helm (Abdullah had been appointed Chief Administrator of Jammu
& Kashmir in late October as the invasion from Pakistan was underway),
he could not expect a fair (sic) result. This position was rejected by Nehru.
Patel was clearly more interested in Junagarh and Hyderabad Deccan,
and explicitly said to Liaqat Ali Khan, Prime Minister of Pakistan, that if
he stopped demanding independence for Hyderabad and the accession of
Junagarh, he could have Kashmir (see Shankar 2011 and Gandhi 2011).
Despite acceding to Pakistan on 17 August 1947, the Nawab of Junagarh
had to flee to Karachi as police action followed in Junagarh. Whereas Patel
had opposed a referendum in Jammu & Kashmir, he asked for and got one
in Junagarh which went overwhelmingly in favour of the Indian Dominion.
Hyderabad Deccan was of course a more protracted story.
Jammu & Kashmir
Since the States Department had invited the princely states to send their
representatives to the Indian Constituent Assembly, representatives from
Jammu & Kashmir led by Abdullah met Sardar Patel at his house on 15 May
1949. The Jammu & Kashmir delegation made the demand that any future
arrangement constitutionally be based on the same principles on which the
Accession of the state had been obtained. Over negotiations that stretched
for some five months, the Indian cabinet (of which Shyama Prasad Mookerji
was a member) agreed to the demand, and work began on formulating the
terms of the ‘Special Status’ to be accorded to Jammu & Kashmir.
A draft was prepared by Gopalaswamy Ayyangar (who had been a
Dewan of Kashmir) in coordination with Patel. Nehru was travelling abroad
in America. Ayyangar wrote a note to Patel suggesting that he indicate to
Nehru his ‘approval’ of the draft. Patel wrote to Nehru on 3 November
1949, how despite volatile opposition both in the CWC and the Constituent
Assembly, he had ‘prevailed’ in getting agreement to the provision of
‘Special Status’. The provision became Article 306, and later Article
370. Although the Article was situated in Chapter XXI (Temporary and
Transitional Provisions), this was so because as per the stipulations of the
Article in toto, all laws that were sought to be applied to the state of Jammu
& Kashmir, barring in the three areas that remained with the centre, had to
have the concurrence of the Jammu & Kashmir Constituent Assembly. That
Assembly came into being two years after the adoption of the Article. The
Article could be abrogated only with the concurrence of the J&K Constituent
Assembly, but that did not happen since the J&K Constituent Assembly
dissolved itself in 1956 without asking for such abrogation. In legal parlance,
and according to most respected and unbiased legal luminaries, Article 370
thus became a permanent provision of the relations between the state and
the centre. According to this reading, what the government did on 5 August
2019 was wholly unconstitutional. What the Supreme Court may now opine
in the matter is another thing, especially at a time when popular faith in the
highest judiciary has come to be undermined.
The fact that Article 370 remained embedded in and drew legitimation
from the terms of the state’s Accession to the Indian Dominion, there is
validity in the argument that rescinding this Article was tantamount to
rescinding the Accession itself.
The matter settled, elections for the Jammu & Kashmir Constituent
Assembly were held in 1951. A 75-member Assembly (with 25 seats reserved
for occupied Kashmir) heard the address made by Sheikh Abdullah referred
to at the outset of this article.
Irked chiefly by the two decisions of the Abdullah government – land to the
tiller, and demand for the abolition of the monarchy – the Praja Parishad
in Jammu launched an agitation against the ‘Special Status’ provision,
especially when these came to be codified in the Delhi Agreement signed
between the Abdullah government and the centre. This sealed the covenant
of autonomy for the state of Jammu & Kashmir. The Parishad soon merged
with the newly-formed Jana Sangh, founded by Shyama Prasad Mookerji.
Nehru held the view that the Delhi Agreement was a solemn covenant
with the people of the state and would not be rescinded. On 9 January
1953, in a tripartite correspondence with Nehru and Abdullah, Mookerji
suggested that autonomy may be limited to the Valley, but Jammu and
Ladakh be fully integrated with the Union. Abdullah pointed out in
his reply that Pakistan and many other forces were looking precisely to
such divisions to cause mayhem in the state.
In the interim, a 45-page report on ‘Regional Autonomy’ had been
submitted to the protagonists, detailing how autonomy as enshrined in the
Delhi Agreement could be further devolved to all the regions of the state.
On 17 February Mookerji wrote to Nehru and Abdullah, accepting the
proposal of autonomy in full, including the principle of devolved regional
autonomy. Nehru appealed to the Parishad to withdraw the agitation in
the interests both of the state and the nation at large. The agitation was
withdrawn. But, alas, it was soon to be resumed on a nod from Nagpur.
Had the mutually agreed position on autonomy as stated above been
allowed to operate, it may be said with confidence that there may not have
been a ‘Kashmir problem’ in subsequent years. But it began to dawn on
Abdullah that the confidence he had so resolutely outlined to the Jammu
& Kashmir Constituent Assembly on 5 November 1951 may have been
premature and naïve.
Where, in his address to the United Nations Security Council on 5
February 1948, he had ringingly upheld the secular future of Kashmir
with India and expressed disdain for the idea of a religion-based state, the
sectarian agitation in Jammu, now squarely steered by the Rashtriya
Swayamsevak Sangh (RSS), brought back apprehensions of yet another
era of oppression under a renewed nationally led Hindu majoritarian rule.
Indeed, the address that he had prepared for a public meeting –
undelivered as his arrest followed – spoke poignantly to the question he
was being asked by young Muslims: what would be their future in a
Hindudominated India (see text in Puri 1981).
The folly of his arrest truly inaugurated the ‘Kashmir problem’, as in
subsequent years democracy in any real sense came to be continuously
denied to Kashmiris, allowing ‘foreign’ powers to enter the contention in
a concerted way, both on the ground in the state and in international fora.
The revocation of Article 370, then, signals the termination of a concept
of the republic that drew its strength from democratic accommodations of
diverse regions, keeping in mind their specific histories and aspirations.
With respect to Kashmir, this shutting down of the Principle of
Autonomy, solemnly agreed to by the State, has remained suspiciously rooted
in a communal vision, reason why such provisions of autonomy continue
to be happily in place in many other parts of the republic to this day. It may
be recalled that the first ever post-Independence demand for secession from
the Union was to come not from the Muslim-majority state of Jammu &
Kashmir but from the then Madras state, and resoundingly expressed by
Annadurai in his maiden speech in parliament in 1962. Yet, that event did
not lead to any traumatic upheavals or suspicions but was correctly seen as
issuing from concrete and democratically justifiable local perceptions of the
threat of majoritarian cultural oppression. And a responsive centre in time
came to address that problem in a constructive spirit of federalism. Sadly, the
demographic profile of Jammu & Kashmir has been allowed to vitiate similar
aspirations of local culture and history in that state.
This is proof that the current dispensation, in having revoked Article 370,
and, one may add, coterminously floated the idea of citizenship based on a
religious principle as through the Citizenship Amendment Act, seeks not just
to alter the character of state and polity in Jammu & Kashmir, but indeed
throughout the land in conformity with the long-held paradigm of citizenship
and nationhood as enunciated first by Savarkar and then by Golwalkar.
As to the so-called economic/developmental justifications proffered
by the central government in favour of ‘full integration’ of the state, many
authoritative accounts have appeared detailing how, in fact, thanks in
large measure to the autonomy thus far enjoyed by Jammu & Kashmir,
its developmental indices, in education, in health services, in per capita
income, in women’s participation and role in nation-building, have been
well in advance even of the coveted state of Gujarat.
What is heartening is that, in opposition to the regressive measures
undertaken in recent months and years by the central government,
a fervour and determination has been generated even among Muslim
housewives in favour of a non-sectarian citizenship and a progressive
nationalism embedded in the preamble of the Constitution of India.
A long battle lies ahead of citizens at large who have awakened to the
lurch of the republic towards a theocratic right-wing. What might inspire the
efforts of such citizens is what the late Sheikh Mohammed Abdullah wrote
in his posthumously published autobiography, Atish e Chinar (1985): that
although after so strongly advocating the option of going with India in 1951
he had not only been accused of being anti-national but Kashmiris had also
gone through hell, yet, thirty years after, he still held to the position he had
then taken – to go with India (see Kotru 1986).
What could be a greater inducement than this declaration for
common Indian citizens not infected with the communal virus to continue
to struggle to defend and protect the legacy for which the great Abdullah
lived and died. However the current central dispensation may be scheming to erase the
National Conference from the political life of the state, one may venture
the thought that this nefariously retrograde agenda is unlikely to see the
light of day.
Abdullah, Sheikh Mohammed (1985), Atish e Chinar, Srinagar: Ali Mohammed & Sons.
Kotru, M.L. (1986), ‘Book review: “Aatish-E-Chinar” by Sheikh Mohammed Abdullah’,
India Today, 15 May.
Noorani, A.G. (2011), Article 370: Constitutional History of Jammu & Kashmir, New
Delhi: Oxford University Press.
Puri, Balraj (1981) Kashmir: Triumph & Tragedy of Indian Federalisation, New Delhi:
Gandhi, Rajmohan (2011), Patel: A Life, Ahmedabad: Navajivan Publishing House.
Shankar, V. (2011), Sardar Patel: Selective Correspondence 1945–1950, Ahmedabad:
Navajivan Publishing House.
Badri Raina taught at Delhi University and University of Wisconsin,
Madison, and is the author of Kashmir: A Noble Tryst in Tatters.