It’s now almost four weeks since the Government of India took a hatchet to Article 370 of the Constitution of India, through a simple Presidential Order. Parliament then passed an Act to bifurcate the State into two Union Territories.
Jammu and Kashmir demands something be done about it. The fact that it is a Muslim-majority State is totemic to our secular constitution; the fact that three wars (four, if you include Kargil) have been fought over it is a symbol of our heroism and resolve; the fact that since 1990 some 45,000 people have died or been displaced in ongoing violence is a festering sore; the fact that the Indian Union let Kashmiri Hindus be chased out of their homes in 1990 by Kashmiri Jihadis is a disgrace.
Is it all Nehru’s fault?
During the Parliamentary debate – or what passes for it – allegations were freely made that it was all the fault of Nehru.
Nehru is not the culprit here – that’s for sure. If anything, the true believers in an independent Kashmir blame Nehru for ensuring Kashmir did not end up choosing its own destiny and have nothing but contempt for him. Pakistan was in that category until very recently, when Imran Khan suddenly seems to have developed a touching faith in India’s Founding Fathers.
Nor is it the case that Patel had nothing to do with it. The formulation of India’s Constitutional structure had all the hallmarks of Patel’s astute thinking, and he very much was involved in formulating Article 370 as a reviewer if not as the creator.
Nor is it the case that Ambedkar washed his hands of the whole affair. An article by a Central Minister in the Indian Express said as much recently, but if the Hon Minister had taken two minutes to check his facts, he would have discovered that Ambedkar actually was very much in favour of partitioning Kashmir.
The Events of 1947 up to the Cease Fire of January 1949
In 1947 the State of Jammu and Kashmir signed a Standstill Agreement under the Indian Independence Act delaying the Accession decision in favour of either India or Pakistan. The State was one of two major princely states trying to negotiate their entry into the two new Dominions – the other was Hyderabad. Sardar Patel was very keen on Hyderabad’s accession. In fact until after Independence Patel was relatively indifferent to Kashmir, and more keen on resolving the situation in Junagadh. Junagadh was a Hindu majority state with a Muslim ruler, who signed the Instrument of Accession to Pakistan. When the Hindus in the State protested, the Nawab fled the State when armed forces were positioned at his border.
It is worthwhile noting here, that things had been tense in the Valley for some time. By August 1947 the Poonch area – which was full of discharged soldiers – was in rebellion and it was clear that Pakistan was keenly interested in forcing the Maharaja’s hand. The Prime Minister of Kashmir State was Ram Chandra Kak, who was sure the State was going to accede to Pakistan and he was absolutely against the Congress. Once the rebellion started, the Maharaja dismissed Kak.
Maharaja Hari Singh has been described as a weak and vacillating man, who personally did not want Kashmir to go Pakistan but was not sure of acceding to India as well. He was being wooed by both sides. The reaction of the Maharaja’s forces to the outbreak in Poonch was sometimes quite brutal, matched by the other side. As tensions escalated, Patel and Nehru too were concerned about the situation in the State.
In September 1947 the Sardar pressed Justice Meher Chand Mahajan, a Justice of the Punjab High Court, to accept the Kashmir Maharaja’s invitation to become the new Prime Minister of the Kashmir State. The Maharaja’s great foe was Sheikh Abdullah, the leader of the Muslim Conference, who had a history of fighting for the rights of Muslims in the Hindu State. Abdullah was then in prison. The Indian Government took the precaution of laying telephone and telegraph lines between Jammu and Pathankot.
By end September the Indian Government received intelligence reports of Pakistani forces dressed as irregulars making preparations to infiltrate Kashmir. Patel made moves to induce a rapprochement between Sheikh Abdullah and the Maharaja. Before any concrete moves could take place, on October 22 1947, about 12,000 Pashtun tribesmen, armed and supplied by the Pakistan Army and lead by former officers of the Indian National Army attacked Kashmir. Elements of the regular Pakistan Army, like the 7th Infantry Division and the Prince Albert Victor’s Own Cavalry participated in the attacks but leaving the tribesmen to take the credit. In two days they routed the State Forces – of whose Muslim members many deserted to the other side – and stood at Baramulla, 40 miles from the capital. A panic-stricken Maharaja pleaded with the Government of India for help.
On October 25, VP Menon was despatched by the Defence Committee of the Indian Cabinet to Srinagar to assess the situation. He saw a state of chaos and confusion. He flew back on October 26th with Mahajan to Delhi. A meeting took place on October 26th at Nehru’s house with Abdullah, Mountbatten, Patel, Mahajan and Menon. Mountbatten demurred from involving the Army but Patel and Nehru were keen to provide military assistance. In deference to Mountbatten – and also because most of the senior serving officers in the Indian Army were British – they agreed to obtaining the Maharaja’s accession first. Patel also agreed with Nehru that Abdullah should rightfully lead any Kashmiri Government because only he could inspire loyalty among the State’s Muslims.
On October 26, V P Menon met the Maharaja in Jammu and presented their demands. The Maharaja agreed at once, and signed the Instrument. Immediately, the Indian Army and a team led by H M Patel (the Defence Secretary) set about getting an infantry battalion together. They assembled an armada of more than a 100 planes from the army and from private sources.
On October 27 morning, 329 men of the 1st Battalion, 1st Sikh Regiment, led by Lt Col Ranjit Rai, landed at Srinagar and secured the airport, and immediately deployed to the battlefield, – Col Rai was to be tragically killed in action hours after landing and was replaced by Lt Col Lionel “Bogey” Sen. Plane after plane landed bring arms and men to the campaign. Jinnah had been waiting in Lahore for the news to arrive that the “tribesmen” had captured Srinagar, so that he could make a triumphal entry there. As soon as he heard that the Indian Army had landed, he was disappointed. He asked the Pakistani Army to formally intervene. As more Indian reinforcements arrived, the enemy was first checked, and then pushed back until Srinagar was no longer in danger.
Even at this stage, it appears that Patel (more so) and Nehru (less so) were anxious to settle Kashmir with Pakistan, since for Patel, the main prize was still Hyderabad. Discussions on Hyderabad were ongoing with the Nizam, his interlocutors (Laik Ali and Sir Monckton) and Mountbatten (for whom Hyderabad mattered thanks to his royal connections). Well after the Indian Army was engaged in Kashmir, he was open to accession to Pakistan if the Pakistanis would help with Hyderabad. To quote Srinath Raghavan:
“Until late 1947, he was open to allowing Kashmir’s accession to Pakistan if the Pakistanis would tell the Nizam of Hyderabad to fall in line and join India. As he told Pakistan’s Prime Minister Liaquat Ali Khan, “Why do you compare Junagadh with Kashmir? Talk of Hyderabad and Kashmir and we could reach an agreement”. Patel even stated this publicly after the occupation of Junagadh on 11 November 1947: “Our reply was that one could agree on Kashmir if they could agree on Hyderabad”. At another meeting with Liaquat on 28 November, Patel offered to pull Indian troops out of Poonch if it would help pave the way for a diplomatic settlement. But Nehru opposed this course.
Let us also address here the question of the famous rift that people allege took place after which Patel stayed out of the Kashmir issue.
Nehru and Patel had a close personal equation. There was not a day when, if both of them were in Delhi, that Nehru did not walk over to Patel’s house on York Road or Patel to Nehru’s on Aurangzeb Road. It was not uncommon for them them to disagree. Abdullah was back as a de facto Premier, intent on making life difficult for Mahajan, the actual Premier. And he and the Maharaja did not get along. Nehru, however, saw Abdullah as critical to the Kashmir story. To be fair to Nehru, he believed Patel was close to the Maharaja in sympathies. Correctly assessing that Abdullah was more important to resolving Kashmir than an increasingly marginal Maharaja, he took over the handling of Kashmir and insisted to the Maharaja that Abdullah become the formal Premier of the State. Nehru also appointed Sir Gopalaswamy Ayyangar as the interlocutor between Srinagar and Delhi, bypassing Patel. Ayyangar had great credentials – he was a Civil Service officer, was awarded the Diwan Bahadur title and further, made a Knight Commander of the Indian Empire. He had moreover served as Diwan of Jammu and Kashmir. But this annoyed Patel, and lead to an exchange of angry notes between the two men on Christmas Eve 1947, with Patel actually sending in his resignation. Nehru apologised and returned it but insisted he would deal with Kashmir, and Patel agreed to support Nehru to the hilt. There is no record of any further discord over Kashmir between the two.
In January 1948 Nehru took the Kashmir issue to the new United Nations. It was winter, and the fighting had died down. In response to the Indian Army entering the war on the side of the Maharaja, Pakistan had also entered the war formally. It was difficult terrain, and both were well-trained armies fresh from the Second World War. Gilgit-Baltistan, under the command of its British officers, had already been taken by Pakistan in August 1947 itself. What was left was the Valley’s western portion in Pakistan’s hands and the rest of the kingdom in India’s control.
Finding a resolution to the military and political stalemate was the most important task before the new Government. Politically, Mountbatten was keen the two new Dominions not go to war especially since British officers were still largely in command of units in both forces, and both commanders of the Indian and Pakistani Armies were British. Mountbatten, Nehru and Patel openly discussed the idea of a partition of Kashmir, an idea that Ambedkar seems to have been in agreement with, There were plans to discuss this formally with the Pakistan Prime Minister Liaquat Ali, but the meeting never took place. A Ceasefire was finally agreed and went into force in January 1949.
Once the Ceasefire went into effect, the UN Security Council passed a Resolution requiring the following actions to be performed in sequence and to the satisfaction of the UN:
- Pakistan to withdraw all forces back to the line existing on August 15 1947 including in Gilgit-Baltistan.
- India was to withdraw all forces keeping in place only those men needed to police the state and maintain law and order
- A plebiscite was then to be held to allow the Kashmiris to decide to accede to Pakistan or to India.
Since the first condition was never fulfilled, the other two conditions have also not been executed.
The Creation of Article 370
We should note that J&K and India were entering into an agreement as two independent States. India was willing to consider special provisions for obtaining accession to India – in fact the provisions extended to Hyderabad (before the Nizam foolishly rejected them) would have surprised today’s nationalists.
The first major meeting on the terms of Kashmir’s Accession to India took place at the residence of Sardar Patel on May 15-16 1949. The meeting was attended by Sheikh Abdullah, Sardar Patel, Nehru, V P Menon, Gopalaswami Ayyangar and Baldev Singh at the very least. The discussion was memorialized in the form of a letter from Nehru to Abdullah, drafted by Ayyangar and approved by Patel. You can find this correspondence in the Collected Letters of both Nehru and Patel. The contents are key:
- Both Patel and Nehru concede that J&K will have its own Constituent Assembly to form its own Constitution under the Instrument of Accession
- That the accession of J&K to India into the Indian Union is final.
- That the Constituent Assembly of J&K will decide what subjects the State will exclusively legislate on and what the Union will have jurisdiction over.
- That the J&K State Forces are now under full operational and budgetary control of the Indian Army.
This is a key document and a key meeting, and this letter essentially lays the foundation for what was eventually to become Article 370. It first saw light of day as Article 306A. There is no way Sardar Patel did not know of the impending “special status” of the new State of Jammu and Kashmir.
In May 1949 representatives of the State of J&K became members of the Indian Constituent Assembly. In his remarks to the Constituent Assembly, Ayyangar said “Now the correct position is this. The accession is complete. No doubt, we have offered to have a plebiscite when the conditions are created for the holding of a proper, fair and impartial plebiscite. But that plebiscite is merely for the purpose of giving the people of the State to….ratify the accession that has already taken place….but if the plebiscite produces a verdict which is against the … accession…then we shall not stand in the way of Kashmir separating herself away from India”. Clear as day. The spirit in which the Constituent Assembly was approaching the accession was in the nature of an agreement between two states.
By this time, a draft Article (then called 306A) was in circulation. A proposal from the State of J&K was with the Indian Ministry of States, who put the draft into circulation. The draft was explained before the Constituent Assembly by Ayyangar:
- The State of J&K is deemed to have acceded to the Indian Union.
- Article 211A of the Constitution – which applies the Constitution to all the Indian States – shall not apply to J&K.
- The Instrument of Accession had other items, other than the three major items (Foreign Affairs, Defence and Communications) on which the Union had jurisdiction. This list could be extended by the President in consultation with the Government of the State of J&K.
- If any other provisions need to be extended, the concurrence of the State of J&K was needed.
- The concurrence was strictly provisional and had to be ratified by the Constituent Assembly of the State of J&K.
- But even this was provisional, until the Constituent Assembly of the State met and agreed on a final list of what powers were to be retained by the State and what was to be done at the Union. Once this is done the President’s powers would cease.
- The President can abrogate or amend this Article but only with the concurrence of the State Government via its Constituent Assembly.
The Assembly adopted Article 306A (now known as Article 370) without a vote on October 17 1949. Soon after the vote was taken, a visibly shaken Abdullah and other members of the Constituent Assembly of the J&K State had a heated discussion with Ayyangar in the lobby of the House. Ayyangar changed one crucial part of the draft agreed with the J&K representatives and got it passed by the Constituent Assembly. This change was made after consultations with Sardar Patel and others. Instead of the words “Council of Ministers appointed under the Maharaja’s Proclamation dated March 5 1948”, Ayyangar substituted the phrase “Council of Ministers for the time being in office under the Maharaja’s Proclamation dated March 5 1948”. An incensed Abdullah accused Ayyangar of bad faith in writing and threatened to resign from the Constituent Assembly.
Patel, Nehru, Ayyangar and Abdullah were wily men and they knew the implication of this innocuous modification. Under the original wording, only those who were in office on March 5 1948 could advise on applicability of the Indian Constitution to the President. The “trivial change” as Ayyangar termed it, made it possible for anyone in office at a particular time to advise the President. It did not enshrine a permanent role for Abdullah in the process. It caused a lot of bad blood, but the door was now open for the Indian Union to take control of the J&K Constitutional process through a small chink. It is what lead to the dismissal of Abdullah and his incarceration in 1953.
The renamed Article 370 was then incorporated into the Constitution, and the Constitution was adopted in November 1949. The new Constitution was then adopted by the new Maharaja Karan Singh on November 25 1949. When India became a Republic, the very first Order passed by President Rajendra Prasad was under Article 370 applying the Constitution to the new State of J&K. The First Schedule was the Union List and the Second Schedule other items of the new Constitution.
In 1951 the J&K Constituent Assembly was formed. While it began its deliberations, the J&K leadership and the Indian Government agreed on a set of principles to govern how the two entities would work. This is the 1952 Delhi Agreement. You can read it for historical value, but the key parts are that the Government of India allowed residuary powers of decision making to rest with the State, allowed the Head of the State to be appointed by the President only after it was recommended by the State, and to give effect to Maharaja-era rules on who can settle in the State.
But disquiet had begun to creep into the relationship. Abdullah was keen to include Pakistan in the future of the State, whereas Nehru’s wish was to make the State take steps closer to integration with India. Nehru was keen to use Article 370 to further extend the new provisions of the Constitution to J&K State. The President had his doubts on the legality of doing so and wrote to Nehru as such. Nevertheless he yielded to Nehru’s pressure and made an Order on November 15 1952 extending the Constitution. Matters came to a head, and in 1953 Sheikh Abdullah was arrested and his deputy Bakshi Ghulam Mohammed became the Prime Minister of J&K State. The J&K Constituent Assembly continued to debate its own constitution and never addressed the link between India and Kashmir other than acknowledge the accession and applicability of the Indian Constitution. In 1954 the President made another Order under 370.
The J&K Constituent Assembly adopted the State Constitution and adjourned in 1956. The Preamble to the State Constitution affirms the State’s accession to India. Article 370, intended to be a temporary provision, was left unchanged and intact.
And so the situation stood from then until August 5 2019.
The State suffered misgovernment right from the time Bakshi Ghulam Mohammed took over, until in 1963 he was censured by the Rajagopala Ayyangar Commission on charges of corruption. After the 1971 War, Mrs Gandhi released Sheikh Abdullah and he took charge of J&K after an accord between India and the National Congress. He was by now an old man, and he died in 1982. His son Farooq Abdullah took over his political mantle but he was clearly not cut from the same cloth as his father.
The Source of the Recent Troubles
Jammu and Kashmir continued to be a flashpoint between Pakistan and India but that was not because of Article 370. Pakistan continued to and continues to this day, to regard Kashmir as the unfinished agenda of Partition. It is natural for them to say so, because the Pakistani State has chosen to define itself in terms of India. In 1965, 1971 and 1999 Pakistan tried to change the facts on the ground through armed force, and failed.
The present troubles date from 1990. In 1987, the National Conference in cahoots with the Congress shamelessly rigged the elections to stop the Muslim United Front from winning. In some constituencies, votes were counted and recounted until the MUF candidate lost. The government of Farooq Abdullah therefore lacked legitimacy – he was more showman and not at all a good administrator. Riots broke out over electricity tariffs, the Jammu and Kashmir Liberation Front set off some bomb blasts, and by 1990 Central Rule had been imposed. As violent Islamic jihadis took control of the street, the Kashmiri Hindu Pandits were cleansed out of the place by mobs with the State Government powerless to do anything. A shameful episode in our history.
Since then the Valley has been through various governments alternating with Central Rule, and close to half a million armed men battle jihadists and so-called freedom fighters. Pakistan, of course, was delighted when this insurgency began. With the help of its own home-grown jihadists and Taliban fighters, it has given India a massive headache. Its Kargil adventure was a good example of the thinking that asymmetric warfare will make the Indian Army bleed. A series of IEDs, bombings, shootings and terrorist action have forced strong responses from the Army. Some of the responses have been over the top and clearly excessive. All of the above have kept a whole generation of Kashmiris angry and resentful.
Article 370 is not the issue, and neither is Nehru
Was Article 370 and the special status of Jammu & Kashmir the real issue? The nationalist loathing for Article 370 is not new. The newly minted Minister for Industry in the Nehru Government, Dr Syama Prasad Mookerjee, chose to resign and leave the Congress over this. He founded the Bharatiya Jan Sangh in 1952 over the issue. The BJS is the forefather of the BJP, and erasing Article 370 has been part of their manifesto for a long time.
In 1947, an independent State of Jammu & Kashmir negotiated its accession to the Indian Union. The basis for such accession is enshrined in Article 370 and the State of J&K Constitution. The State was very much a part of India, and since there is no way Pakistan can ask for a plebiscite under the UN Resolution, there is no way the State can vote on its accession to India.
As a nation we need to respect and recognise that diversity in the way regions establish their relationship with the Union at large is perfectly acceptable. Indeed, the Indian Union was a legal entity that evolved from the transfer of British power to India and the accession of independent princely states to the Union under a formal legal process. It is what gives the Constitution its legal aura and its sanctity. In the last 70 years the Union has not had a problem with negotiating with States who wanted to renegotiate their relationships. We have had accords with Assam, Nagaland, Manipur and Mizoram. Given the finality of J&K’s accession, there was no need to tamper with this.
The mess in J&K is as much a creation of the BJP as it is of the Congress, the PDP and the NC. And the present mess dates from 1990 to be very precise. It is a complete failure of law and order, and of administration. In the meantime the defiance in the State has morphed from being an independence struggle to a case for an Islamic Jihadic State a la ISIS. All these are huge problems but these have nothing to do with Article 370. And you can certainly not blame Nehru for it.
Regarding the plebiscite, Nehru gets a lot of stick for double-dealing. Writers like H V Hodson and A G Noorani allege that Nehru was not entirely straight with the Kashmiris on this. Hodson further taped an interview with VP Menon in 1964 where Menon said that “As for plebiscite, we were absolutely, absolutely dishonest.” Nehru overrode Babu Rajendra Prasad’s objections and asked him to issue not one but several Presidential Orders under Article 370. If anything the nationalists today who abuse Nehru should applaud him if the allegation of double-dealing is indeed accurate. I am strongly inclined to think this is the case – but Nehru and Patel can be excused on the basis that they were battling with taking over from the British, setting up a new administration, the aftermath of Partition – and may be they just wanted to get the job done.
What is needed now?
The longer the clampdown in Kashmir exists, the more the impression being created is that India has somehow captured the State. This is clearly absurd. The accession of J&K is a matter of fact and Kashmiris are fellow citizens.
The clampdown needs to be lifted and the formation of a civil society needs to be encouraged. There is bound to be an aftermath. I just hope more thought has gone into how to deal with the fallout.
The Prime Minister has promised to make the new Union Territory of Jammu and Kashmir a paradise of jobs, peace, tourism and stability. There are serious doubts about how this will come about in the face of a sullen population. The glee with which the August 5 2019 action was greeted indicates that the public wanted something to be done about this, but equally, it is seen as a victory of the Hindu position. The latter is unfortunate because it threatens the very fabric of the Indian state. It is not clear if the rumours of military excesses are true – I suspect they are not. Whatever be the case, the government must move to include the 8 million people of the new Union Territory as citizens of India in the real sense.
I also hope the Prime Minister allays fears that the Valley will be resettled by Hindus. This would be right from the playbook of Sheldon Adelson and the Israeli extreme right wing in the Palestinian West Bank. It would be very costly and highly damaging to the nature of the Indian state – and to the very gentle but strong nature of Hinduism.
China gets away with gross abuse of the Muslims in Xinjiang. This can hardly be a model for India to follow. We will need another generation to match China in economic strength, and until then, good relations with our friends in the Arab world are absolutely key. The Prime Minister takes pains to be in personal touch with the leaders of the Arab world. Our people who run their institutions are well regarded and respected, and our growing economic clout is recognised and respected. They also value the fact that we do the best we can for our large Muslim minority. We should not devalue that trust.
- A G Noorani: A Constitutional History of Jammu and Kashmir, Oxford University Press, 2011.
- Rajmohan Gandhi: Patel: A Life, Navajivan Press, 1991.
- Lok Sabha: Debates of the Constituent Assembly of India 1949, Web Resource.
- V P Menon: The Transfer of Power in India, Orient Blackswan, 1957
- H V Hodson: The Great Divide, Hutchinson of London, 1969
- Judith M Brown: Nehru, Yale University Press, 2003.
- Srinath Raghavan: BJP wants to revoke Article 370, ironically Sardar Patel was its architect. The Print, June 26 2018