Article 370 meant to extend Indian sovereignty over J&K

Article 370 has been the foundational basis for Jammu & Kashmir being a part of India and not a historic blunder as it has been widely portrayed in the wake of its abrogation by Parliament last week.

Blaming Jawaharlal Nehru for this is even more illogical as Kashmir joined India primarily because of his consistent resolve to work with both the Sheikh Abdullah-led National Conference and his cabinet colleagues, especially Sardar Patel, while waging the international battles with Pakistan, and in the United Nations.

At the time of Partition, all the Princely states except Junagarh, Hyderabad and J&K had opted for either India or Pakistan. The Dogra Maharaja Hari Singh of J&K had sought a ‘Standstill Agreement’ with both. Pakistan signed, India asked for more consultations. That is because the Muslim League had been trying to persuade the Maharaja, through his Prime Minister Ramachandra Kak, to accede to Pakistan. But Hari Singh dismissed Kak and was toying with holding a referendum to decide Kashmir’s future. The Pakistani leadership panicked as in Jinnah’s strategy, the “people of Kashmir” could “go to hell”. When Pakistani raiders attacked Kashmir, Hari Singh sought India’s help, and it was under such circumstances that he signed the Instrument of Accession (IOA).

However, unlike other such IOA signed with the Princely states, this one specified that the Indian state would make laws only in the domains of defence, foreign affairs and communications and, all residuary powers were vested in the state government. In fact, the IOA stated: “Nothing in this Instrument affects the continuance of my Sovereignty in and over this State, or, save as provided by or under this Instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.”

Before August 15, 1947, Patel had, in fact, not paid much attention to the Muslim-majority state’s accession and was prepared to accept the ruler’s decision to accede to Pakistan. His aide V Shankar quotes Patel’s letter written on September 13, 1947, that “if [Kashmir] decides to join the other Dominion (Pakistan)”, he would accept the fact. Patel believed Hyderabad to be far more important since it lay in the heart of Indian territory. In a meeting with Pakistan Prime Minister Liaquat Ali Khan, who argued that if Junagadh belonged to India because of its Hindu majority (even though its Muslim leaders had acceded to Pakistan), then Kashmir surely belonged to Pakistan. Patel replied: “Why do you compare Junagadh with Kashmir? Talk of Hyderabad and Kashmir and we could reach agreement.” But after Pakistan’s acceptance of the accession of Junagarh, a Hindu-majority state, and the raiders’ invasion, Patel was firm on “driving the enemy back” and retaining the state at all costs.

While Article 370 of the Indian Constitution, negotiated for six months between May and October 1949 between the state leadership led by Sheikh Abdullah and Mirza Afzal Beg and the central leadership led by Jawaharlal Nehru and Sardar Patel, granted a special status to J&K, this had significantly become the instrumentality for extending Indian sovereignty to J&K. That is how, Article 1 of the Indian Constitution clearly specified bringing J&K under the territorial jurisdiction of India.

At the first set of meetings that took place at Patel’s residence on 15-16 May 1949, cabinet minister N G Ayyangar, who prepared a draft letter from Nehru to Abdullah summarising the broad contours of their agreement, had sent it to Patel with a note: “Will you kindly let Jawaharlalji know direct as to your approval of it? He will issue the letter to Sheikh Abdullah only after receiving your approval.”

While Nehru was willing to concede maximum political autonomy to J&K, he resolutely ensured that it would not be at the cost of the Indian State. There were two central points of contention.

First, Sheikh Abdullah opposed the merger of state forces and the Indian Army, though before the accession, when Maharaja Hari Singh was reluctant to do so, Abdullah had insisted that the separate identity of the state army should cease and it should be taken over by the Indian Army, the basis of Nehru’s trust in him. Later, Abdullah changed his position and demanded a separate state army. This directly challenged the Indian State’s monopoly over military instruments of power, with dangerous implications for national security. The Centre rejected his demand.

Second, the National Conference persistently argued that the Jammu and Kashmir Constituent Assembly was a sovereign body independent of the Constitution of India. This amounted to not only excluding J&K from the jurisdiction of the Union, but also making all federal instrumentalities inoperative, as there would be no remedies if the Constituent Assembly of the state transgressed limits and violated the Constitution of India. Nehru and Patel rejected this position and insisted that the provisions in the state constitution must not be inconsistent with the basic structure of the Constitution of India.

Later, however, Patel’s patience with Sheikh began to wear thin as the latter began to seek changes in the agreed draft. Indeed, it was Patel’s impatience, nay frustration, that led him to take his eye off the ball at a crucial moment when Nehru was abroad and the first chinks were introduced into the special law for J&K – Article 306-A, which later became Article 370. On 15 October 1949, Ayyangar wrote to Patel saying that in a meeting with him just after Nehru had left for America on a state visit, Abdullah had expressed grievances about the draft that would go to the Constituent Assembly and had threatened to resign from it if changes were not made. Ayyangar sought Patel’s approval for the changes. Patel replied the next day: “I do not at all like any change after our party has approved of the whole arrangement in the presence of Sheikh Sahib himself…In these circumstances, any question of my approval does not arise. If you feel it is the right thing to do, you can go ahead with it. Yours sincerely, Vallabhbhai Patel.”

When Nehru returned, Patel wrote to him: “After a great deal of discussion, I could persuade the [Congress] party to accept.”

Patel’s differences with Nehru had more to do with India’s decision to go to United Nations and on who wielded the real power in J&K: Maharaja Hari Singh or Sheikh Abdullah. On the first issue, Patel insisted that Kashmir’s accession to India after signing the IOA was complete and irrevocable and the plebiscite offer was an unnecessary complication. While Nehru agreed on the question of IOA, he conceded Mountbatten’s suggestion of offering a plebiscite for two reasons. First was dictated by military reasons as India wanted to avert an all-out war with Pakistan, without which the whole of J&K could not be liberated. Second, he was not averse to securing its popular ratification as that corresponded to Congress’ principled position that “sovereignty must reside in people’s will”, Maharaja Hari Singh’s desire and Sheikh Abdullah’s public position. This was more so because Nehru was confident of winning the plebiscite, if held in a timely manner. However, once this issue got embroiled in the Cold War politics of the UN, Nehru turned his gaze inwards and argued that since India’s basic commitment was to ascertain the wishes of the people of J&K, this was best accomplished by convening a separate Constituent Assembly to determine its future and to draw up a constitution for it which would endorse the special status of J&K within the Indian Constitution.

Second, Patel distrusted Sheikh and believed Hari Singh to be the ultimate constitutional authority in the state. For Nehru, Sheikh Abdullah and the National Conference were vital assets because they shared his faith in secularism, and herein lies the nub of the problem why BJP has doggedly tried to blame Nehru alone for the Kashmir ‘problem’. Sheikh had affirmed unequivocally that the National Conference “did not believe in the two-nation theory, or in communalism…We believed that religion had no place in politics.” And, this Nehru believed “helped our thesis of nationalism not being related to religion. If the contrary thesis were proved . . . it would have a powerful effect on the communal elements in India, both Hindu and Muslim. That is of extreme importance to us—that we don’t by taking some wrong steps in Kashmir create these terribly disruptive tendencies within India.” BJP’s criticism of Nehru and Article 370’s special status to Kashmir, therefore, has to be seen as an ideological battle of ideas and his vision of secular India that they are determined to overturn with a majoritarian Hindu India.

(The writer author of Demystifying Kashmir and State, Identity and Violence: Jammu, Kashmir and Ladakh)