J&K- Yeh Rishta Kya Kehtlatha Hai- Part III

So Maharaja Hari Singh signed the Instrument of Accession with India.

Maharaja Hari Singh

What were its contents?

1. Defence, External Affairs, Communications (Post & Telegraph, Telephone, wireless, broadcasting, railways, etc) and a few other matters (electoral laws, jurisdiction of Indian Courts relating to these matters, etc.) were put under Indian government’s jurisdiction.
2. Maharaja retained sovereign power, authority and right over all other matters.
3. Indian government cannot directly acquire any land in J&K for developmental purposes; however Maharaja agreed to help in acquiring the land.

Terms of this Instrument were pretty much the same, but for the clause relating to land acquisition, as other Instruments signed by rulers of other Princely States.

The difference…? In all other cases, India took the next step of convincing them to sign Merger agreements. Because the State was at war with Pakistan, this was not done.

Along with the signing of the Instrument of Accession with India, the Maharaja appointed Sheik Abdulla as the Prime Minister of emergency administration; this was an interim arrangement till elections could be held.

Sheik Abdullah formed Muslim Conference (which was later renamed as National Conference) in 1932 and had been opposing the Maharaja and his feudalistic rule ever since. Maharaja Hari Singh gave in to some of the demands of Muslim Conference and set up “Praja Sabha” with limited powers. Muslim Conference obviously was not satisfied; launched a Quit Kashmir Movement against the Maharaja in 1946. Against this background, when he signed the Instrument of Accession with India, the Maharaja committed to Lord Mountbatten, who was then the Governor General of India that he would democratize the State Government and as a first step appoint Sheik Abdullah as the Prime Minister of Kashmir.

Sheik Abdullah

Towards the end of 1947 Nehru started discussing with Sheik Abdullah the terms of integration with India- a significant departure from the practice being followed for merging other States with India. Patel and V P Menon were the ones negotiating with the Princely States; even in the case of J&K, it was V P Menon who was holding discussions with the Maharaja till he signed the Instrument of Accession.

Then the next departure- Nehru appointed Gopalaswamy Ayyanger as a Minister in PMO for helping him in “Kashmir matters”.  Gopalaswamy Ayyangar had served as Prime Minister of Kashmir for six years from 1937 under Maharaja Hari Singh. Nehru said he appointed him because of his “intimate knowledge” of Kashmir problem. Obviously this was a serious encroachment on Sardar’s job and the Sardar rightly felt so. He resigned. Gandhiji brokered a compromise between Nehru and Patel and the Sradar stayed on.

It was Nehru-Gopalaswamy Ayyangar team which, after extensive discussions with Sheik Abdullah, produced Article 370 (Article 306 A at that time)- the most debated Article of the Indian Constitution during the past 60 years!

What does Article 370 say?

In simple words-

1. These are temporary provisions with respect to J& K.
2. The State of Jammu & Kashmir is an integral part of India.
3. In respect of the matters specified in the Instrument of Accession, the provisions of Indian Constitution will apply to J&K after getting the “concurrence” of the Governor of J&K acting on the advice of the Council of Ministers.
4. In respect of other matters, Indian Constitution will apply to the State after “consultations” with the Governor of J&K.
5. Residuary Powers of the Parliament will not be applicable to J&K. (Indian Constitution specifies 3 lists of matters- Union List containing matters in which the Parliament can legislate, State List containing matters over which the State Legislatures can legislate and Concurrent List where both Parliament and State Legislatures can pass laws. Parliament can also pass laws on any matter not specified in Concurrent or State Lists. This is called the Residuary Power of Parliament.)

Sounds simple? Not really. There are vehement “abolish 370” and “retain 370” groups. What are the objections of “abolish 370” group?

• Article 370 was a temporary provision till the Constituent Assembly of J&K could approve integration with India. Though the Constituent Assembly was “elected” in 1951, it did not approve integration. (There were serious allegations of rigging in the elections; Praja Parishad’s (opposition party) members were either jailed or their nomination papers were rejected; Sheik Abdullah National Conference candidates were elected unopposed in 73 out of 75 constituencies.) The fact that the Constituent Assembly did not approve the integration did not really matter, as it had lost the moral authority to decide on this issue.
• Both Nehru and Ayyangar had assured the Parliament many times that Article 370 would vanish gradually. 60+ years and it has still not vanished!
• Indian government has to secure the “concurrence” of the J&K government even in respect of matters it is competent to legislate.
• Many of the fundamental rights available to people in the rest of India are not available to the residents of J&K.
• J&K constitution confers certain rights to its people which are not available to Indians outside the State. For example persons who are not residents of J&K cannot buy land there. If a Kashmiri girl marries a non resident of J&K, she loses her right to property. Why these discriminations?
• It is border state. In case of emergency, India should be able to act fast and in a firm manner. The restrictions of Article 370 will impose serious impediments to India’s ability to counter the enemy in an emergency.

But then the “retain 370” group is not convinced; nor are the separatists. Why? Read on.

• “Concurrence of ” or “Consultation with” the Governor acting on the advice of the Council of Ministers does not really mean anything as the Governors are generally appointed by Indian government; elections are generally rigged and hence the Council of Ministers are not true representative of J&K people. Indian government passes laws taking concurrence of these puppets.
• Article 249, which empowers the Parliament to pass laws even on State matters in the national interest, was made applicable to J&K in 1986. This was a fraud. Not only did this seriously impinge on the State’s autonomy, it was a serious breach of the promises made in the Instrument of Accession.
• Plebiscite, as stipulated in the UN resolution was not held. Hence it is not known whether the people of J&K want to be part of India.
• Article 370 states that J&K is part of India. If you abolish, J&K will cease to part of India. (This silly argument is put forward by a senior advocate of Supreme Court.)

Many of the points raised by the “retain 370” group are either technical or theoretical.

While there were serious allegations of electoral malpractices in the 1951 and 1987 elections, there were no serious complaints about the others. Voter turnout was around 60%+ in most of the elections, highest being the 2008 elections. Allegations of rigging/ malpractices are prevalent everywhere. For example there were complains of “cash for vote” in Tamilnadu in the 2009 Loksabha elections; but the election was not set aside. A few years back elections in Bihar used to be marred by violence. What we need to see is the magnitude of the problem-are complaints/allegations so serious that they will vitiate the results? Also we are seeing these days how “representative” the MPs are of the views of the people- Government’s Lokpal draft is one example.

Cases of violence by terrorists were on the rise in late 70s. There were communal disturbances in the 80s. The State was incompetent to handle these issues. Indian government thought it fit to apply Article 249 to J&K- convincing to you and me, but not to the autonomists.

Plebiscite under the UN resolution was not held because one of the conditions of the UN resolution was that Pakistan should withdraw its army from J&K before plebiscite could be held and Pakistan did not.

Here a comparison to Sikkim would be appropriate.

But then we have to wait till Part IV.