Broken promises

Print edition : August 26, 2011

A.G. Noorani opens a window of understanding on Article 370 and the constitutional history of Jammu and Kashmir.

ARTICLE 370 of the Constitution is undoubtedly the most-discussed article in the constitutional history of India as it is about Jammu and Kashmir, which is at the centre of trouble between India and Pakistan. It gives special status to Jammu and Kashmir State within the ambit of India's constitutional framework. Over a period of time, the subject of discussion has been the erosion of its potential to ensure the special distinction of the State.

All Prime Ministers of India to date have vowed to protect it to give the people of Jammu and Kashmir a feeling that theirs is a State that is different from other States in India. However, all of them have failed to do so. When Kashmir plunged into an armed rebellion in late 1989 following large-scale rigging in the Assembly elections of 1987, there was not even the faintest idea that it would be back in the Indian fold. In early 1990, a high-level parliamentary delegation led by the then Leader of the Opposition, Rajiv Gandhi, visited Srinagar, only to get confined to a fortress-like Centaur Hotel. On their return to Delhi, the members of the delegation were candid enough to tell the V.P. Singh government that Kashmir is lost.

However, things started turning around by the end of 1995, with New Delhi crushing the popular rebellion with an iron hand. Militants, mostly Kashmiris, were killed. Civilians who took to the streets demanding azadi (freedom) in unequivocal terms met the same fate. With a new composite policy, the government, through the then Governor G.C. Saxena, adopted a multipronged strategy to isolate militants from the Kashmiri social fabric. This was done mainly by bringing renegades under the banner of Ikhwanul Muslimoon, a breakaway group of the Ikhwanul Muslimeen militant outfit, the name derived from a popular pro-Islamic movement in Egypt. It surely did break the backbone of the pro-Pakistan militancy, but at a heavy cost.

Electoral process

This paved the way for the political reinforcement in Kashmir, making New Delhi confident enough to announce parliamentary elections in May 1996, the first in the State since 1989. There was hardly a genuine political party to join the electoral process. The influence of the militants had not waned and the people were yet to reconcile with Indian rule. Even National Conference leader Farooq Abdullah, the undisputed Indian character in Kashmir, refused to take the plunge. The Congress was the only prominent party in the fray. Coercion became the hallmark of the process, but New Delhi sailed through.

By then the National Conference had opened negotiations with New Delhi around constitutional guarantees that emanated from Article 370. Prime Minister P.V. Narasimha Rao's announcement in Burkina Faso in 1995 that the sky is the limit with respect to the quantum of autonomy that Jammu and Kashmir could get within the framework of the Constitution had encouraged it. The pivot in this whole process was Article 370.

Sheikh Mohammad Abdullah.The original draft of Article 370 was amended without taking him into confidence. His ouster in 1953 would not have been possible without this amendment.-THE HINDU ARCHIVES

The National Conference submitted a detailed memorandum to Narasimha Rao in November 1995. Not only that, Farooq Abdullah represented India at the United Nations Human Rights Council (UNHRC) meet in Geneva in 1994 to save New Delhi from economic sanctions being imposed on it in view of the alleged gross human rights violations in Kashmir. He says in private that he was promised the restoration of the pre-1953 constitutional status to Jammu and Kashmir.

In 1996, Farooq Abdullah was persuaded by Prime Minister H.D. Deve Gowda to take part in the Assembly elections on the assurance that the government would support his demand if he chose to take the legislative route. It took the National Conference four years to bring a resolution in the Assembly to demand greater autonomy and get it passed on June 26, 2000. But the National Democratic Alliance (NDA)-led government headed by Atal Bihari Vajpayee summarily rejected it, thus adding another leaf in the history of betrayal.

This rejection was not new in the history of the battered relations between Srinagar and New Delhi. Such breaches have pushed the State into a turmoil, which refuses to die down even after pumping in billions of rupees for economic development. The alienation of Kashmiris stems from this process of deceit by successive governments in New Delhi.

Comprehensive picture

Against this backdrop, the recently launched book by the noted constitutional expert and author A.G. Noorani gives a comprehensive picture of how this history of broken promises has unfolded. The book, Article 370: A Constitutional History of Jammu and Kashmir (Oxford University Press), is well-researched and documented, and contains agreements, documents and letters that show how power has prevailed over a cohesive fight against these breaches. He not only exposes many Central leaders but also puts Kashmiri leaders in the dock for not rising up against the injustice meted out to their people.

This is the first comprehensive work on Article 370. It dwells explicitly on the contours of greater autonomy the Jammu and Kashmir State would enjoy. Supported with rare material, memoranda and White Papers, it gives an entirely different view of how the original draft of Article 370 was amended without taking Sheikh Mohammad Abdullah into confidence. The arrest of Sheikh Abdullah by New Delhi in August 1953, a watershed in the history of the State, would not have been possible without this amendment.

According to Noorani, Sheikh Abdullah and Home Minister Sardar Vallabhbhai Patel had serious differences on the original draft, and it was unilaterally altered by N. Gopalaswamy Ayyangar without the consent of the Sheikh and his colleagues. He states that Sheikh Abdullah, along with Mirza Afzal Beg, was in the lobby at that time and when they learnt of the changes, they rushed to the House. But the changes had been passed. If the originally agreed draft had been approved, the ouster of the Sheikh later in 1953 would have been impossible. It was an unfortunate breach that created distrust.

Noorani has unravelled many potential issues in the book and has cornered the main opposition Bharatiya Janata Party (BJP) on its stance in favour of the abrogation of Article 370. He shows how BJP ideologue Shyamaprasad Mookerjee supported the article at the time of its formulation. The book says this constitutional provision also had the complete approval of Sardar Patel whom the BJP invokes as a strong man who was opposed to Jawaharlal Nehru's move to grant special status to Jammu and Kashmir.

Jawaharlal Nehru and Vallabhbhai Patel at the latter's residence in Delhi in April 1949. The book says Article 370 had the complete approval of Patel, then Home Minister, whom the BJP invokes as a strong man who was opposed to Nehru's move to grant a special status to Jammu and Kashmir.-THE HINDU ARCHIVES

What is interesting is that until 1960, it was a provisional clause as India had seemingly kept the option of a plebiscite open. Accordingly, the White Paper by Sardar Patel on Jammu and Kashmir, published by the Government of India in 1948, recorded: In accepting the accession, the Government of India made it clear that they would regard it as purely provisional until such time as the will of the people of the State could be ascertained.

The most significant revelation in Noorani's book is how Jawaharlal Nehru ditched his friend Sheikh Abdullah, the tallest leader of Kashmir. Sheikh had too much faith in Nehru, who had off and on assured him that the special status to Jammu and Kashmir would not be tampered with. But going by his speeches and the communications, the rift over this breach was obvious.

Nehru and Article 370

Noorani's research clearly shows Nehru's intention on Jammu and Kashmir. He reveals that Nehru was for the abrogation of Article 370. In spite of being an architect of Article 370, Nehru told the Lok Sabha on November 27, 1963, that it has been eroded, if I may use the word, and many things have been done in the last few years which have made the relationship of Kashmir with the Union of India very close. There is no doubt that Kashmir is fully integrated. We feel this process of gradual erosion of Article 370 is going on. Some fresh steps are being taken and in the next month or two they will be completed. We should allow it to go on.

Union Home Minister Gulzari Lal Nanda said in the Lok Sabha on December 4, 1964, that the only way to take the Indian Constitution to Jammu and Kashmir is through the application of Article 370. It is a tunnel. It is through this tunnel that a good deal of traffic has already passed and more will. According to Noorani, Nanda concluded: What happens is that only the shell is there. Article 370, whether you keep it or not, has been completely emptied of its contents. Nothing has been left in it.

The book makes a strong case for restoring full autonomy to Jammu and Kashmir. With 92 historical documents reproduced in it, the book suggests revisiting Article 370 with a draft proposal. Noorani believes that with political will, sincerity of purpose and a spirit of compromise, it is not difficult to retrieve from the wreckage of Article 370 a constitutional settlement that will satisfy the aspirations of the people of Jammu and Kashmir.

He says that Jammu and Kashmir was the only State in India that negotiated its relations with New Delhi following Partition, and it took five months to complete this process. He believes that Article 370 was a solemn compact, with neither side mandated to amend or abrogate it unilaterally, except in accordance with the terms of that provision. The author has revisited Article 370 and presented it as a solution to address the political aspirations of the people of Jammu and Kashmir, though the separatists are demanding something diametrically opposite to it. But given the current situation, he makes it clear that the restoration of greater autonomy can be an alternative to what is not possible.

Noorani's work comes at a time when the National Conference is pursuing its autonomy agenda as an honourable solution to the Kashmir problem and when the opposition People's Democratic Party (PDP) sees self-rule as a solution. Though their approaches are different, there seems to be no disagreement between them on the protection of Article 370. The PDP considers Article 370 as a permanent feature of the Constitution and believes that its abrogation will have serious consequences even for the accession of the State to the Union of India.

The National Conference also is a strong votary of the protection of the article, and its autonomy document mainly revolves around that provision of the Constitution. It believes that the crisis around this article can be resolved only by returning to the pre-1953 constitutional position the State enjoyed, with its own Prime Minister and Sadr-e-Riyasat besides the limited powers the Centre had. The vision document of October 2008, prepared by the National Conference, gives a comprehensive road map to the resolution of the issue.

Against this backdrop, Noorani's book becomes the bedrock of any negotiation between New Delhi and Srinagar to find a solution to the problem and remove the mistrust emanating from the history of betrayals since 1947. The Centre's team of interlocutors can also benefit a lot from this to formulate a plan for New Delhi to address the political problem and ward off the threat of disruption in Kashmir. Though the involvement of Pakistan in any settlement is imperative, the internal dimension can be addressed with a strong political will. Noorani has made a tremendous contribution by opening a window of understanding on this crucial subject.

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