Tuesday, August 16, 2016

The Kashmir Blog of Kunal Chattopadhyay: 1 – Article 370

For decades, nationalist official propaganda and media mythmaking have created a completely false impression about the situation in Kashmir among the minds of average middle class Indians. The aim of this series of notes is to take up many of the propaganda issues, both long term and short term. But two or three core issues will come up repeatedly. One of these is Article 370 of the Indian Constitution and the supposedly privileged position of Jammu and Kashmir State.

This note will deal mainly with the Instrument of Accession and the origin and transformation of Article 370.

When the British left India, their erstwhile colony was divided into two states, India and Pakistan. There were also a large number of princely states, ranging from handkerchief sized territories to large ones. These had different histories, and the question of what would happen to them was uncertain. It is easy to get into digressions, but still, a few points need to be made. The British Empire in India, and the wider sphere of influence they sought to build, did not fit with the map of any previous empire. Thus, through a series of wars in the East and North East, Burma, and a number of other territories were defeated. Territories were added to the empire ruled first from Calcutta and then from Delhi, which had never belonged to the Mughals, or the Turks. On the other hand, attempts to conquer Afghanistan failed due to Afghan opposition. So did attempts to conquer Nepal. Not that Nepal had ever been part of India, but I write this because a silly map is doing the rounds where it is claimed that till a certain date Nepal was part of India.

Two large princely states had different positions. The Deccan, ruled by the Nizam, had been very much a part of India in any sense. One of the most systematic bootlickers of the British, the Nizam had made immense wealth by ruling a territory that he was permitted to exploit because he stood by his masters. As a result, there was both nationalist and class struggle in his territory, and when the Indian government carried out what it called its police action there was much support. The subsequent struggle between CPI-led peasants and the Indian regime is a separate story, but unification in India was not opposed by any save the Nizam and his immediate circle.

Different was the case of Jammu and Kashmir. We need to discuss, in a separate post, why Kashmir valley and the whole princely state were not one and the same. Here, I will provide a very short comment. The Mughals conquered Kashmir in 1586, and saw it as a pleasure area. From the Mughals Kashmir passed to the Afghan empire of Ahmad Shah Abdali, and then to the rising Sikh empire of Maharaja Ranjit Singh. It was Ranjit who gave Jammu as a jaigir to his nobleman, the Dogra Rajput chieftain Gulab Singh. After the death of Ranjit, during the turbulent times in the Lahore court, Gulab Singh played a two-faced game, ultimately helping the British through his activities. As a result, the British imperialists rewarded him with Kashmir in the Treaty of Amritsar (1846). For this, Gulab Singh paid a one-time sum of 75 lakh rupees, and a token yearly tribute – a dozen pashmina goats, one horse and three pairs of Kashmiri shawls. Kashmiri nationalists were subsequently to call this a bill of sale, not a treaty. Hunza and Gilgit were added much later. In the case of Ladakh, it was a territory that Tibet and the Mughals both sought to control. More often controlled by Tibet but with an autonomous Ladakhi ruler, Ladakh was conquered to Ranjit Singh’s empire by Zorawar Singh. Ladakh too went to Gulab Singh, and after the crushing of a rebellion it was incorporated into his territory of Jammu and Kashmir.      

So most of J&K had fairly limited relations with the British. Some parts had very limited relations even with the Mughals. While Pakistan has religiously (pun intended) claimed that Kashmir belongs to Pakistan because its population was majority Muslim, Muslim Kashmiris did not see themselves as happily belonging to the Mughal empire and saw the Mughal conquest as their loss of freedom, amnd as we will see below in 1947 most Kashmiri Muslims were hardly convinced they should go to Pakistan.

In 1935, when the Government of India Act was passed, creating a central legislature with some amount of power (compared to what had existed in the past), in order to offset the weight of nationalists, a plan was made to bring in the princes. So, princely states like Kashmir were neither fully in nor out of India. What was important, though, was that the Indian National Congress was formally restricted to British India. So, for that matter, were other parties. The princes were semi-feudal autocrats under British protection, and they alone claimed to speak for their states when at least a restricted (13%) franchise was used to elect the Constituent Assembly of India.  On the other hand, the princes could not simply ignore the fact of independence, though a few tried to.
Dogra rule had been every bit as exploitative and brutal as Mughal or Afghan rule. In addition, Dogra rule had been marked by community-linked sectarianism. Apart from a small class of Muslim jaigirdars, Muslims had been deprived of all opportunities. Even a moderate and a British loyalist like Sir Albion Bannerjee found it difficult to stomach the treatment meted out to the Muslims, and in an article in 1929, he condemned the role of the Maharaja of Jams and Kashmir, saying that he treated Muslims like dumb cattle. When upper class elements loyal to the Maharaja wrote in defence of his rule, one young teacher supported Bannerjee by a letter to an editor. This was Sheikh Muhammad Abdullah.

A firing in 1931 gave rise to serious turmoil. Out of this there emerged the organisation Jammu and Kashmir Muslim Conference. Despite the name, its leaders, notably Sheikh Abdullah, explained from the beginning that their organization would not be a communal or a sectarian organization, but a national one. The early demands of the Muslim Conference included a representative government, and an end to the discriminatory attitude to Muslims in matters of education and jobs. After several years of agitation, Maharaja Hari Singh proposed to set up a Praja Sabha (House of the Subjects), but with 70% nominated members and with very limited powers. The Muslim Conference denounced this as a sham assembly, but decided to take part in the elections nonetheless. Meanwhile, a conflict between orthodox Muslim currents and the current headed by Abdullah resulted in the departure of the conservatives and the formation of the Azad Muslim Conference. In the elections, the Jammu and Kashmir Muslim Conference defeated its opponents and thereby proved the popularity of its political line.  In 1938 the leaders of the J & K Muslim Conference held discussions with the poet Iqbal, as well as with Jawaharlal Nehru. These discussions led them to propose a change in the name of the organisation to the Jammu and Kashmir National Conference. This was a conscious attempt to combat both the orthodox Muslim trend and Hindu communalism. The National Conference developed a fairly radical programme, much to the left of the Congress, and was staunchly disliked by Hindu communal forces.

In 1946, the National Conference launched the “Quit Kashmir” movement against the Maharaja. The future of India was at that time still uncertain – i.e., whether there would be partition or not, and what the relationship between the princely states and the post-colonial state/s would be. The National Conference wanted the people of Kashmir, rather than the autocratic Maharaja, to have the power to determine Kashmir's future. As late as 2nd October 1947, this was the position taken in public by Sheikh Abdullah. Interestingly, in the period between the independence of India and Pakistan and the Pakistan-backed tribal raids in Kashmir, Maharaja Hari Singh did not want to join either country. He was trying to manoeuvre himself into the position of an independent ruler. At that time, too, Hindu communalists encouraged him, for they did not want a Hindu ruler to accede to secular India.

The question of accession and the legal issues:

So the Hindu communal organisation J&K Hindu Sabha strongly campaigned that a Hindu ruler should not join secular India. The Muslim communal Muslim Conference, formed by a minority from the National Conference, demanded an independent Kashmir and a separate constitution, but had a definite pro-Pakistan tilt. The National Conference, the most popular organisation, was not consulted by the Maharaja. In the event, Pakistan, India and the Maharaja were all agreed in affirming that the people need not be directly consulted at all. This has major implications for subsequent developments and the claims made about them.

Under Section 7(i) (b) of the Indian Independence Act, 1947, the suzerainty of the British Crown over the Indian princely states lapsed with effect from 15 August 1947. On November 1, 1947, Mountbatten, in his capacity as Governor General of India, wrote to his counterpart, M. A. Jinnah, Governor General of Pakistan, suggesting that when the ruler and the majority of subjects belonged to different communities, and where the state had not acceded to the Dominion whose majority community was the state’s own, the final decision of accession should be decided by an impartial reference to the will of the people.[i]

Meanwhile, however, certain practical developments had occurred. Fierce communal riots wracked the northern part of India in the second half of 1947, as Hindus, Sikhs and Muslims set upon each other. Muslims in India and the other two communities in Pakistan were violently attacked. There was a historically unprecedented transfer of populations. And the impact spilled over porous borders into the princely states. Many Muslims were attacked and harmed in the Jammu region. In response, Muhammad Ibrahim Khan, a member of the Praja Sabha, led an uprising of Muslims of the Poonch area. On 24th October 1947, Pakistan started aiding them in a massive way, and Major General Akbar Khan led a large contingent of Pathan troops. By all contemporary accounts, the Pathan tribesmen were extremely brutal, and there was a widespread revulsion against them. It was in this situation, in order to salvage something, that Hari Singh decided to accede to India. Meanwhile, displaying his typical concern for the subjects, he and his entire administration left Kashmir for the safer Jammu area, and it was the National Conference that took up the twin tasks of administration as well as resistance. Both the memoirs of Abdullah, and contemporary news-reports and eyewitness accounts testify to this. The claim, in recent years, by Hindu communalist elements like Jagmohan, about how the RSS volunteers aided the Indian army, can only be branded as contemptible lies or laughable jokes. But what did happen was that the accession brought the Indian army into the picture, and when it began to push the Pathans out, the Pakistan army formally entered the scene. By the time the war ended, Pakistan was occupying the Mirpur division, contiguous with Jammu, the Muzaffarabad division close to the Kashmir valley, and Gilgit in the far north, while India was in occupation of Jammu, the Kashmir valley, and Ladakh.

While every power – India, Pakistan and on occasion the son of the former Maharaja, has mentioned the people of Kashmir, in fact for all of them; these people did not matter. The independent Kashmir that Hari Singh desired was a Kashmir of the semi-feudal landlords. When he thought that Pakistan-backed aggression might lead to a loss of the independence of Kashmir, he did not turn to the people of Kashmir. Indeed, it would have been impossible for him to do so, given the hatred in which the people held the Dogra rulers. Instead, he turned to India, in order to save his own interests. The Government of India, too, began acting hypocritically from the beginning. In the period before the tribal invasion, when both Pakistan and India had been trying to get Kashmir to accede to their side, Pakistan had been willing to sign a standstill agreement with Hari Singh, but the Indian government wanted further negotiations even before this simple agreement to continue the existing situation would be signed. Ultimately, no agreement was signed at all. When the invasion began, it was made clear to Hari Singh that unless he signed the Instrument of Accession he would get no help. Indian scholars who defend the Indian action, like Jyoti Bhusan Dasgupta, assert that this did not indicate any bad faith on India’s part.[ii] Subsequent history shows otherwise. The new rulers of India were determined to bring Jammu and Kashmir within India, but at the same time to preserve the fiction that this was the will of the people of the state, expressed democratically. The Indian position, from 27 October 1947 onward for a considerable time, as long as it was a matter of public utterances at international fora, was that: “To remove the misconception that the Indian Government is using the prevailing situation in J & K to reap political profit, the Government of India wants to make it very clear that as soon as the raiders are driven out and normalcy is restored, the people of the State will freely decide their fate, and that decision will be taken according to the universally accepted democratic means of plebiscite or referendum. To ensure free and fair plebiscite, the supervision of the United Nations will be necessary.”[iii]

Mountbatten’s letter to Jinnah was part of this ploy. By then, Hari Singh had signed the Instrument of Accession. So the Head of State of India was offering a seeming democratic solution. At that date, it seemed to Pakistan that such a democratic solution was inimical to Pakistan’s goal of gobbling up Jammu and Kashmir, while it seemed to India that it was something that would favour India. In fact, at that date, it might have been the case. But the idea of a plebiscite was a dangerous one, for that could create a precedent in many other princely states, for example in Manipur, where the people were fighting for a democratic constitution in an independent Manipur (the Maharaja of Mnipur was forced to sign the Instrument of Accession and the Constitution of Manipur was summarily dismissed in 1949). So plebiscite was eventually watered down till it was totally lost.

So the Instrument of Accession in Jammu and Kashmir was signed when Hari Singh found that his options were: to be overwhelmed by Pakistani invasion, to align with radical nationalists, who, if they managed to halt the Pakistanis, would throw him out next, or to line up with India.

The day after the signing of the Instrument, Indian troops were airlifted to Srinagar, the capital. An undeclared war began. On 2 November 1947, Indian Prime Minister Nehru in a radio broadcast reiterated that the accession of Kashmir should be settled by a reference to the people.[iv] Thus, Mountbatten was not acting against his Prime Minister. The two had similar stands, and this seems to have been based on an understanding, probably correct if we consider that particular moment, that if in a referendum the choice was posed between democratic India with some scope for autonomy and a landlord dominated Pakistan, the majority, including the then most powerful nationalist Kashmiri organization, the National Conference, would opt for India. But the formal position is, India did make this offer, but never kept faith.

The Instrument of Accession signed by Hari Singh had certain important points:
1.      He acceded to India only in respect of defence, external affairs and communications.
2.      The terms of accession were not to be changed without the ruler’s consent.
3.      The Instrument did not commit the sovereign to acceptance of any future Constitution of India.
4.      All powers except those specifically acceded remained the powers of the ruler of Kashmir.[v]

The state of Jammu and Kashmir was then governed by the Jammu and Kashmir Constitution Act of 1939. As Dr. A.S. Anand, former Chief Justice of the Supreme Court of India, pointed out in his Ph.D thesis, the instrument thus clearly indicated that the state was to be governed by the old Constitution Act till the people of Kashmir formed their own constitution. The state had voluntarily surrendered three powers only and the government of India could not enlarge the space of its jurisdiction at its own discretion. [vi]

As noted, on 2nd November, 1947, Nehru in a radio speech stated that the accession of Kashmir should be settled by a reference to the peoples. But when the UN Security Council adopted a resolution in favour of a plebiscite,  the Indian Government was caught on a the wrong foot. Formally, India accepted the UN Commission for India and Pakistan (UNCIP)’s 13th August, 1948 resolution on a plebiscite, but by 12 January 1949, Nehru was writing to Sheikh Abdullah that the plebiscite would perhaps never be held.
From 21st April, 1948 to 2nd December, 1957 there have been a series of UN proposals for a referendum. The early democratic claims notwithstanding, India clearly rejected these proposals – on each occasion, due to plausible reasons, but making it clear that the Kashmir accession was becoming a non-negotiable issue.
Internally, the same contradiction between democratic claims and the reality were visible. On 27th May, 1947 Sir N. Gopalaswamy Ayyangar proposed the nomination of four members from Kashmir to the Constituent Assembly of India. When objections were raised, he responded that if as a result of a plebiscite Kashmir left India, India would not stand in the way of Kashmir’s separation.[vii] On 16th June, 1947, Sheikh Abdullah, Mirza Mohammed Agzal Beg, Maulana Mohammaed Syed Masoodi and Moti Ram Bagha took the pledge and signed the register of members of the Constituent Assembly of India.[viii]  

By then negotiations had began on the terms of Kashmir’s membership of the Indian Union. It was agreed that Kashmir was to have its own constitution and the Constituent Assembly of Kashmir was to determine in respect of what other subjects the state would accede.[ix]

Already both the Government of India and the Kashmiri nationalist leadership were moving away from a democratic principle, though a case has been made out that Abdullah tried to stick as close to the principle as possible.[x]  Instead of first organizing elections, they were negotiating among themselves. Yet in October 1947, Abdullah had asserted that the establishment of democracy should come first, and any question of accession should be discussed later.

According to even scholars critical of India, like Alastair Lamb, a plebiscite at that stage would have resulted in the state according to India, because Abdullah, finding full independence impossible, preferred India. In that case, why did Indian leaders demur? It is only possible to speculate. But perhaps the supposition that this might lead to complications elsewhere would not be very fanciful. So they opted for support to Abdullah as someone, in Nehru’s words, “who would deliver the goods to India”. So, in March 1948, Abdullah became Prime Minister of Jammu and Kashmir, but the elections to the Constituent Assembly were held only in 1951. And these elections were typical of elections in Kashmir. The National Conference won all 75 seats uncontested, as every opposition candidates’ papers were rejected.

It is likely that the National Conference would have won a majority of sets in a fair election. But these suppositions –- that India could have won a plebiscite, that Abdullah could have won in fair polls – are simply hypothetical conjectures and they do not negate the fact that in neither case were democratic means used.

Meanwhile article 306A of the Indian Constitution had been drafted by Ayyangar (this was, with modification, the future article 370). But after Abdullah and his fellow Kashmir delegates had accepted one version, a different version was moved and passed. One consequence of this change was that in the earlier version, Abdullah’s dismissal would have been a constitutional impossibility.

The article provided that the power of the Indian Parliament to make laws for Kashmir would be limited to those matters which corresponded to the Instrument of Accession, and those which were accepted by the Government of the state, this last being defined as “the person for the time being recognized by the president as the Maharaja of Jammu and Kashmir acting on the advice of the council of Ministers for the time being in office under the Maharaja’s proclamation dated the fifth day of March, 1948”.

The Article further provided that even this concurrence was temporary, and had to be ratified by the state’s Constituent Assembly. The authority of the Government to give concurrence was to last only till the Constituent Assembly of the state was convened. If this means what it says, the power of concurrence disappeared the moment, in 1951, the Constituent Assembly met. Yet, successive state governments, put into office through rigged elections, have continued to give “concurrence” even after 1956, when the Constituent Assembly of Kashmir ceased to exist. Till 1986, Article 370 has been repeatedly amended. Even Article 356 of the Indian Constitution, by which an elected state government can be dismissed by the Central Government at the report of the Governor (who is always a stooge of the Central Government) has been applied.

In 1968, in the Sampat Prakash case, the Indian Supreme Court delivered an outrageous judgment. It brushed aside Art. 370, and ruled that the President of India called go on adding to the Union’s powers with the concurrence of the State Government.[xi]

Despite Abdullah’s conditional preference for India, he had never accepted the accession as final. He had hoped that with the help of the Indian Constitution, a secular, democratic polity could be built up in Jammu and Kashmir, and a neutral state, patterned somewhat after Switzerland, could eventually emerge.  When it became clear that on the core issue of accession he could not be budged, he was removed. From 9th August, 1953 to 8th January, 1958, from 30th April, 1958 – 6th April, 1964, and from 8th May, 1965 to 2nd January 1968, he was in prison. At no stage was he tried and convicted. A whole series of Indian scholars and journalists have spilled quarts of ink trying to prove that he took advice from Moscow, from the US, etc .[xii]  The simple reality seems to be, in refusing to be a stooge of Delhi, he left India’s rulers no option but to incarcerate him. The subsequent ministries of Bakshi Ghulam Mohammed, G.M. Sadiq, Syed Mir Quasim, were formed by blatant rigging.[xiii]  Using such pliant agents, by 1964, Jammu – Kashmir was made a simple province. Formally, Article 370 was retained. But the democratic aspirations of the people of Kashmir were totally thwarted.

[i] Durga Das, Ed, Sardar Patel’s Correspondence, 1945-50, Ahmadabad, 1971, p. 73.
[ii] See J.B. Dasgupta, Jammu and Kashmir, The Hague, 1968.
[iii] Quoted in Blood in the Valley: Kashmir Behind the Propaganda Curtain, Bombay 1995(?), p.29.
[iv] S. N. Dhar, International Relations and World Politics Since 1919,  New Delhi, 1982, p.612.
[v] Government of India, White Paper on Jammu and Kashmir, Delhi, 1948, p. 17.
[vi] A.S. Anand, The Development of the Constitution of Jammu and Kashmir, Delhi and Jammu, 1980, P.121.
[vii] Constitutent Assembly Debates, Vol. VIII, P. 373
[viii] Ibid, p.95.
[ix] Durga Das, Ed, Sardar Patel’s Correspondence,, p.276.
[x] See A. G. Noorani, ‘Myths and Reality’, in Frontline, Volume 27 - Issue 03 :: Jan. 30-Feb. 12, 2010, http://www.hinduonnet.com/fline/fl2703/stories/20100212270308900.htm (accessed on 22 November 2010)
[xi] AIR 1970, SC, 1118.
[xii] Prof. Jyoti Bhusan Das Gupta in a remarkable feat, supposes both kinds of influence. J.B Das Gupta, Jammu and Kashmir,  Ch. 7
[xiii] In 1957 Bakshi’s party polled 96% votes. In 1962 Nehru wrote to Bakshi advising him to lose a few seats in the future (cited in M.J. Akbar, India – The Siege within, Harmondsworth, 1985, P 258). In 1972, by Mir Quasim’s admission fair polls would have meant a victory for the Plebiscite Front, Formed by Afzal Beg. (Mir Qasim : My life and times, Delhi, 1991, p106)

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