The Kashmir Conundrum is like Abhimanyu's Chakravyuh

The  birth of Article 370

Notwithstanding  the above events, J&K’s accession to India was full and final.  The IOA signed was similar to what was signed by other princely  states which provided matters with respect to which the Dominion  Legislature may make Laws for the State i.e. defence, external  affairs, communications and ancillary.

Q.  Was J&K the only State to draft its own Constitution?

A.  No. ‘It  was accepted that the States and the Unions of the States would  institute their own Constituent Assemblies to draw up the  constitutions for their Governments. The State Ministry constituted a  special Committee in November 1948 to lay down broad guidelines for  the Constituent Assemblies of the States and the Unions of the States  such they are not in conflict. The Committee drafted a model  constitution for the State Constituent Assemblies to adopt.

However,  the process of instituting the Constituent Assemblies in the States  was slow and except for the Saurashtra States Union,  Travancore-Cochin and Mysore, Constituent Assemblies of the States  were not convened. The Interim Governments instituted in the States,  faced several problems of integration and liberalization and the  convocation of the Constituent Assemblies was bound to take a long  time.

To  overcome these difficulties the Conference of the Premiers, in  December 1949, decided not to wait for the institution of the  Constituent Assemblies in the States and instead proposed to entrust  the task of framing the state constitutions to the Constituent  Assembly of India.

The  draft provisions were then sent to Saurashtra, Travancore- Cochin and  Mysore, where they

were  considered by the respective Constituent Assemblies of these States  and accepted with minor modifications. The draft constitution was  also sent to the other States and the Unions of the States for their  consideration. All the State Governments accepted the draft  provisions, except the Jammu and Kashmir State.’ 6pg  11

Key  points: All princely States including J&K were asked to draft their own  Constitution. Draft provisions were considered by Constituent  Assemblies of some states. Eventually all State Governments accepted  the draft constitution barring J&K.

Q.  Was Article 370 promised at the time of signing IOA?

A. No it wasn’t. As stated earlier signing of the IOA was  unconditional. Further the  draft Constitution of India presented to the Constituent Assembly for  debate in February 1948 did not have Article 370. Therefore, Article  370 being promised in 1947 is a  fallacy.

When  Nehru sent Abdullah to explain to him the position and draft an  appropriate Article, Dr  Ambedkar said, Mr  Abdullah, you want India should defend Kashmir, India should develop  Kashmir and Kashmiris should have equal rights as citizens of India,  but you don’t want India and any citizen of India to have any  rights in Kashmir. I am the Law Minister of India. I cannot betray  the interest of my country.’ 3  pg 17 (Interview of Prof Balraj Madhok Organiser issue 14/11/2004) It  was then that Nehru asked Ayyangar to draft Article 306-A.

The final Article 370  was Article 306-A in the draft Constitution of India which was placed  before the Constituent Assembly on 17th  October, 1949.  According  to Constituent Assembly Debates (India) Vol X No 10, Gopalaswami  Ayyangar, minister without portfolio in Nehru’s government (and  former PM of J&K) made the following arguments in support for  article 306-A:

‘In  the case of other Indian States, the IOA will be a thing of the past  in the new Constitution; the States have been integrated with the  Federal Republic in such a manner that they do not have to accede or  execute a document of accession for becoming units of the Republic  and, in the case of practically all States other than J&K, their  constitutions have also have been embodied in the Constitution for  the whole of India. It would not be so in the case of Kashmir as the  State is not yet ripe for this kind of integration due to the special  conditions prevailing in Kashmir.

In  the first place there  has been a war going on within the limits of J&K State- part of  the State is still in the hands of the enemies, and in the second  place, the Government of India, have committed themselves to the  people of Kashmir in certain respects. They have committed themselves  to the position that an opportunity will be given to the people of  the State for decide for themselves the nature of their  Constitution.”

It  was discussed in the Constituent Assembly and thereafter formally  added to the Constitution of India as Article 370.

Q. If Article 370 is repealed,  would J&K cease to be part of India?

A.  No. This was in the news after CM Omar Abdullah’s comment to that  effect. The basis for J&K accession to India was the IOA and not  Article 370. Justice  A.S. Anand wrote, ‘This IOA was unconditional, voluntary and  absolute. It was not subject to any exceptions. As such, it bound the  State of J&K and India together legally and constitutionally. And  so, regarding the legality of the accession in the judicial sense of  the word there is no doubt’.1  pg 75.

Q. Could Nehru have forced the  State to merge with the Constitution of India like other States?

A.  Yes,  Nehru could have treated the princely state of J&K in the same  way as other princely states. But it was Nehru who pushed for the  installation of a government headed by Sheikh Abdullah as PM. Nehru’s  friendship with Abdullah, their dislike for the Maharaja and India  being under pressure in the U.N. eventually forced the Maharaja to  abdicate the throne in favor of his 18 year old son in June 1949. The  situation changed thereafter.

Q. Could Nehru’s Government have  cleared J&K of Pakistan occupation?

A.  Lt Gen N S Malik wrote, ‘Indian  Army’s advance into present POK in 1948 was said to have been  halted on the advice of Sheikh Abdullah to Nehru that the areas  beyond were not Kashmiris.’10

Also,  having taken the J&K issue to the U.N. any attempt to force the  State into a merger with the Constitution of India would have raised  hackles abroad – created a situation which the Indian government  under Nehru was not temperamentally attuned to. Defence  analyst K.  Subrahmanyam wrote, “There is also the view that Nehru was  anti-militarist in his orientation and as, an advocate of peace and  non-alignment, neglected the role of military power in international  relations” 11  pg 41

Q.  Is Article 370 a temporary provision?

A.  A reading of the Constituent  Assembly Debates referred to above show that Gopalaswami Ayyangar had  said that article is temporary in nature. He justified its existence  on account of special conditions prevalent then. Further Article  370 fell under the Constitution of India’s Part XXI called  ‘Temporary and Transitional Provisions’  at  the time of enactment of the Constitution.

Under  a Constitutional Amendment of 1963, the world ‘Special’ was added  to the previous title. Subsequent amendments were enacted as Special  Provisions of one kind or another for various States  under  Article 371.  However, Article 370 has continued as Temporary provision.

On  27/11/1963 Pandit Nehru confirmed on the floor of Parliament that he  had earlier made the statement: ‘Article 370 of the Constitution  would be eroded progressively’.  3  pg 24

Labeled  as a temporary provision w.r.t J&K, Article 370 has now become  permanent.

Q.  What are the provisions of Article 370 in brief?

A.  The article states that the provisions of Article 238 (see next para)  shall not apply to J&K. Further the essence of clauses (1)(b)(i)  and (1)(b)(ii) is that laws of Parliament on matters in the Union  List and the Concurrent List can be made for J&K only after  ‘consultation’ with the State government (ie subjects mentioned  in the IOA namely Defence, External Affairs and Communication) or  after ‘concurrence of the State government depending on the subject  matter of the law. (ie all other laws). The words ‘Consult’ can  be construed differently. In reality over 260 Central laws, were  given effect to in J&K after concurrence of the State Government.

Article  238 was meant to govern the constitutional relationship between the  Union and princely States labeled as part B states. However, all  States had accepted the Constitution of India while J&K wanted to  frame its own Constitution. This article was deleted by the 7 th  Amendment Act, 1956, when the scheme of reorganization of all States  was done on the basis of language which meant changing the boundaries  of existing states and abolition of the classification of the Part B  states.

Q. Is it correct to justify  Article 370 by referring to exclusive provisions of Article 371?

A.  It is true that the Constitution makes Special provisions for  Maharashtra, Gujarat, Nagaland, Assam, Manipur, Sikkim, Mizoram,  Arunachal Pradesh and Goa. But the special provisions of these states  are nowhere near the breadth and scope of the temporary provisions of  J&K.

For  example Article 371A deals with Nagaland. It stipulates that no act  of Parliament on (i) religion or special practices of Nagas, ii) Naga  customary law and procedure, including administration of justice  under it and iii) ownership and transfer of land and its resources  would apply to the State unless the State Legislative Assembly do  decides and so on. Article 371H for Arunachal Pradesh lays down that  the strength of the assembly shall consist of not less than 30  members and confers special responsibility and discretion on the  Governor in respect of law and order. Art 371I lays down that the  legislative assembly of Goa shall have a minimum of 30 members.  Compare the scope of these special provisions with the temporary  provision of J&K.

Note  that India’s opponents want to perpetuate special conditions in J&K  so as to ensure continuance of Article 370 and prevent its  integration with India. Just because 54% of J&K is not in India’s possession, cannot be  a reason for the Article to continue 64 years later!

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