Article 370: Chronicle of a death foretold
Ram Madhav | 20 Sep, 2019
(Illustration: Saurabh Singh)
ARTICLE 370 IS GONE. The country is rejoicing. But there are some mourners, not just in the Valley’s political circles but in Lutyens’ Delhi circles as well. For some it is an ideological confusion while for some others it is a political compulsion. But a sane examination of the Article tells us how imperative it was for the Article to go.
We are talking about the travesty of an Article that became part of the Indian Constitution in 1950 along with more than 390 other Articles, but didn’t allow these to be applied to Jammu and Kashmir (J&K). When the Indian Constitution came into force on January 26th, 1950, while it was fully applicable to the entire country, only two articles of it, Articles 1 and 370, were allowed to be extended to J&K. Through Part III of the Constitution of India every Indian secured a set of Fundamental Rights that he or she enjoys unhindered (except when they were suspended by Indira Gandhi during the infamous Emergency). However, even this Part was denied to the people of J&K, courtesy Article 370. We are talking about the Article which denied Fundamental Rights to the people of J&K. It took several years before a good number of basic Articles of the Constitution could be extended to the people of that state.
We are talking about an Article that created a major emotional wedge between the people of J&K and the rest of the country. It took four years to extend Part III of the Indian Constitution to J&K when, in 1954, a presidential order was issued applying large parts of the Indian Constitution to J&K. But then, even that was done through a sleight of hand. A new clause was inserted into the Constitution, Article 35A, by a surreptitious move.
Surreptitious, because the amendment to the Constitution, which mandates the consent of Parliament, didn’t take that route. Instead, it was inserted into the Constitution through a simple presidential order. As a result, it couldn’t be included in the main body of the Constitution, and was hence included in the Annexure. Technically, it is a clause in the Constitution under Article 35, but it will be found only in the Appendix to the Constitution. This itself proves the illegitimacy of said clause.
The presidential order of 1954, while extending the Union of India’s laws to the state of J&K also ceded a lot of space to the state administration. The roots of this order lie in an agreement reached between then Prime Minister Jawaharlal Nehru and the leader of the National Conference in J&K, Sheikh Mohammad Abdullah. This agreement came to be known historically as the Delhi Agreement. Its terms were announced by Pandit Jawaharlal Nehru in Lok Sabha on July 24th, 1952, and in Rajya Sabha on August 5th, 1952.
Under this agreement, Nehru had conceded enormous space to Sheikh Abdullah’s whims, even to the extent of allowing the state to retain a separate prime minister, separate flag and separate constitution. It must be remembered that before their accession to the Indian Dominion in 1947, almost all the princely states of India had such arrangements. But once they merged with India, the princely states all voluntarily accepted the Indian Constitution in toto. That was not the case with J&K. While the legislatures of the princely states passed resolutions submitting themselves to the Indian Constitution and abolishing their state laws, J&K refused to do so. Sheikh Abdullah got J&K to constitute a new Constituent Assembly in 1951 and had it pass a resolution stating explicitly that J&K would retain its constitution and separate identity. Abdullah was explicit in his speech to the J&K Constituent Assembly on November 5th, 1951, about its mandate. It included deciding about the future of the state too. He enlisted three alternatives for the state’s future to be decided by the Constituent Assembly: accession to India, accession to Pakistan and complete independence.
According to him, even after the state’s accession in 1947—even after it became a part of the First Schedule of the Indian Constitution—the accession was not final and the J&K Constituent Assembly retained the power to decide on it. Remember, we are talking about Article 370 which gave him this power to deny the application of the Indian Constitution to the state.
Nehru entered into the Delhi Agreement with Sheikh Abdullah under these circumstances. Sheikh Abdullah was able to extract maximum independence from Nehru through the agreement. Some of the clauses came to mean the following: First, while all the other states would be ruled as per the Indian Constitution, J&K would retain its constitution of 1939 and the state’s newly formed Constituent Assembly would look into making necessary amendments to it in order for it to be compatible with the Indian Constitution. Power of legislation would be with the state legislature only, not with the Union Parliament. Thus, a separate constitution was allowed. Second, J&K would continue to have its own citizens, called ‘State Subjects’ under a state law of the Maharaja since 1927. The state legislature would have the power to make laws for conferring special rights and privileges on the so-called State Subjects that won’t be available to other Indian citizens living in the state. Thus, a separate citizenship was allowed. Third, J&K would retain its state flag which would be on a par with the national Tricolour in the state. Thus, a separate flag was accepted.
Interestingly, one of the first amendments made by the J&K Constituent Assembly in 1952 was to abolish the monarchy. Thus came to end the famed Dogra dynasty of the state. The titles of Maharaja and Yuvaraj being enjoyed respectively by Hari Singh and Karan Singh were abolished. Karan Singh was the regent of the state. His position was renamed Sadr-e-Riyasat, a post whose occupant would be elected by the state legislature and ratified by the president of India. That meant there won’t be the post of governor as the Union’s representative in J&K. But then, Sheikh Abdullah didn’t want the nomenclature of his own post as prime minister to be changed. Hence, the Maharaja had gone but not his prime minister. Successive chief ministers of the state used to be called prime ministers until 1967.
Thus, the Delhi Agreement, which became the basis for the 1954 presidential order, had effectively facilitated a system of ‘one country, two constitutions; one country, two flags; and one country, two prime ministers’. We are talking about Article 370 which led to these monstrous anomalies. We are also talking about that Article which had provided judicial immunity to the deeds of the J&K legislature in the name of enacting laws for its State Subjects. We are also talking about an Article that didn’t allow the full application of the jurisdiction of many institutions, such as the Supreme Court, the Comptroller and Auditor General and even the Election Commission, for several years.
It was against these dangerous provisions that the leader of the Bharatiya Jana Sangh, Syama Prasad Mookerjee, had launched an agitation under the auspices of his own party as well as the Jammu Praja Parishad. ‘Ek desh mein do vidhan; ek desh mein do pradhan; ek desh mein do nishan: Nahi chalenge’ (‘Two constitutions, two prime ministers and two flags in one country are not acceptable’) became the war cry of the agitation. Syama Prasad Mookerjee was arrested by the J&K government and incarcerated in a guest house in Srinagar for 40 days—and was found dead one day.
WE ARE TALKING about an Article that didn’t allow Indian laws promulgated by its Parliament to be automatically extended to the state of J&K like the rest of the country. Every such Act passed by Parliament needed the consent of J&K’s state legislature. In many cases, the state legislature would make its own amendments to a law before accepting it. Only recently, this had happened to even an important national law like the Goods and Services Tax (GST) Act. The amendments to the LGBT legislation, decriminalising it, were passed by Parliament but didn’t pass the scrutiny of the J&K legislature subjecting the LGBT community to the same old harassment.
We are talking about an Article that didn’t allow the creation of a women’s commission or a minority commission in the state of J&K. In fact, this Article was inherently anti-women. For several decades, it didn’t allow women freedom of choice in marriage. While men were allowed to marry any woman from anywhere—Pakistan, Afghanistan or even America—women were not allowed to marry outside the state. Even if a Kashmiri woman married a man from the same religion, if he was from outside J&K, she would stand to lose her status as state subject or ‘permanent resident’. After a lot of hassle, finally the state had amended the law, ostensibly claiming that women could retain their permanent resident status even after marrying outside the state. But it also came with a rider, that the children from such marriage wouldn’t be granted permanent resident status.
We are talking about an Article that denied basic human rights to millions of people living in the state for decades. They include the refugees who came from West Pakistan at the time of Partition and migrant workers like scavengers and other manual labourers who migrated to J&K from other parts of the country. In spite of their residence in the state for several decades, they remained non-state subjects, thus effectively deprived of many privileges, such as government education, healthcare, employment, asset and land ownership, etcetera. Important laws passed by the Union Government for the welfare of the safai karmacharis—scavengers—didn’t apply to the state. We are talking about an Article that deprived these sections, largely from the Scheduled Castes (SCs), their basic human rights and human dignity.
We are talking about Article 370 which has denied political rights to the people of J&K. There are thousands of refugees who live in J&K. They all face discrimination in varying degrees. The conditions of West Pakistani refugees, who migrated to the Jammu region in 1947 in the wake of Partition, are pathetic. It may be worthwhile to mention that millions poured into states like Punjab and Rajasthan as a consequence of Partition. Some of them, like Manmohan Singh and Inder Kumar Gujral, rose to become Prime Ministers of India. But West Pakistani refugees who went to Jammu about the same time couldn’t even secure the status of State Subject in J&K even after spending more than seven decades there. Article 370 treats them still as outsiders and thus they are denied all the rights and privileges that State Subjects in J&K enjoy. Their numbers are not small; they number in hundred of thousands today—and the majority of them are from the SCs.
Reservation for the SCs and Scheduled Tribes in the legislature is a uniform right for people of those communities across the country. But Article 370 denied that right to them in J&K. After a long battle, the SCs got political reservation, whereas the STs, who constitute close to 12 per cent of J&K’s population, still don’t have any such reservation of seats.
Even the 73rd and 74th Amendments to our Constitution, piloted by Mani Shankar Aiyer, the Minister for Rural Development in the Rajiv Gandhi Government in 1985, were not approved by the J&K legislature. As a result, the three-tier panchayati raj system, in vogue across the country, doesn’t exist in J&K. While panchayats do elect panchs and sarpanchs, they hardly have any financial and administrative power. We are talking about that Article which denies political rights to refugees, SCs and STs and comes in the way of grassroots political empowerment in J&K.
The delimitation of constituencies was undertaken in the early 2000s across India. But the J&K legislature decided not to undertake that exercise till 2026. There is an imbalance in seats in the legislature and a resultant injustice to the people of the Jammu region. For an almost identical number of voters, Jammu gets 37 seats against the Kashmir Valley’s 46. Jammu has a parliamentary seat for every 1.8 million voters whereas the Kashmir Valley has a parliamentary seat for every 1.3 million. The Valley sends three MPs while Jammu sends only two. We are talking about that Article which has perpetrated this injustice on a section of the people of J&K.
A NUMBER OF IMPORTANT laws that Parliament and the Government have promulgated for development and for people’s dignity have not been extended to J&K courtesy Article 370. The 42nd Amendment inserted the word ‘secular’ in the Preamble to our Constitution. The J&K legislature refused to incorporate this word in its constitution. J&K has had its own penal code called the Ranbir Penal Code. The Indian Penal Code has not been applicable there. Laws like the Safai Karmachari Act, Right to Education Act, Prevention of Corruption Act, 1988, etcetera also haven’t had any jurisdiction in J&K.
Not just political rights, but even developmental rights of the people of J&K were seriously hampered as a result of Article 370. Since the Article hasn’t allowed land to be owned by non-State Subjects, no major industry has gone to J&K. The last major private industry to go to J&K was a cement factory in the 1950s. The public sector unit HMT went in the 1970s, but shut shop soon after. It’s a shame that only one company in J&K got listed on any stock exchange, and that too a state-owned institution called the J&K Bank. The State Subject law discouraged investors from going to J&K. There are no big private hospitals there, no big private educational institutions. We are talking about that Article which denied an ordinary Kashmiri the fruits of development that people of the rest of India are reaping.
All of this was happening in the name of an imagined special status, anchored by Article 370. In fact, the Constitution didn’t use the phrase ‘special status’ anywhere. The Article forms part of a section called ‘Temporary, Transitional and Special Provisions’. But generations were fed the false narrative of J&K’s conditional accession and special status. They were not told the fact that the document signed by Maharaja Hari Singh called the Instrument of Accession was the same signed by another 535 rajas and maharajas and there was nothing special about J&K. Instead, Article 370 was displayed as proof of such special status.
It was the same discriminatory Article—which denied people development, political empowerment and dignity—that was made otiose by Prime Minister Narendra Modi and Home Minister Amit Shah between August 5th and 7th. A pestering wound of 72 years has been amputated in just 72 hours by the Government. Even the protagonists were surprised. If it was so easy, why did it take so long, they wondered. It didn’t take 72 years; it took one Modi to repeal it. Prime Minister Modi demonstrated that courage of conviction.
Critics argue that the people were not consulted before the decision. The fact is that the BJP and the Sangh Parivar have been talking about the repeal of the article for the last 70 years. There was a full two-day discussion in Parliament. Members of Parliament from the Kashmir Valley were also present in the House and participated. Thus, the argument that people were not consulted doesn’t hold water. Some members argued that the route of presidential order was patently illegal. What they forget is that the Article was tinkered with at least 45 times in the past by successive Governments. Interestingly, the same presidential order route was taken every time.
But a larger question begs an answer. Who was consulted when this Article was being introduced in 1949-1950? Nobody. In fact, when the proposal for drafting a special article for J&K came up, almost everybody rejected it. When Sheikh Abdullah approached the architect of our Constitution, BR Ambedkar, with a request to draft the law, Ambedkar flatly refused. “Making limited application of laws made by Parliament for the state of Jammu and Kashmir would create lots of problems rather than solving,” he bluntly told Sheikh Abdullah. Nehru then entrusted the responsibility of drafting a special law for J&K to his trusted colleague from the Madras province, and a former prime minister of Maharaja Hari Singh in Jammu, N Gopalaswami Ayyangar.
Nehru’s decision was strange. Sardar Vallabhbhai Patel was handling the accession of over 535 princely states, including the difficult ones like Hyderabad and Junagadh. Nehru singled out Kashmir and handed it over to Gopalaswami Ayyangar. In other words, Nehru retained it with himself. Patel was naturally miffed and raised strong objections, stating that as the Union Home Minister he should be allowed to handle Kashmir too. Nehru responded to Patel’s annoyance rather curtly: ‘Gopalaswami Ayyangar has been especially asked to help in Kashmir matters. Both for this reason and because of his intimate knowledge and experience of Kashmir, he had to be given full latitude. I really do not know where the States Ministry [Patel’s ministry] comes into the picture except that it should be kept informed for the steps taken. All this was done at my instance and I do not propose to abdicate my functions in regard to matters for which I consider myself responsible. May I say that the manner of approach to Gopalaswami was hardly in keeping with the courtesy due to a colleague,’ he wrote to Patel on December 27th, 1947.
GOPALASWAMI WAS A seasoned politician and an ardent Congressman. But even he found dealing with Sheikh Abdullah difficult. The draft article, originally called 306A, ran into trouble with Sheikh Abdullah. Annoyed, Gopalaswami threatened to resign, saying, ‘Our discussion this morning, as I indicated to you, left me even more distressed than I have been since I received your last letter from Srinagar… I feel weighted with the responsibility of finding a solution for the difficulties that, after Panditji left for America and within the last few days, have been created, from my point of view without adequate excuse.’
Interestingly, when the draft 306A was placed before the Congress Working Committee (CWC) in October 1949 for its approval, the committee rejected it with near unanimity except for two members—Gopalaswami himself and Maulana Abul Kalam Azad. The CWC’s contention was that no such special provision could be granted to any one princely state. Nehru was abroad. He was compelled to turn to Sardar Patel, seeking his intervention in convincing the CWC.
In politics, leaders sometimes follow the orders of their superiors irrespective of their personal views. As it happens now, it happened then too with Patel. Faced with the dilemma of championing a proposal in which his heart was not, or inviting criticism that he pursued policies against Prime Minister Nehru, Patel opted for the former. He was not willing to allow any bitterness to creep in at the very dawn of Independence among the top leaders of the Government. He had the proposal brought back before the CWC. When members objected, Patel convinced them to honour it since it involved Prime Minister Nehru’s personal prestige as he had already given his word to Sheikh Abdullah. When Nehru returned, Patel wrote to him: ‘After a great deal of discussion, I could persuade the [Congress] party to accept.’ Those who invoke democratic principles to criticise the Modi Government’s action must answer if the Article was brought in following any democratic principle.
Patel didn’t live long enough to see the Article’s ill effects. But in his absence, Nehru lied in Parliament in 1952 when he said: “Sardar Patel was all the time dealing with these matters.” It surprised even Gopalaswami Ayyangar. V Shankar, Sardar Patel’s biographer, quotes Ayyangar as bemoaning, “It is an ill-return to the Sardar for the magnanimity he had shown in accepting Panditji’s point of view against his better judgment.” Shankar also writes that Patel was never in agreement with Nehru’s approach and even commented: “Nehru royega” (Nehru will repent).
After the CWC, it was the Constituent Assembly’s turn to oppose it. Something very undemocratic happened in the Constituent Assembly with respect to the princely state of Kashmir at the behest of Nehru. As per the agreement, the state was to get four seats in the Constituent Assembly: two members were to be nominated by the Maharaja and two would be from the state legislature called the Jammu Kashmir Praja Sabha. The Praja Sabha had held its election in 1946. But Nehru refused to accept the nominations of either the Sabha or the Maharaja. His contention was that the Praja Sabha didn’t represent the will of the people because the National Conference led by Sheikh Abdullah had boycotted it. It is true that the National Conference didn’t participate in the 1946 election to the state legislature. At a time when the country was busy with the Quit India movement against the British, Sheikh Abdullah and his National Conference were busy with the Quit Kashmir movement against the Maharaja. As part of the movement, the National Conference had boycotted the 1946 election and was unrepresented in the Praja Sabha of 1946.
Nehru insisted that the four seats in the Constituent Assembly be filled by Sheikh Abdullah’s nominees. When members like KT Shah vehemently opposed this as undemocratic, Nehru rose to defend it as the ‘correct’ democratic practice: “It amazed me to hear Prof Shah propose that the so-called Praja Sabha of Kashmir should send representatives to this House…[H]e should know that there is nothing more bogus than the Praja Sabha… He ought to know that the whole circumstances under which the last elections were held [in 1946-1947] were fantastic and farcical. He ought to know that it was boycotted by all decent people… and the type of people who got in [the Praja Sabha] was the type who had opposed the freedom movement throughout, who had done every injury possible to the idea of freedom of Kashmir till then… I admit that it is not desirable for any members of this House to come by nomination or be selected by some narrow process… though the process suggested for Kashmir is not ideal, yet I do think that it is a process that has been adopted in regard to many States in India. It is a process where you get a popular government with the representative of the popular party at the head of it, recommending to the ruler that certain names should go. Even from the view of democracy, that is not an incorrect process,” Nehru argued.
Seizing the opportunity, Sheikh Abdullah nominated himself as a member and included three of his party colleagues: Moti Ram Baigra, Mirza Mohammad Afzal Beg and Maulana Mohammad Sayeed Masoodi. All the other stakeholders in the state had been excluded and the National Conference’s voice became the voice of J&K in the Constituent Assembly.
DISCUSSION ON ARTICLE 306A (which became Article 370 in the final draft) was brought before the Constituent Assembly in a hurried manner just a month before the final approval of the draft Constitution. When the discussion began, several members raised serious objections. The first to object was a member of the Communist Party from Lucknow and a renowned Urdu poet, Hasrat Mohani. “Why this discrimination, please?” he asked Gopalaswami, to which the reply was: “The discrimination is due to the special conditions of Kashmir.” Those questioning the temporary transition of the state to Union Territory should also understand that it too was because of the ‘special conditions in Kashmir’.
“If you grant these concessions to the Maharaja of Kashmir you should also withdraw your decision about the merger of Baroda into Bombay and allow all these concessions and many more concessions to the Baroda ruler also,” retorted Mohani. Gopalaswami went on to provide a long explanation for the special treatment accorded to J&K. Finally, the Article found a place in the Constitution under ‘Temporary, Transitional and Special Provisions’.
It was to be a temporary provision. There were several occasions during Nehru’s tenure when the demand for its repeal had arisen in Parliament. Even Bakshi Ghulam Mohammad, the Prime Minister of J&K had once urged Nehru to repeal the Article. When a group of leaders called on Nehru and demanded the repeal of Article 370, Nehru did concede that the Article was not serving any purpose. India’s first spy chief, BN Mullik, claimed that in a private conversation, Nehru made the extraordinary admission that India “agreed with the Jana Sangh’s views that Jammu & Kashmir should be fully integrated with India and was taking steps in that direction”. In Parliament, in an oral reply, he said that Article 370 had been “eroded and Kashmir stands fully integrated”.
Prakash Vir Shastri, a Bharatiya Jana Sangh member of Parliament from Bijnour in Uttar Pradesh, had moved a private member’s Bill in Parliament in 1964 on Article 370. That Bill received wide support from members cutting across party lines. Even the Congress and National Conference members were seen supporting it. Of particular interest were the speeches made by the associates of Sheikh Abdullah.
Abdul Ghani Goni from J&K, who was earlier a staunch supporter of a separate Muslim identity for Kashmir, was surprisingly aggressive in demanding repeal of the Article. “The then Prime Minister of J&K, Bakshi Ghulam Mohammad, had moved for abrogation of Article 370, but the Central Government was not agreeable to it at that time. I do not know whether the Central Government is under the influence of the West or wants appeasement policy towards Pakistan… they want to please their neighbours at our cost. The Central Government, our Congress leaders, have not done justice to the people of Kashmir. The people of Kashmir had decided once and for all that Kashmir is an integral part of India, whether there is Article 370 or no Article 370. It is only a provisional provision and a temporary provision in the Constitution which can be removed at any time. But as far as the complete accession is concerned, that is final and nobody can challenge it,” he declared during the debate.
GONI ADDED: “So I dispassionately appeal to the members of this House and appeal not only to the Opposition Members but also to the Congress members to support this Bill and get it passed and have Article 370 abrogated from the Constitution of India, so that we may also be treated as equal citizens, as good citizens of India as any other citizen. Don’t treat us as second-class citizens, and don’t treat us as a colony of India. We are as much a part of India as other states.”
Another member of Parliament from the state, Syed Nasir Husain Samnani, also rose to question the relevance of Article 370, saying, “We, the people of Kashmir, never demanded that we should be treated differently. We do not want Article 370. I want to end this curse in my lifetime, for my safety, for my children’s safety, for the safety of our future generations. We should have the same laws as Maharashtra, Madras, Kerala, Bengal. We did not believe in two-nation theory of Jinnah and hence we did not allow any branch of Muslim League to be formed in J&K.”
Many in the opposition today seem to be ‘knowledge-proof and information-proof’. They haven’t read the history of their own parties with respect to this Article. It was destined to go because it was coming in the way of development, political empowerment and human dignity of the people of J&K, besides nurturing a sense of separatism. It needed a strong leader like Modi to take the call, which he did on August 5th.
More than a month has passed since the annulment of Article 370. The Valley has remained largely peaceful, barring sporadic and minor incidents. Critics attribute this absence of a public outburst of anger to the deployment of security forces in large numbers, the internet blackouts or the curfew restrictions. But then, none of these is new to the people of the Valley. Armed forces and internet blackouts have been a regular feature of life in the terror-stricken areas of the Valley. Yet, in the past, people used to come out onto the streets in large numbers, pelt stones and clash with the security forces leading, on some occasions, to casualties too. In fact, ‘one dead body a day’ used to be the strategy of the separatist and terrorist establishment because each casualty would be used to foment more trouble. That is no longer the situation in the Valley. People seem to understand the import of this decision. The staple of separatism fed constantly in the past seems to be declining. People realise that their leaders had all along been taking them for a ride in the name of special status and separatism. That rhetoric had helped a few political families whereas the ordinary people of J&K had remained impoverished. They are no longer ready to blindly buy the victimhood narrative as in the past. They have paused to think.
That is a good sign for the future. What the Modi-Shah duo did was historic. We stopped looking at J&K through the Pakistani prism. We took the bull of separatism by its horns. It will ultimately surrender, as it drew its strength not from the people but from the self-seeking establishment in Delhi.