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 Constitueut 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;
(a)
limitations on the application of the Constitution of India to the State,
(b)
the division of powers between the Union and the State,
(c)
extension of the provisions of constitution of India to the State,
(d)
modification and termination of the operation of Article 370, and
(e) 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. Infact, 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.
Dr. Mohan Krishen Teng (Co-Chairman) &
Chaman Lal Gadoo (Co-Chairman)
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