By Dr. Mohan Krishen Teng & Chaman Lal Gadoo
The Indian federal polity grew out of two diametrically divergent processes which underlined the devolution of authority to the provinces, in what was known as the British India before the independence, and the integration of the Indian States, which had acceded to India in accordance with the Instruments of Accession. The Instruments of Accession envisaged the procedure by virtue of which the Indian States, after the British withdrawal from India and the lapse of Paramountcy, exercised the right to accede to the Dominion of India. The federal organization of India was, therefore, constituted of the erstwhile Indian provinces of the British India and the Indian States which were liberated from the British tutelage after the British colonial organization came to its end in 1947.
Maharaja Hari Singh, the ruler of the Jammu and Kashmir State, acceded to the Indian Dominion on the terms and conditions envisaged by the Instrument of Accession which was drawn by the States Ministry of the Indian Dominion. Hari Singh signed the standard Instrument of Accession, which the rulers of other acceding States has signed earlier and he bound himself to the same obligations, which the rulers of the other Indian States had accepted. There was no condition attached to the accession of the State to India, which provided for any separate set of constitutional relationships between Jammu and Kashmir and the Dominion of India. All the acceding States and Unions of the States, Jammu and Kashmir being no exception, were reserved the right to convene their own Constituent Assemblies to draw up the constitution for their respective governments. Indeed, Constituent Assemblies were instituted in Mysore State and the Surashtra States Union.
Sheikh Mohammad Abdullah and the other National Conference leaders were in jail when India won freedom and were released from imprisonment months after the British had left. After their release the Conference leaders laid no conditions for the accession of the State to India which they supported, except that they demanded the transfer of State power to the people, a process to which the Indian Government was equally committed. The claims made by several State leaders as well as many national leaders that National Conference had endorsed the accession of the State to India on the condition that Jammu and Kashmir would be constituted into a separate and autonomous political identity on the basis of the Muslim majority character of its population, is a distortion of history. The Conference leaders did not lay claim to any immunity from the future Constitution of India, nor did Nehru or any other Indian leader give any assurance to the ruler of the State or the Conference leaders, about any special constitutional position, Jammu and Kashmir would be accorded in the Indian federal organisation.
The Instrument of Accession was evolved by the Secretary in the State’s Ministry of the Government of the Indian Dominion, V.P. Menon in consultation with the Viceroy, Lord Mountbatten, and with the approval of the State’s Minister, Sardar Patel. The lapse of Paramountcy had reduced the Princes to mere shadows of the royalty; they were, during the British rule. The powers they exercised in their States were enforced by the British authority, and after it was withdrawn, they were left to the mercy of the State’s people, who had all along the liberation struggle of India, committed themselves to the independence of India from the British rule and unity of the people in the British India and the Indian States. The States people inhabited one-third of the Indian territory and formed one fourth of the population of India.
Lord Mountbanen as well as V.P. Menon was interested in the protection of the Princes for their own reasons. They enacted the long and atrocious drama of the integration of the States, to secure the Princes, the powers and privileges they had enjoyed under the protection of the Paramountcy. Menon persuaded Patel to accept the accession of the States on the basis underlined by Cabinet Mission, thus leaving the Princes in possession of all the powers of the government, except defense, foreign affairs and communications. Accordingly, the Princes were invited to accede to the Indian Dominion and delegate to the Dominion Government, powers in respect of defense, foreign affairs and communications, leaving the residuary powers for them to administer. The demonstration effect of the Indian offer to the Princes was so profound that the State’s Minister of Pakistan, Sardar Abdur Nishtar, proposed to accept the accession of the States on two subjects only i.e. the defense and foreign affairs, leaving communications as well as state troops, within the control of the States.
The integration of the States into viable administrative units proved more difficult than anticipated and the institution of the Constituent Assemblies in the States was also delayed. In May 1949, the Premiers of the State’s took a stupendous decision in a Conference at Delhi, in which the Negotiating Committee of the constituent Assembly participated and entrusted the Constituent Assembly of India, the task of drawing up the Constitution for the States. The Jammu and Kashmir did not accept the decision arrived in the Premiers Conference and expressed its preference to convene a separate Constituent Assembly to draft a separate constitution for the State. Consequently, a separate meeting was held on 14 May 1949, in Delhi between the representatives of the State Government and the representatives of the Constituent Assembly in which Sheikh Mohd Abdullah, Nehru and Patel participated. In the meeting the Conference leaders blankly refused to accept the inclusion of the State in the constitutional organisation of India. They told the Indian leaders, in veiled words, that they favoured a separate constitutional organisation for the State in view of the Muslim majority character of its population which they feared would be subjected to the dominance of the Hindu majority in India. They proposed the retention of the Instrument of Accession as the basis of the constitutional relationship between the Union and the Jammu and Kashmir, till the Constituent Assembly of the State evolved a fresh structure of constitutional imperatives to replace the existing relations.
The Indian leaders did not approve of the exclusion of the State from the constitutional organisation of India and emphasized the paramount importance of bringing the States within the scope of the framework of the rights and legal Safeguards as well as the principles of State policy, the Constituent Assembly had devised. Nehru, told the Conference leaders that the safeguards for the rights and the principles of State policy had been evolved by the Constituent Assembly with great pride and there could be no reason to deprive the people of the State of the protection, the Constitution of India envisaged. In words, laiden with considerable emotion, he stressed that all people of India would be governed by a uniform set of constitutional postulates and people of any province or any acceding State would not be denied any rights and safeguards for equality, liberty and freedom, the objective Resolution adopted by the Constituent Assembly embodied. He readily agreed to modify the scheme of the federal division of powers, the Constituent Assembly had evolved, in respect of Jammu and Kashmir and accepted to reserve a wider orbit of powers, including the residuary powers for the State Government. In the scheme of the federal division of powers, the Constituent Assembly had evolved the residuary powers were vested with the federal government.
After protracted negotiations, an agreement was finally reached between the State leaders and the representatives of the Constituent Assembly which underlined the inclusion of the State in the basic structure of the Indian Constitution and the application of the provisions of the Constitution of India to the State pertaining to the territorial jurisdiction of the Union of India, Indian citizenship, rights and related constitutional safeguards, principles of State policy, and the jurisdiction of the Supreme Court. It was agreed upon that the Constituent Assembly of the State would be empowered to determine the future of Dogra rule and specify, with the approval of the President of India any further extension of the provisions of the Constitution of India to the State. To avoid any fresh controversy over the agreement, Nehru sent a rejoinder to Abdullah, specifying clearly the stipulation on which the agreement was reached.
The agreement was, however, short lived and the Conference leaders resiled from their commitments after they returned to Srinagar. The issue came to a head when Gopalaswamy Ayanger draw up the draft constitutional provisions for Jammu and Kashmir and sent them to the Conference leaders for their approval. The draft provisions were based upon the stipulations of the agreement reached in the Delhi conference. After a short spell of silence and close door deliberations, the National Conference leaders placed the draft provisions before the Working Committee of the Conference. The Working Committee promptly turned down the draft provisions. Sheikh Mohammad Abdullah sent an alternative draft to Ayangar, which envisaged the complete exclusion of the State from the constitutional organisation of India. He proposed that the federal relations between the State and the Union be determined by the provisions of the Instrument of Accession. The Conference leaders expressed strong reservations about the application of the fundamental rights and related constitutional guarantees and the jurisdiction of the Supreme Court to the State, on the ground that the fundamental rights embodied in the Constitution of India conflicted with the policies of the National Conference, committed to radical social and economic reforms. Gopalaswamy Ayangar, labouring under the impression that the Conference leaders would accept his proposals if he left out the fundamental rights and related guarantees, drew up a fresh draft, in which reference to the fundamental rights, constitutional guarantees and the federal judiciary, was altogether omitted. To his utter consternation, the Conference leaders rejected the modified draft as well.
They refused categorically, to accept the application of any provisions of the Constitution of India to the State. Ayangar, who had served Maharaja Hari Singh, during the most fateful years of the history of Kashmir, did not realize the grave consequences of keeping Jammu and Kashmir out of the scope of the rights and related judicial safeguards the Constitution of India envisaged for the Indian people. He was unmindful of the incalculable harm, the fateful change he had made in his proposals, would do to the minorities in the State.
Ayangar made fresh efforts to arrive at an agreement with the Conference leaders who refused to accept any provisions of the Constitution of India, including the provisions which described the territorial jurisdiction of the Union. The Conference leaders were invited to Delhi, the Indian capital, for talks and Nehru joined the parleys. Nehru distrusted the demand of the National Conference leaders for a separate constitutional organisation of the State which did not form a part of the Indian republic and he strongly pleaded with the Conference leaders to abandon their obduracy. He refused to approve of any constitutional arrangement, which forced the exclusion of the State from the basic structure of the Constitution of India. The Conference leaders refused to relent and at one stage they broke off the negotiations and threatened to resign from the Assembly. They sulked away closing themselves up in the Kashmir House, the old mansion, built in the Indian capital, by Maharaja Hari Singh.
Nehru and the other Indian leaders were caught in between the devil and the deep sea. They could ill-afford to estrange the Conference leaders at a time when the United Nations intervention, interestingly, invoked by India against the aggression of Pakistan, had put the India Government on the cross-roads. Without the support of the Kashmiri speaking Muslims, who formed the main support base of the National Conference, India had little hope to win the proposed plebiscite in the State. Nehru was under pressure of the Security Council to implement the demilitarization of the State to prepare the ground for the induction of the plebiscite administration into the State. He quietly relented and sent Ayangar to assure the Conference leaders that the Government of India would not press them to accept the inclusion of the State into the constitutional organisation of India.
Gopalaswamy Ayangar drew up a fresh draft in consultation with Mirza Afzal Beg, a close associate of Sheikh Mohammad Abdullah and one among the Conference leaders, who was not favourably disposed towards the accession of the State to India. The new proposals envisioned the exclusion of the State from the Indian constitutional organisation. The revised draft-provisions were incorporated in Article 306-A, of the draft Constitution of India. A last minute controversy cropped up between Ayangar and the Conference leaders when the draft Article 306-A, came up for consideration in the Constituent Assembly. The Conference leaders demanded the inclusion of the provisions in the draft Article 306-A which recognised the Interim government of the state as a government in perpetuity. Many prominent members of the Constituent Assembly pointed to Ayangar the anomalous situation, the recognition of a government in perpetuity would create. They advised Ayangar not to accept the position taken by the Conference representatives. Accordingly, when Ayangar conveyed his inability to the Conference leaders to incorporate provisions envisaging a government in perpetuity, they reacted in anger. They again sulked away and did not join the proceedings of the Assembly till Ayangar had delivered half of his speech on the draft Article. Inside the Assembly they sat glum and did not utter a word in support of the draft provisions. Beg had informed Ayangar that he would move an amendment to the draft provisions. Ayangar watched the proceedings with concern as any controversy between the Indian Government and the Conference leaders in the Constituent Assembly, was bound to have a deep impact on the Indian stand in the United Nations. Nehru was in the United States and perhaps, he expected the Conference leaders to make spirited statements in the Indian Constituent Assembly, commending the accession of the State to India as well as the way Indian Constituent Assembly had accommodated a Muslim majority State in the Constitutional framework it had evolved for the Princely States. Beg did not move the amendment. The draft provisions of Article 306-A were adopted by the Constituent Assembly without any dissent.
Immediately after the proceedings of the day were over in the Constituent Assembly, Beg wrote to Ayangar demanding the annulment of the Article 306-A, failing which he threatened to resign from the Assembly along with the other representatives of the State. Ayangar was stunned. Nehru was abroad in the United States as he could hardly help to reverse the decision of the Assembly, he wrote back to Beg plaintively not to resign and wait for Nehru’s return. The Conference representatives did not resign.
Article 306-A was renumbered Article 370 at the revision stage. Jammu and Kashmir State was included in the First Schedule of the Constitution of India which described the territories of India. No other provision of the Constitution of India was extended to Jammu and Kashmir. An explicit limitation was placed on the application of the Constitution of India to the State, except in regard to the provisions of the Seventh Schedule corresponding to the subjects by the Instrument of Accession to the Indian Dominion. Accordingly, the power of the Union in respect of Jammu and Kashmir was limited to the subjects in the Instrument of Accession viz. foreign affairs, defense and communication.
Article 370 of the Constitution of India envisaged provisions which stipulated:
- limitations on the application of the Constitution of India to the State,
- the division of powers between the Union and the State,
- extension of the provisions of constitution of India to the State,
- modification and termination of the operation of Article 370, and
- the institution of a separate Constituent Assembly for the State.
The only part of the Constitution of India which was extended to the State independent of Article 370 was the First Schedule of the Indian Constitution, which described the territorial jurisdiction of the Indian Union. Jammu and Kashmir was listed in the First Schedule and included in the territories of India. As a matter of fact, the State was included in the First Schedule, in consequence of the Instrument of Accession executed by the Ruler of the State which accomplished the irrevocable integration of the State in the Dominion of India. The territorial jurisdiction of the Indian State was created by the Independence Act of 1947, and Instruments of Accession executed by the rulers of the erstwhile Princely States. The Constitution of India described the territories of the Indian State, constituted by the transfer of power to the Indian Dominion on 15 August 1947 and the accession of the States that followed in due course. The inclusion of the State in the First-Schedule of the Constitution of India actually placed it alongside the other Princely States which had acceded to India.
The accession of the States involved the consent of the States to join either the two Constituent Assemblies which had been created after the partition was accepted. The Cabinet Mission underlined the adherence of the States to a United India and their participation in the Constituent Assembly of India which was convened long before the partition was envisaged and put into effect. The participation of the States in the Constituent Assembly of India was a consequence of the accession of the States. The accession of the States brought about the irrevocable unification of the Princely States with the State of India, irrespective of whether they accepted to become a part of any future constitutional organisation of India. The integration of Jammu and Kashmir into the State of India was, therefore, brought about by the accession of the State to India and not by Article 370.
The Constitution of India did not constitute the State of India. In fact, the Constitution of India was only declaratory of the state of India. The Indian State existed prior to the Constitution of India, and it would not be dissolved if the Constitution of India was abrogated nor would the Jammu and Kashmir fall apart if Article 370 was rescinded.
Had Article 370 not been incorporated in the Constitution of India, the Jammu and Kashmir would have been placed in the constitutional organisation of India in the same manner in which the other federating States, grouped into Part B States, were placed in the constitutional organisation of India. The limitation imposed by Article 370 explicitly restricted the application of the Constitution of India to Jammu and Kashmir Article 370 was by no means an enabling act. There was only one enabling instrument which the Indian Independence Act created and that was the Instrument of Accession. The participation of the States in the Constituent Assembly of India was an inevitable consequence of the accession of the States. The oft-repeated assertion that Article 370 was an enabling act, was politically motivated and used by successive State governments to perpetuate the unrestricted power to rule by decree, vested in them, by Article 370. Evidently, Article 370 was not in any way connected with the so-called autonomy of the State. In fact, it placed the State outside the federal structure of India, the federal division of powers between the Union and the States and the jurisdiction of the federal judiciary, including its power of judicial review, which guaranteed the autonomous identity of the States in India. Autonomy for the Indian States could only be visualized within the Indian federal structure and not outside the division of powers, it envisaged.
Provisions were incorporated in Article 370 for convocation of a separate Constituent Assembly for the purpose of drafting the Constitution of the State. The stipulations of Article 370, in regard to the Constituent Assembly of the State, left no doubt about the fact that the Constituent Assembly of the State was a creature of the Constitution of India and drew its powers from the same source. Several of the Conference leaders claimed plenary powers for the Constituent Assembly. The issues they raised were more involved and perhaps they did not accept that the institution of the Constituent Assemblies in the erstwhile Princely States followed as a consequence of the accession of the States to the Indian Dominion.
The claim of the Conference leaders to plenary powers for the Constituent Assembly, which in the following years became the bane of a serious controversy between the National Conference and the Indian Government had a subtle and dangerous import. Plenary powers would vest in the Constituent Assembly a veto not only on all constitutional relationships between the Jammu and Kashmir State and the Union of India, but also on its accession to India.
Article 370 was included in the transitional provisions of the Constitution of India and was therefore, presumed to be of transitory nature. Indeed provisions were incorporated in Article 370 by virtue of which the President of India was empowered to modify or terminate the operation of its provisions by a notification, provided recommendations to that effect were made by the Constituent Assembly of the State. The President was empowered to extend the application of the provisions of the Constitution of India to the State by an order issued by him in concurrence with the State government. Presumably the temporary provisions, envisaged by Article 370, were meant to remain in operation only so long as the Constituent Assembly of the State completed its task. Evidently, the founding fathers of the Indian Constitution could not have visualized a perpetual Constituent Assembly for the State.
By arrangement with the Weekly Organiser, New Delhi.