Article 370: A Matter of Concern for the Republic, not just Jammu & Kashmir

 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

& Kashmir.

 

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

November 1951.

 

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.

 

Princely States

 

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

Dominion.

 

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.

 

Subsequent Events

 

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.

 

Conclusion

 

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.

 

References

 

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:

Sterling.

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.