Jammu & Kashmir : a part or apart II

Continued from Jammu & Kashmir : a part or apart I ....

After presenting the background of the Kashmir dispute in section I, I will explain the implementation of Article 370 in this blog - its effects and contribution to the story of Kashmir.

Article 370 : The Masked Tyrant

On October 26, 1947, Hari Singh, the Maharaja of Kashmir, signed the Instrument of Accession of Kashmir to the Dominion of India. Under this Instrument, he surrendered the jurisdiction of three subjects - Defence, External Affairs and Communications to the Central Government. Lord Mountbatten, presumably with the knowledge and consent of Pt. Nehru, unwisely insisted that the final decision of the accession would be ratified by the Constituent Assembly of Jammu & Kashmir.

Was it not a blunder committed by Nehru to follow Lord Mountbatten blindly?
When neither Maharaja Hari Singh nor Sheikh Abdullah demanded the ratification of the Instrument of Accession by the Constituent Assembly of Jammu and Kashmir, it was wrong on the part of the Government of India to insist on the ratification. It was a Himalayan blunder committed by Nehru.

For the transitional period, from the date of execution of the Instrument of Accession to its ratification by the Constituent Assembly of Jammu and Kashmir, some temporary provisions in the form of Article 370 were made in the Indian Constitution. Under the Article, those parts of Indian Constitution which pertained to Defence, External Affairs and Communications could be extended to Kashmir in consultation with the state government. The parts that dealt with subjects other than those could be extended with the concurrence of the state government. The executive of the state was thus being given not just a legislative function, it was being given a legislative function in regard to the Constitution under which the people of the state were to live. This is how Article 370, which made the bulk of the Indian Constitution inapplicable to Jammu and Kashmir, was incorporated in our Constitution.

During the annexation of states to the Union of India, Sardar Patel had been paying little attention to Kashmir. But once Pakistan invaded the Valley, and as the situation went out of control, the Sardar stepped in, and it was his clarity and firmness, along with the valour of our Army and Air Force which saved the Valley. Soon enough Pt. Nehru inducted Gopalaswami Ayyangar as Minister Without Portfolio to help him take charge of policy regarding Kashmir. The Sardar had not been consulted regarding Ayyangar's induction, although it was to impinge directly on his responsibilities. This increased the rift between Nehru and Sardar and led to the resignation of Sardar from the government. With Mahatma Gandhi's intervention the Sardar was made to stay.

Sheikh Abdullah apprehended that if Hindus, who migrated from Pakistan to India, were allowed to settle in the state of Jammu and Kashmir, they would transform the majority of Muslims in the valley into minority. Hence he pressurized Pt. Nehru to get Article 370 incorporated in the Constitution of India, which harmed the entry of non-Kashmiris into the State of Jammu and Kashmir. Thus the nefarious plan to continue outnumbering Hindus in the valley was fulfilled by the dint of Article 370. If pernicious, Article 370 had not been incorporated in our Constitution, Hindu immigrants would have settled in the valley to reduce the Muslims to minority, and the problem of Kashmir would have been solved for ever.

Pt. Nehru had finalised the draft Article in consultation with Sheikh Abdullah. The Sardar had not been taken into confidence. The draft finalised, Nehru proceeded abroad on a tour, instructing Ayyangar to see the draft through the Constituent Assembly. Within the Congress party, there was a strong body of opinion, including Sardar, which looked askance at any suggestion of discrimination between the Jammu and Kashmir state and other states as members of the future Indian Union and was not prepared to go beyond certain limits in providing for the special position of Jammu and Kashmir. When Ayyangar put the draft before the party meeting, the announcement was followed by a storm of angry protests from all sides. Both Ayyangar and his proposal were torn to pieces by the party.

Later, Ayyangar called on Sardar for help, explaining the genesis of the proposals he had put before the party and appealing to the latter to come to his rescue. The Sardar convened a meeting of the Congress Executive the following day. The meeting was one of the stormiest the party had ever witnessed, the opinion in opposition to the Article was forcefully and even militantly expressed and the issue even brought in the sovereignty of the Constituent Assembly to draw up the Constitution without being tied down to the apron-strings of the Kashmir State Constituent Assembly. That was the strength of opinion in the party against the draft Article.

The Sardar intervened "to plead that because of the international complications a provisional approach alone could be made leaving the question of final relationship to be worked out according to the exigencies of the situation and the mutual feelings and confidence that would have been by then created". Later the Sardar told his private secretary that he had done so because in Nehru's absence Ayyangar was acting under orders and had the Sardar opposed him, people would have said that he was taking revenge on Nehru's confidant when he was away. Ayyangar had appealed to him for help, so how could he let him down in the absence of his Chief.

When the draft Article was placed before the Constituent Assembly, no substantial objections were tabled. Sheikh Abdullah, who had jointly devised the provisions with Nehru, had tried, once Nehru had left on his tour, to stiffen the provisions further in favour of the Kashmir Government, which of course meant himself, saying that he had to discharge his duty towards his people, and that in any case the Working Committee of the National Conference was not agreeable to the draft. Ayyangar had capitulated, altered the draft and reported the change to the Sardar. The Sardar shot down the change, writing to Ayyangar, "I do not at all like any change after our party has approved of the whole arrangement in the presence of Sheikh Sahib himself. Whenever Sheikh Sahib wishes to back out, he always confronts us with his duty to the people. Of course, he owes no duty to India or to the Indian Government, or even on a personal basis, to you and the Prime Minister who have gone all out to accommodate him." And added, "In these circumstances, any question of my approval does not arise." Thus, the changes were shot down but the original draft went through without a murmur.

The Sardar died just a few months later on 15 December 1950. Barely two years after his death, on 24th July 1952, when the Article came in for criticism in the Lok Sabha, in defence Nehru took the stand that the Article was dealt with by Sardar in his absence and he was not responsible for it. He said "This came to an end in November, I think, of 1949 when we were designing our Constitution in the Constituent Assembly. Well, we could not leave everything quite vague and fluid there. Something had to be stated in our Constitution about Jammu and Kashmir State. That problem had to be faced by Sardar Patel. Now, he did not wish to say very much, he wanted to leave it, we all wanted to leave it in a fluid condition because of these various factors, and gradually to develop those relations. As a result of this, a rather unusual provision was made in our Constitution relating to Jammu and Kashmir. That provision is now in Article 370 in Part XXI..."  Thus, the authorship of that to which the Sardar was so emphatically opposed was attributed to the Sardar!

Pt. Nehru, on 27th November 1963, during the Question Hour in the Lok Sabha  said, "Our view is that Article 370, as is written in the Constitution, is a transitional, in other words a temporary provision. And it is so........As a matter of fact as the Home Minister has pointed out, it has been eroded, if I may use the word, and many things have been done in the last few years which have made the relationship of Kashmir with the Union of India very close. There is no doubt that Kashmir is fully integrated.......So we feel that this process of gradual erosion of Article 370 is going on......"

Article 370 was not a device to give Kashmir some special status vis-a-vis India. It was a device for extending provisions of the Constitution of India a step at a time to Kashmir. The very text of the Article makes this manifest. By the mechanism of this Article, part after part of the Constitution of India was to be extended to Kashmir.

It was to be a temporary device - one that was to be used for this purpose till a Constituent Assembly of the State could be constituted and could, as was expected then in Delhi, do the job in one go. The members of the Constituent Assembly who were so insistent on ensuring democratic norms and control in every nook and cranny of the Constitution enacted this manifestly undemocratic arrangement because the device was to be in use for a very short while only. How different parts of the Constitution would apply to Kashmir was to be determined by a constituent assembly of the state, and this was to be constituted soon.

There was tremendous opposition to the Article within the Congress itself. The Congress was militantly opposed to this facility being made available in the case of Kashmir. But for the Sardar setting his better judgement aside, and that for reasons which had nothing to do with the merits of the Article, the provision would have been scotched by the Congress itself.

And today, to even ask that this temporary provision be removed is to go back on "our solemn commitment to the people of Kashmir", is to be communal. The reasons for this are:

The first reason is crass ignorance - the average Congressman has not read accounts of his own party's position on the matter, he knows nothing of what was said in the Constituent Assembly or Parliament, nor does he know anything about what the very men - Pt. Nehru and Sardar Patel - whose photographs he hangs on his walls had said and thought on the matter. So someone tells him there was "a solemn commitment" and he starts shouting there was "a solemn commitment".

The second reason is that the demand for scrapping this Article has been espoused most of all by the BJP and its predecessor the Bharatiya Jan Sangh. Every other party has therefore come to espouse its retention. As by their (all other parties' ) definition, the BJP is "communal", the demand that the Article be scrapped, espoused as it is by the communal party, is communal! And, ipso facto, asserting that it must not be scrapped is secularism!

The third reason is simplicity itself, and it is fatal. The transformation of the Article - from being a very temporary provision to one keeping which unchanged is our "solemn commitment" - is but an aspect of the progressive enfeeblement of our State. As the country and its rulers have lost the capacity to enforce its laws, they have dressed up that incapacity in principle.

Consequences of Article 370 :

 

1) Denial of fundamental right to settle permanently:

  Article 370 allowed continuation of archaic “State Subject” law . In the 19th century, this law prevented British colonialists from settling in state or buying property

  Under Article 19 (1) (e) and (g) of the Indian Constitution, it is fundamental right of the  citizens of India to reside and settle permanently in any part of the country, and to practice any profession or carry on any occupation, trade or business. But Article 370 deprived the citizens of India the right to settle permanently in J & K.

2) Double pincer on the state’s Hindus:

 -Hindu men denied opportunities so they moved to other Indian states

 -As per the State Subject law, Hindu women who marries a man who is not a citizen of the state, loses her citizenship and property rights in the state.

3) Denial of Fundamental right to purchase property:

  

                Under Article 370, citizens of India cannot purchase immovable property in the State of  J & K, but the people of Kashmir can purchase property in other states of India.

4) Non-acceptance of Hindi:

  The decision of the Union of India pertaining to Hindi as National language could not be applied to Jammu and Kashmir because of Article 370. No member could speak in Hindi in the State Assembly without prior permission of the speaker.

5) No CBI in Kashmir:

   On account of baneful barrier of Article 370, Central Bureau of Investigation (CBI) was not allowed to work in J & K.  

State Subject law under Article 370 put tremendous negative pressure on Hindu population in Kashmir in the following manner :

->  While overall population rose everywhere in India, the Kashmiri Hindu population declined from 15% to about 4% of population.

 -> Gerrymandering of electoral districts ensured that Hindu representation in state legislature was nil or negligible (Jammu-Ladakh Population was more than Kashmir but Kashmir still had more assembly seats. That is why the CM of J&K has always been from Kashmir)

->  Paved the way for denial of fundamental right : attack on Hindu religion marked by destruction of temples, assassinations of well known Hindus and killings & rapes of thousands of Hindu females and kidnappings of children.

->Culminated in 1990 ethnic cleansing of nearly 400,000 Kashmiri Hindus fomented by Islamic fundamentalism.... (TO BE CONTINUED) ....


Nikhil Bhan