Article 370

Santosh Kaul    1992-02-01   

Special provisions for the Jammu and Kashmir Se per in the Constitution of India in 1950. Therefore, the provision of Article 370, incorporated in the Constitution of India, was not in any way related to the State's accession to India. The accession was accomplished by the then ruler of the State in accordance with the stipulation of the Indian Independence Act of 1947 and that, too, after Pakistan had invaded the State. The Indian Dominion did not guarantee to the State any special rights and privileges, over and above those guaranteed to the other princely states which had acceded to India. In fact, the Instrument of Accession signed by Maharaja Hari Singh was a part of the constitutional arrangements which the Government of India had evolved and on the basis of which Indian States were invited to join the Indian Union.

 

INTEGRATION OF STATES

 

Jammu & Kashmir State, like the other princely states acceded on the basis of delegating to the Union Government powers in respect of foreign affairs, defence, communications and elections to the Union Legislature. There was no exception admitted specially in favour of the Jammu and Kashmir State and like all other princely states and the Unions of the States which had come into existence by the integration of smaller states Jammu and Kashmir also retained the right to convene a separate Constituent Assembly to frame a constitution for its governance. Constituent Assemblies were actually instituted in Mysore and the two states' unions of Travancore-Cochin and Saurashtra.

 

In April 1949, the representatives of the Constituent Assembly of India and the Premiers of the States decided in a meeting held in Delhi that the Constituent Assembly of India would frame the constitution for the acceding states and the constitutional provisions pertaining to them would also be incorporated in the Constitution of India. The National Conference leaders, led by Sheikh Mohamad Abdullah, refused to accept the decision of the Premiers' Conference and insisted upon the institution of a separate Constituent Assembly and a separate constitution for the Jammu and Kashmir State. The Indian leaders were not agreeable to place the Jammu and Kashmir State outside the purview of the Constituent Assembly of India and, therefore, convened a separate meeting with the National Conference leaders in Delhi in May 1949, shortly after the Premises' Conference had ended.

 

NEHRU-SHEIKH DIFFERENCES

 

What happened in the meeting is of historic significance. Sheikh Mohamad Abdullah, who led the National Conference delegation refused to accept the inclusion of the Jammu and Kashmir State in the Constitutional organization of India on the ground that Jammu and Kashmir State was a Muslim majority state and its inclusion in the Indian Constitutional organisations would subject the Muslims in the State to the dominance of the Hindu majority. He demanded that the State should have a separate constitutional arrangement and its relations with the proposed Indian Union should be limited to the provisions of the Instrument of Accession.

 

Nehru refused to accept the National Conference view-point. He told the Conference leaders that the Jammu and Kashmir State would have to accept the provisions of the Constitution of India in respect of the territorial jurisdiction of the Union, citizenship, fundamental rights, directive principles, the Union Government, Union judiciary and the Emergency powers of the President of India. He agreed to accept the convocation of a separate Constituent Assembly in Jammu and Kashmir, to draw up a separate constitution for the State Government. In such a case, he proposed that the provisions of the Constitution of India in regard to the princely states listed in Part B of the Constitution of India could also be applied in respect of Jammu and Kashmir.

 

The National Conference leaders, however, refused to relent and agree to any application of the provisions of the Constitution of India to the State and insisted that the State be kept outside the Union of India and its relations with the Union be guided by the stipulations of the Instrument of Accession. The Conference leaders went a step further and demanded the restoration of control over the state army by their government which they claimed would take over the defenses of the State after the Indian army was withdrawn. Commenting on the demand of the Conference leaders, M.K. Teng notes in his book "Kashmir-Article 370"-"They sought overtly to convey to the central leaders, that they did not recognise that the deployment of the Indian troops in the States was a part of the arrangements envisaged by the Instrument of Accession and the powers of the Government of India in regard to the defence of the State. The Conference leaders obviously presumed that the Indian forces had been deployed in the State to repel the invading armies of Pakistan and after that was achieved, they would be withdrawn and the defence of the State would be entrusted to the Muslim ranks of the State army which the Interim Government would in the meanwhile raise.

 

PLACATING CONFERENCE THE NATIONAL

 

An agreement was finally reached between the two sides which stipulated that the provisions of the Constitution of India with regard to territories of the Union, citizenship, fundamental rights and related constitutional safeguards, Directive principles of State Policy and the jurisdiction of federal court k would be extended to the state, subject to the S modifications that the domiciliary rules, called the State-Subject Rules, in force in the State, would not be impinged upon. The other provisions of the Constitution of India, including those pertaining to Article 238, which listed the Part B States, or the princely states, and the Constitution of State Governments in India would not be extended to the Jammu and Kashmir State. It was decided that a separate Constituent Assembly would be convened in the State to draw up a constitution for its government and also determine the future of the Dogra rule. The Conference leaders had for quite some time demanded the abolition of the Dogra rule and the appointment of a Head of the State who would be nominated by them. ni stu

 

MAHARAJA ABDICATES

 

On the advice of the Government of India, Hari Singh abdicated on 9 June 1949, left the State and appointed his son, the Regent of the State. Immediately after his removal, the National Conference leaders launched a surreptitious campaign to undermine the agreement they had reached with the Indian leaders at Delhi. The matters came to a head when the draft provisions about Jammu and Kashmir, based upon the agreement reached between the Indian leaders and those of the National Conference earlier in Delhi, was sent to the latter for their approval. The Working Committee of the National Conference finally rejected the draft provisions. It said that National Conference could not accept the application of any provisions of the Constitution of India to the State, No except in respect of the stipulations of the Instrument of Accession. Sheikh Mohamad Abdullah sent an alternative draft to Gopalaswami Ayyangar stipulated the application of only such provisions of the Constitution of India to the State which corresponded with the delegation of powers in regard to foreign affairs, defence and communications.

 

ARTICLE 370 COMES INTO FORCE

 

In October 1949, the National Conference leaders went to Delhi for fresh deliberations on the issue. The Constituent Assembly had almost completed its work on the framing of the Constitution of India.

 

In their negotiations with the Indian leaders, the Conference leaders did not budge from their stand. Ultimately the Indian leaders gave way and modified the draft stipulations to completely exclude Jammu and Kashmir State from the Indian Constitutional organisation. Article 370 as it was finally envisaged by the Constituent Assembly of India, stipulated that:

 

1. Jammu and Kashmir was included in the First Schedule of Article I of the Constitution of India which defined the territories of India;

 

2. No other provision of the Constitution of India was made applicable to Jammu and Kashmir State;

 

3. The powers in respect of foreign affairs, defence and communications were transferred to the Union Government in accordance with the stipulations of the Instrument of Accession;

 

4. The President of India was empowered to modify as the operation (not the provisions) of Article 370 with the concurrence of the State Government and subject to the final approval of the State;

 

5. A separate Constituent Assembly was proposed to be convened by the State Government to draw up a separate constitution for the Government of for the State.

 

It is of interest to note that when the draft provisions of Article 370 were presented to the Constituent Assembly of India by Gopalaswami Ayyangar, Sheikh Mohamad Abdullah and other National Conference members of the Constituent Assembly sulked away and did not join the deliberations on account of some procedural 2 wrangle. The Conference leaders watched the proceedings of the Assembly in grim silence. After the draft was adopted by the Constituent Assembly without any dissent, Sheikh Mohamad Abdullah wrote a sharp rejoinder to Gopalaswami Ayyangar asking him to reconsider the entire proceedings of the consembly, failing which he threatened to resign from the Constituent Assembly. "As I have told you before", Sheikh Abdullah wrote to Mr. Ayyangar, "I and my colleagues have been extremely pained by the manner in which things have been done and, after careful consideration of the matter, we have arrived at the conclusion that it is not possible for us to let the matter rest here. As I am genuinely anxious that no unpleasant situation should arise, I would request you to see if even now something could be done to rectify the position. In case I fail to hear from you within a reasonable time, I regret to say that no course is left open for us but to tender your resignation from the Constituent Assembly". Nehru and other Indian leaders pleaded with Sheikh Abdullah and his colleagues not to resign as that would cause India embarrassment at the United Nations.

 

The Conference leaders virtually demanded a separate Muslim State, which did not form a part of the secular India and which underlined the recognition of the separate political identity of the Muslims of the State. As later events proved, the Conference leaders aimed at weaning away the State from Pakistan and after that was achieved, pull it out of India and reconstitute it into an independent Muslim State.

 

The exclusion of the State from the Constitutional organisations of India gave a free hand to the National Conference to accomplish total Islamization of the State. In the absence of any constitutional guarantees, the Hindus and other minorities had no safeguards to protect their rights. The National Conference government adopted several drastic measures to secure the Muslim ascendancy in the State. These were .

 

(1) they dispossessed the Hindus and other minorities of all land by a process of land-grab under the cover of land reforms;

 

(ii) they divested the Hindus and other minorities of their rights in industry, trade, commerce, in the name of socialism and then diverted finance and resources to build a new Muslim middle class of vested interests, rich and neo-rich land holders and business magnates;

 

(iii) they marginalised the Hindus and other minorities from all political institutions by various devious means of securing the Muslims pre-eminence in all representative bodies including all local bodies;

 

(iv) they eliminated the Hindus and other minorities from the administrative organisation of the State; totally communalizing its administration and government;

 

(v) they imposed a limitation on the admission of Hindus to educational institutions and institutions of technical training and university by fixing quotas on the basis of population ratios.

 

As time went by and the process of Islamization of the State continued, the Hindus were rapidly eliminated from the government, economic organization and the social life of the State. During the last forty years about 3 lakh Hindus were forced to migrate from the State in search of livelihood.

 

After the fall of Interim Government in 1953, a measure of change was introduced in the special provisions envisaged by Article 370. Provisions of the Constitution of India pertaining to citizenship, fundamental rights, federal judiciary, elections and emergency powers of the President were made applicable to the State.

 

However, severe reservations were placed on the application of these provisions and the right to equality and right to protection against discrimination to perpetuate Muslim precedence and Muslim pre-eminence in the government, economic organization and society of the State. Several major restrictions still continue to govern the right to equality and protection against discrimination on the basis of religion and creed in the State and the Muslims in the State still enjoy pre-eminence in its society and government. It is unbelievable, yet it is that Islam is unofficially recognized as the State religion in Jammu and Kashmir. The terrorists, who are at this time calling the shots in Kashmir, seek to go one step further. They want Islam to be recognized as the official religion of the State.

DISCLAIMER:

The views expressed in the Article above are Santosh Kaul’s personal views and kashmiribhatta.in is not in any way responsible for the opinions expressed in the above article. The article belongs to its respective owner or owners and this site does not claim any right over it. Copyright Disclaimer under section 107 of the Copyright Act of 1976, allowance is made for "fair use" for purposes such as criticism, comment, news reporting, teaching, scholarship, education, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing."

Courtesy:- Santosh Kaul and 1992 February Koshur Samachar