Article 370: More sinned against than sinning

Most people in the country outside Jammu and Kashmir always carried this impression that Article 370 of the Indian Constitution as a special provision for the state of Jammu and Kashmir was responsible for separatism, anti-India feelings among certain sections and possibly militancy as well, and thus were generally supportive when the central government in August 2019 hollowed out Article 370 and abrogated Article 35-A.

This action was more in keeping with the ruling party’s (previously Jansangh) consistent opposition to Article 370 right from the time the Constitution was promulgated on 26^th January, 1950. The opposition to the Article was also ideological. However, if we search deeper, the awareness about the history and background of Article 370 is often deficient.

Lack of awareness about the history of Article 370

But hardly are common people aware of the fact that Article 370 came to be included in the constitution with the concurrence of the drafting committee of the duly elected constituent assembly headed by Dr B.R. Ambedkar and approval of the constituent assembly dating back to November 1949 when the Constitution of India was finalized.

Very few would know that the five members of the Constituent Assembly from Jammu and Kashmir led by Prime Minister of the princely state Sheikh Mohammad Abdullah argued vociferously for this special provision to secure internal autonomy for the state which they knew the majority population of their state desired in preference to Pakistan and that Maharaja also wanted an autonomous state at that point of time when the future of the princely state was uncertain with Pakistan having already laid claim to the Muslim majority state citing the partition formula and licking its wounds over Hyderabad and Junagarh.

It is also not so well known that the then Indian government led by Pandit Jawahar Lal Nehru and Sardar Patel finally agreed with the proposal of the members from Jammu and Kashmir and secured the approval of the drafting Committee headed by Dr Ambedkar as well as the Constituent Assembly, the elected body that was constituted for framing India’s constitution.

The chapter titled Kashmir-Union Negotiations on Article 370 in late A.G. Noorani’s book, ‘Article 370, A Constitutional History of Jammu and Kashmir’ records that Prime Minister of Jammu and Kashmir princely state Sheikh Mohammad Abdullah in his letter of 17^th October, 1949  to N.

Gopalaswami Ayyangar, member drafting committee and minister in-charge Kashmir Affairs threatened to resign along with his four other colleagues from the membership of constituent assembly over the drafting of Article 306-A which later became Article 370 and in response just the next day on 18^th October, Gopalaswami, after having assured him about the draft as approved by the constituent assembly, advised him not to resign and wrote, ‘I do not consider therefore that there is any justification for your entertaining any idea of resignation from the constituent assembly.

The step if taken would produce the most unwelcome and serious repercussions in Kashmir, India and the world, and I must ask you to communicate with the Prime Minister before you decide on anything like it. For myself, I shall pass on to him your letter and this reply of mine to it.’

Such was the importance of Article 306-A as it had a connection with the accession itself and the India-Pakistan dispute, then raging in full world view.

The seeds of Article 370 were sown by Maharaja’s proclamation of 5^th March 1948 in which he declared that a national assembly will be convened to frame the constitution, ‘a fully democratic constitution to ensure the contentment, happiness and moral and material advancement of my beloved people’.

This proclamation reflected the will of his people to have their own constitution and this is the reason why Jammu and Kashmir did not accept, unlike other princely states, Part B of the Constitution of India which contained provisions uniformly for the governance of the former princely states. So barring the subjects of Defence, External Affairs and Communication for which the state of J&K had acceded to the union and was to be governed by constitutional provisions pertaining to these, in respect of all other subjects the state was to be governed by its own constitution and laws. Article 306-A, later Article 370 was therefore necessary as a means to achieve these ends of self- governance.

It is also generally believed that Sheikh Mohammad Abdullah and his colleagues in National Conference who had thrown their lot with secular India in preference to Muslim Pakistan also believed that the UN mandated plebiscite may become difficult to win for India unless the princely state with its Muslim majority population retained its autonomy.

It is another matter that after the threat of UN plebiscite receded and international opinion in favour of Pakistan cooled off, it was during Nehru’s period that inroads into the internal autonomy started getting traction and scores of constitutional provisions pertaining to subjects other than defence, external affairs and communication extended  through the nineteen fifties and sixties after the arrest and detention of Sheikh Mohammad Abdullah. Then finally in 1965, the state assembly itself amended the constitution to change the nomenclature from the Prime Minister to Chief Minister and Sadar-i-Riyasat to Governor. The state flag continued but both the national flag and the state flag were to be used and honoured with the national flag getting precedence.

Erosion of Article 370

Ironically it was through Article 370 itself that hundreds of constitutional provisions were extended  to J&K. Gulzari Lal Nanda , Home Minister under Pandit Jawaharlal Nehru called Article 370 the ‘tunnel’ through which the whole constitution of India will flow into Jammu and Kashmir and assured the parliament that this was actually happening. Not to be left behind and feeling the heat from some opposition parliamentarians, particularly after the 1962 China war, Nehru also kept reassuring that Kashmir has been integrated and that erosion of Article 370 had already started and will continue. This was clear backtracking on the assurances that had been given during the initial years after accession and contained in the Delhi Agreement of 1952 between Government of India and Government of J&K.

Article 370 before the Supreme Court

So, when Article 370 cases came up before the Supreme Court post August 2019 reading down and abrogation, the said court upheld the actions of the government and the parliament. It neither considered the history of Article 370 nor the fact that it had been hollowed out fully in the absence of an elected government in Jammu and Kashmir. The same court had on a previous occasion held that the said article is unalterable being a basic feature of the constitution. However, this time it did not even find fault with the unprecedented downgrading of an autonomous state to Union Territory (UT) status, thereby creating a dangerous precedent for the future of the federal structure in this country which is indisputably considered to be among the basic features of the Constitution.

The eminent jurist Late Fali Nariman made two important observations on the SC judgement: one, that ‘the right process to remove the provisions under Article 370 would have been to amend them under the provisions of Article 368, second, about bifurcation and downgrading to the UT status that, ‘ he considers it incorrect that the bench which delivered the judgement relied on a judgement from 1960 which said that you have to at least approach the state legislature but not necessarily take its consent, which (according to Fali Nariman) is a serious violation of the federal principle.’

The story does not end here. Ironically, it were the enabling provisions of Article 370 that were always used including in August 2019 to extend the whole Constitution to Jammu and Kashmir. The Article in its amended form is still part of the Constitution but a dead letter. Poor Article 370, ‘more sinned against than sinning’.

( Khurshid Ahmed Ganai is a retired IAS officer of erstwhile J&K cadre and a former Advisor to the Governor)