A friend asked me why Nehru “saddled India with Article 370”. My responses.
It is easy and indeed a la mode today for people to assign base motives to Nehru – that he was Muslim, that he hated Hinduism, that he was besotted with Edwina and was not thinking straight. The truth is – he was a thoroughly modern man deeply in love with his country, and in love with the idea of India as an ancient society taking its place among modern nations. He was not a practising Hindu but then that was the fashion at that time, in an age of rationalism, when the Soviet Union and then China renounced religion. His idea of India was one where religion would play no role in public life. But his idea of India blew a hole when Jinnah capitalized on British fatigue to carve out a Muslim state on the basis that Hindu and Muslim cannot live together.
In October 1947 when Maharaja Hari Singh signed the Instrument of Accession, he did it in a hurry so that India had legal cover to send troops to Kashmir (the invasion by Pakistani irregulars had started in August 1947, and since Kashmir was technically an independent State, India could not send troops legally). Kashmir was a unique entity in India – it was a Muslim State ruled by a Hindu prince. Under the normal rules of Partition, it could have gone to Pakistan just as how Hyderabad came to India (though it took a military invasion in 1948 to get the Nizam to step down).
Integrating Kashmir into India legally, and with the full support of the party that ran Kashmir (National Conference under Sheikh Abdulla) was therefore a matter of pride for Nehru. The National Conference was already under stress thanks to Hindu communalism in Kashmir – which if you are fair, was no different to the behaviour of the Razakars in Hyderabad though I am not equating the two. Article 360 was then put in as a mechanism to ensure that the Muslim majority province would always be that – a Muslim majority province.
One must note that in 1948, the behaviour of Pakistani soldiers in Kashmir had sickened the population, and when the first elements of 1 Sikh were landed into Srinagar by the RIAF on 27 October 1947, they were greeted as heroes. Kashmir was largely peaceful. In 1965 Ayub Khan launched Operation Gibraltar to incite Kashmiris to rise up and join Pakistan. It did not happen, and Kashmiri soldiers in the Indian Army fought bravely. The same happened in 1971.
The situation in Kashmir deteriorated only in 1984 when Congress blatantly rigged elections. It has been downhill ever since. But Article 370, and Nehru, were not to blame. The deal that Nehru struck in 1948 held. Kashmir stayed resolutely and loyally Indian
But why Article 370? Briefly, the Maharaja of Kashmir wanted an independent Swiss-style state in 1947, so he signed standstill agreements with both the Dominions. However circumstances forced his hand. Remember that this was October 26 1947, Pakistani irregulars were at the doors of Srinagar and there was little hope for the Maharaja. He signed the Instrument of Accession and the next day the first elements of 1 Sikh were at Srinagar. There was no Indian Constitution at that time. There was the chaos of Partition. Hence, Article 370 did not exist on October 26 1947.
The Instrument of Accession signed by Maharaja Hari Singh contains a clause stating that the Maharaja is not obligated to accept the Indian Constitution.
The 526 states that comprised a little more than one half of British India were technically independent because the Indian Independence Act 1947 (passed in Westminster) essentially removed any obligation of these States to the British Government.
During the integration of the States, the states were offered to opportunity to integrate with the new Dominion of India, and the Instrument essentially said that the three functions that the Viceroy’s Government traditionally discharged for the whole of British India would now be discharged by the Dominion Government. These were defence, foreign affairs and communications. Currency was not in the list because a lot of states had their own money.
The States were also invited to send representatives to the Constituent Assembly to assist in formulation of the Constitution. The States were encouraged to set up their own mirror assemblies but most states did not – with the exception of states like Jammu & Kashmir. Kashmir’s representatives asked that the Constitution reflect the Instrument of Accession signed by the Maharaja. This included the critical clause referred to above. The State was entitled to draft its own Constitution and include only those sections of the Indian Constitution it wanted. Sir Gopalaswamy Ayyangar and Sardar Patel worked on this Article 370 which was intended to be temporary, and to be removed only by the State’s Constituent Assembly.
In 1956 the State’s Assembly dissolved itself without removing this Article. In the meantime, Nehru and Sheik Abdullah had fallen out after the Sheikh made a demand for independence (Nehru had him thrown into jail where he remained for 20 years). From 1952 a series of Presidential Orders extended the Indian Constitution to Kashmir. This process has lasted until recently, leading to an erosion of the original intent of Article 370 (based as it was on the Instrument of Accession signed by the Maharaja). Abrogation of even this rump article is not possible because it requires the State to set up a Constituent Assembly. To do so in these fevered times when most Kashmiris do not want to be part of India would be a political mistake.
J&K is for all purposes an Indian state, except that rights of ownership and residence are limited to the definition of the State government.