T his was not the first time that Ajit Doval, the National Security Adviser, rushed to pronounce judgment rashly. His remarks on September 4 at the right-wing think tank Vivekananda International Foundation, of which he is one of the founders, have evoked varying reactions from disdain to ridicule. He let forth a fusillade of judgments—each manifestly, demonstrably wrong—and he did this with utter disdain for relevance.
The event was organised in Mumbai for the launch of a book on Vallabhbhai Patel. Mark the orator’s gems: 1. Patel could see the plan “of the British to sow the seeds of disintegration in the country”. In fact, the British emphatically ruled out any relations with the princes after Independence. It was a Brit who, assisted by V.P. Menon, was largely responsible for their accession to India. Patel imagined that after Independence the people would rise in revolt. Mountbatten warned him that the rulers had armies and volunteered his help. Patel said: “I am prepared to accept your offer provided you give me a full basket of apples.” Mountbatten offered a basket of 500. (H.V. Hodson; The Great Divide , pages 367-68; “Patel the non-Bismarck”, Frontline , May 1, 2015.) Patel would not have been so friendly with him if he thought that the British were out to sow seeds of disintegration in India; nor did he lay the foundations of a nation state. He was a divisive figure. That credit goes to Jawaharlal Nehru, whom the likes of Doval dislike because he was secular.
2. “In a nation state, there was one state one law.” Britain has two different sets of criminal law in Scotland and England. Quebec has a distinct identity in Canada.
3. “Sovereignty can never be divided.” The United States of America is a nation state. Three respected American scholars recall that the Founding Fathers opted for “divided sovereignty” in the American federation. “Regarding the people as sovereign, the Convention (at Philadelphia) denied sovereignty to both State and Federal government. This denial of sovereignty was implicit in the very act of framing a Government of defined and hence limited powers”—as all federations do (Alfred H. Kelley, Winfred A. Harrison, and Herman Belz; The American Constitution: Its Origins and Development , page 105).
4. “560 States which had different laws were merged and had one Constitution”. The Instrument of Accession of 1947 signed by each ruler explicitly stated in paragraph 7: “Nothing in this instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.”
Each of the covenants signed by the rulers who formed Unions of States—Kathiawar Saurashtra, Madhya Bharat, Rajasthan, Patiala and East Punjab States Union and Travancore-Cochin—provided for the formation of a Constituent Assembly “within the framework of this Covenant and the Constitution of India, and providing for a Government responsible to the Legislature”, a standard formulation. All this was in 1949. A Constituent Assembly is expensive business. The rulers signed proclamations on November 26, 1949, to accept “the Constitution of India shortly to be adopted by the Constituent Assembly of India”. The White Paper on “Indian States” published in February 1950 mentioned that “steps will be taken for the purpose of convening a Constituent Assembly” in Kashmir (White Paper on Indian States-1950, page 113).
Part B States
The Constitution of India originally had provisions for the princely states different from those of the former Provinces of British India in Part B. Granville Austin recorded in his book The Indian Constitution : “That the units of a federation should have different relationships to the federal government was not thought of as an innovation by the (Constituent) Assembly members; it was merely a recognition of the existing situation” (page 251). That situation and that diversity were created by history. The Constitution (Seventh Amendment) Act, 1956, abolished the category of Part B States as part of a scheme for the Reorganisation of States.
Indira Gandhi was much more nationalist than Doval or his boss, Prime Minister Narendra Modi. She went so far as to make Parliament enact the Constitution 35th Amendment Act, on February 22, 1974, conferring on Sikkim the status of a State “associated with the Union” as provided by Article 2 of the Constitution. In the Tenth Schedule, the terms and conditions of association were laid down. However, on May 16, 1975, the Constitution 36th Amendment was enacted to make Sikkim a State within the Union like all the others. A fraudulent plebiscite was held to provide a fig leaf of legitimacy to the sordid exercise of a forcible takeover. Nonetheless, some very special provisions were made in Article 371F for its Assembly, and for “different sections of the population”.
The Constitution of India is a huge umbrella. It sanctions special provisions with respect to Nagaland (Article 371-A) and Mizoram (Article 371-G). In both cases, Parliament has no power to legislate on “ownership and transfer of land”. The much decried Articles 370 and 35A in respect of Kashmir are not unique. Special provisions are also made in respect to Assam and Karnataka on other matters.
Examples in other shores
Doval’s edict that “in a nation state, there was one law, one Constitution” stems from his outlook, crass ignorance and chauvinism. He is unaware of the fact that each State of the United States of America has its own separate Constitution, each different from the other. Fifty States constitute that federation. History ensured that. The 13 colonies which rebelled against the British Crown in 1775 were governed by a separate Royal Charter. Virginia was the first to receive such a Charter from King James on April 10, 1606. After a successful rebellion they adopted the present Constitution on September 17, 1787. The other States joined the Union because they were attracted by the freedom it reorganised. The Tenth Amendment put the matter beyond doubt. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved by the people.”
Britain provides a classic case of an ancient and unitary Constitution being adapted to modern times to acknowledge and respect diversities among the people. Scotland was joined to England to constitute Great Britain by the Scotland Act 1706, an English statute, as well as by a Scottish statute, Union with England Act, 1707, when the Union was as created, be it noted, by both countries. Scotland retained a lot, including its criminal law. Advocates of a uniform civil code to note: nationalist sentiment does not die. No one accuses the Scots who desire secession from the United Kingdom of treason. It is unnecessary to trace the steps leading to “devolution”. Scotland has today a Scottish Parliament and a First Minister. Wales has the Welsh Assembly. Northern Ireland acquired a large degree of autonomy under the Belfast Agreement of 1998 with Ireland and Catholic separatist leaders of Northern Ireland.
These are modern developments. The trend is towards shedding of power. London has been honest on Scotland. New Delhi has been consistently dishonest and repressive on Kashmir from the days of Jawaharlal Nehru to Narendra Modi. India pledged to hold a plebiscite. It flouted this pledge. It violated every accord—the Instrument of Accession, the Delhi Agreement and even the Accord of 1975 forged under duress.
Special case of Kashmir
The Maharaja of Jammu & Kashmir enacted the J&K Constitution Act, 1939, on September 7, 1939. At the same time the party leading the freedom movement, the National Conference led by Sheikh Abdullah, also demanded a Constituent Assembly to frame a Constitution for the State. In fact, a draft Constitution of 50 Articles for “Naya Kashmir” was drawn up on February 20, 1944.
The ruler’s Proclamation of March 5, 1948, appointing Sheikh Abdullah as Head of the Emergency Administration directed his Council of Ministers to convene a National Assembly which would also frame a Constitution for the State. The Constituent Assembly of India was at work in New Delhi then. On May 18, 1949, Nehru wrote to the Sheikh to express his approval of the proposal. The State’s Constitution “is a matter of the State”. In 1949, Kashmiri leaders negotiated with India’s leaders on Article 370. Patel was privy to it. So was S.P. Mookerjee. Paragraphs 2 and 3 of Article 370, as finally adopted, mention Kashmir’s Constituent Assembly, explicitly.
Its sponsor, N. Gopalaswamy Ayyangar’s exposition of Article 370 in India’s Constituent Assembly on October 17, 1949, made it clear that abrogation of Article 370 could be done only on Kashmir’s Constituent Assembly’s recommendation to the President. It dissolved itself formally on November 17, 1956. Article 370 cannot be abrogated thereafter. Increase in the Centre’s power thereafter is unconstitutional.
There was disagreement between the Sheikh and Nehru on whether the State’s Constituent Assembly could decide on its accession to India. The National Conference Resolution envisaged decision on “the future shape and affiliations of the State”. The Ruler’s Proclamation of May 1, 1951, convening the Constituent Assembly restricted its scope of “framing a Constitution”. Abdullah stuck to his stand, nonetheless.
In February 1950, Patel’s Ministry of States published a White Paper on Indian States, which authoritatively stated: “Steps will be taken for convening a Constituent Assembly which will go into these matters in detail and when it comes to a decision on them, it will make a recommendation to the President....” (page 113).
Thus, a separate Constitution for the State of Jammu and Kashmir was envisaged even by Patel right from the very beginning as part of its future set-up. Two steps taken by Nehru wrecked the agreed arrangement. One was the arrest and imprisonment for 11 years of Sheikh Abdullah on August 9, 1953, immediately after his dismissal from the office of Premier of the State. It was a midnight coup. Also arrested were a host of people including Mirza Muhammad Afzal Beg, whom the Sheikh treated disgracefully 30 years later. A large number of members of the Assembly were arrested, robbing it of its legitimacy to frame the Constitution that it did in 1956.
In K. Anandan Nambiar (AIR 1952 Madras 117), the Madras High Court rejected the detained Member of Constituent Assembly K. Anandan Nambiar’s plea to attend the House. Justice Somasundaram’s observations are pertinent to the arrests in Kashmir in 1953 and in the rest of India during the Emergency in 1975: “We, however, readily concede the contention of Mr. S. Mohan Kumaramangalam that if a party in power detains a political opponent or continues his detention with the mala fide object of stifling opposition and prejudicing the party to which he belongs in a forthcoming election, there would be an undermining of the basis of the Constitution, putting in jeopardy the second pillar to which we have adverted (‘honesty, character and integrity in the component organs of the Constitution’)” (Para 7 of Judgment Appadurai, page 1,219). Gone also was its authority to ratify the Centre’s amassment of power until its dissolution in 1956.
Throughout the negotiations in 1951-1952, Abdullah insisted and Nehru agreed that Jammu and Kashmir would have an elective head of State. On October 3, 1963, former Premier of the State Bakshi Ghulam Mohammed revealed that a directive had been issued (by the Government of India) “to bring Kashmir closer to the rest of India”—by abolishing its special status. For this, the entire record of the past had to be wiped out.
The Interim Report of Jammu and Kashmir’s Constituent Assembly (June 10, 1952) recommended abolition of the monarchy. The report was signed not only by Abdullah, Afzal Beg and others but also by the conspirators of the 1953 coup, Bakshi, D.P. Dhar, Mir Qasim, G.L. Dogra, S.L. Saraf and others. G.M. Sadiq could not, as he was President of the Assembly. The Assembly accepted the report’s recommendation on June 12, 1952. Nehru agreed, provided that the election of the Head of State by Kashmir’s Assembly was subject to approval by the President, that is, by himself as the Prime Minister. Worse, though elected, he would hold office “during the pleasure of the President”; have the same security of tenure as a daily wage earner. It was adopted in the Delhi Agreement in July 1952.
This was carried out in the Constitution of Jammu and Kashmir as adopted in November 1956. But on April 10, 1965, the Sadiq government got enacted the Constitution of Jammu & Kashmir 6th Amendment, 1965, replacing the elected Sadar-i-Riyasat with a Governor nominated by the Centre.
The consequences for the State’s autonomy have been calamitous. During President’s rule or Governor’s rule it is the Governor who has acted as “the Government of the State”, himself nominated by the Centre to give his masters the desired concurrence to amass power; all in breach of Article 370.
It is not Article 35A but the amendment of 1965 which violates “the basic structure” of J&K’s Constitution. For it sets at naught its republican character as well as the federal structure, two of its essential features.
Doval’s lament on September 4 that the continuation of Kashmir’s Constitution “is an aberration” reveals a lot. That Constitution and Article 370 have hollowed out in breach of all the accords. An “aberration” is an unwelcome departure from the normal. There was nothing abnormal in conceding Kashmir’s right to have its own Constitution. Its deprivation accounts for the people’s revolt today.
Ninety-four of the 97 entries in the Union list were extended to Kashmir, and so were 260 of the 395 Articles of India’s Constitution. Article 370 is a wreck which Mufti’s accord with the Centre sanctified. All this and more had been fully documented in the State Autonomy Report, which the A.B. Vajpayee Cabinet summarily rejected on July 4, 2000. Read Jammu & Kashmir Assembly’s excellent compilation of debates on that report on April 8 and 10 and June 20-26, 1990, and the contrast between the opinions in New Delhi and Srinagar emerges starkly. Even pro-Union leaders demanded autonomy.
Articles 370 and 35A are shaped by a history which none in New Delhi dares to recall today. Read the minutes of the Defence Committee of the Nehru Cabinet on October 26, 1947. V.P. Menon reported after his visit to Kashmir that Maharaja Hari Singh “had gone to pieces completely—if not gone off his head”. His Prime Minister Mehr Chand Mahajan’s “pet obsession had been how the minority of the population could be saved”. The hawk of hawks, N. Gopalaswamy Ayyangar, a former Dewan of Kashmir, opined that “immediate accession (to India) might create further opposition”. Why? Because the people were for accession to Pakistan, not India, and sympathised with the marauding raiders. He knew the mood of the people. Remember the Tamils’ sympathy for the murderous Liberation Tigers of Tamil Eelam (LTTE)?
Mountbatten felt that an offer of plebiscite might provide a way out. It should cover the third option—“or to remain independent”. Nehru “would not mind Kashmir remaining an independent country under India’s sphere of influence”. The Cabinet decided to direct the Ministry of States, headed by Patel, “to prepare” an Instrument of Accession and a letter by the Governor General to the ruler on “the temporary acceptance of this instrument”—the famous letter is therefore a part of the Instrument of Accession in law. It had “a promise that the will of the people” would be ascertained. After the ceasefire on January 1, 1949, this condition was flouted. But thanks to Sheikh Abdullah’s insistence, Article 370 and 35A were added to the draft Constitution in the negotiations from May to October 1949.
There is, however, another provision which Shriman Doval might look up and try to understand. It is a proviso to Article 253 of India’s Constitution which lays down that “no decision affecting the disposition of the State of Jammu and Kashmir shall be made by the Government of India without the consent of the Government of the State”. This implies three things. Even under India’s Constitution, the future of Kashmir is yet to be decided. With no other country could that decision be made except with the Government of Pakistan for the main part of Artice 253 deals with international agreements. Lastly, even that will not suffice; Kashmiris’ “consent” is indispensable.
Autonomy: European precedents
There are in Europe two precedents of governments guaranteeing the autonomy of a region without altering the borders or altering sovereignty. One is the 1921 Agreement between Sweden and Finland on a guaranteed autonomy for the Swedish-majority Aaland Islands, which were under Finland’s sovereignty. The other is South Tyrol, a German-speaking region under Italy’s sovereignty which, by agreement with Austria in 1969, is guaranteed substantial autonomy. The Manmohan Singh-Musharraf 4-Point understanding of 2006 follows this precedent. Small minds in India, Pakistan and Kashmir wrecked it. In this pattern falls also the U.K.-Ireland Agreement of Northern Ireland. India’s sovereignty over Kashmir will not be affected. Kashmir will acquire an internationally guaranteed substantial autonomy.
As in the case of Scotland, no one accused Quebec of treason when it sought to secede from Canada. Nor did its Supreme Court judges assume airs of supreme patriotism and write judgments in bad English in florid prose to acquire popular applause and denounce the move. Canada was originally founded as a French colony in 1608. It came under British rule in 1763. The Quebec Act of 1774 recognised French law and language and Catholic faith. Its demand for secession, like that of Scotland and Kashmir, is rooted in history.
The Supreme Court of Canada’s judgment on August 28, 1998, is a masterpiece of judicial statesmanship; an art and science unknown to India. It drew a distinction between legality and legitimacy. Its core was a counsel for conciliation based on the popular will. Unlike Kashmir, none of these regions had been promised self-determination. Kashmir was, in specific terms and repeatedly.
Kashmiris have every reason to feel cheated and brutalised. To cite just two pledges. On October 31, 1947, Nehru assured the Prime Minister of Pakistan Liaquat Ali Khan that “our assurance” to abide by the people’s will “is not merely a pledge to your government but also to the people of Kashmir and to the world” ( White Paper on Jammu & Kashmir , 1948; page 51). On January 2, 1952, he told a rally in Calcutta: “If tomorrow Sheikh Abdullah wanted Kashmir to join Pakistan, neither I nor all the forces of India would be able to stop it because if the leader decides, it will happen ... India’s pledge is no small matter” ( Selected Works of Jawaharlal Nehru , Volume 17; pages 76-78).
Did he really mean to fulfil all those scores of pledges? The archives are a cruel, merciless institution. They throw up without notice unflattering evidence about leaders at the top—Roosevelt, Churchill, Gandhi, Jinnah and Nehru. Pakistanis ignore disclosures on Jinnah; Indians ignore them about Gandhi and Nehru, and Patel.
On February 6, 1948, the leader of India’s delegation, M. Gopalaswamy Ayangar, told the United Nation’s Security Council that in a plebiscite Kashmir had the option to “accede to Pakistan or remain independent”.
Archives, a mirror to history
Archival material shows that he was being deceitful and did not mean what he said. A diligent scholar, Rima Hooja, has published documents from the Sapru Papers ( Crusader for Self-Rule ; Rawat Publications). On May 4, 1948, Sri Tej Bahadur Sapru wrote to Ayyangar urging him to rule out a plebiscite. Kashmiri Pandits like Sapru and Nehru had settled in the United Provinces for generations, only to claim the right to speak on Kashmir’s behalf after 1947. They were Uttar Bharatiyas who, like Jawaharlal Nehru and Indira Gandhi, had a contempt for the people as if bread was all that they were after but were soulless. On Kashmir, Ayyangar was Nehru’s right-hand man. He could not have said what he did in his reply to Sapru on May 8, 1948, unless it expressed his Prime Minister’s view also: “We cannot afford to let Kashmir secede from India” (page 497). Nothing had happened in the three months since he spoke to the Security Council to induce change of mind. The conclusion is inescapable. When speaking to the Security Council he had lied through his teeth. Scores of pledges by Nehru were as insincere.
He was to do worse. On August 9, 1953, he had the State’s Premier Sheikh Abdullah dismissed from office through Karan Singh and other conspirators (Bakshi Ghulam Mohammed, G.M. Sadiq and Mir Qasim) and put in prison for 11 years on a false charge of conspiracy with Pakistan, for which there was not a tittle of evidence.
Apologists blamed Maulana Azad and Rafi Ahmed Kidwai for bad advice. Archival evidence revealed that Nehru had given written instruction to his private Secretary, M.O. Mathai, on July 31, 1953. Coups there have been since Independence for the ouster of Chief Ministers at the Centre’s behest, but never was the Army’s help sought. In this instance, it was, plus a bag full of currency notes. Nehru personally selected Major-General Hiralal Atal, Commander of 21 Communication Zone, now XV Corps, for “all assistance that you can give”, Atal wrote in his memoirs. Also involved was the family’s favourite in the army, B.M. Kaul, who distinguished himself in the war with China in 1962. Atal also described a Director of Organisation, “selected by Army Headquarters for an assignment which militarily was not within his sphere ... he mentioned that he was carrying with him a largish sum of money” for purposes which were no secret.
To the President on August 9, and in Parliament on August 10, Nehru falsely denied that he had interfered. Indira Gandhi was not spared. Nehru retailed the lie to her on August 9 when she was in Zurich. “It is a heart-breaking thing to happen,” she replied. On her return she tried to meet Abdullah in prison. Mathai prevented that, as his Note reveals.
These lies ceased to be Nehru’s alone. They were immediately owned by the entire political class, the media and academia. Nehru’s biographer Sarvepalli Gopal had access to all the papers, especially the instruction to Mathai. He had no qualms in asserting in his biography of Nehru: “All the documents so far available indicate that Nehru did not interfere or even hint at his preferences” (Volume 2; pages 131-32). This was published in 1979; Atal’s memoirs in 1972. Gopal was Nehru’s official biographer as well as editor of his Selected Works .
Do not exonerate Nehru. But the Sangh Parivar’s denunciations centre on his legacy of secularism. It was Nehru who secured Kashmir for India, but at a price which India still continues to pay. The nation is indoctrinated and in denial based on lies; the Kashmiris, more secessionist and rebellious. The march of history did not stop in 1953. Pakistan went to war against India in 1965. It cannot achieve at the conference table what it lost at its own chosen forum, the battlefield. Kashmir cannot be independent either. While India cannot permit its secession, Kashmiris cannot and do not accept the Union. The Musharaff-Manmohan Singh formula reconciled the two, the Union’s needs and Kashmiris’ rights.
On October 30, 1948, Deputy Prime Minister Vallabhbhai Patel said: “The moment we realise that the people of Kashmir do not want to be there, we shall not be there even for a minute” ( Hindustan Times , October 31, 1948).
He did not make India’s withdrawal conditional on the result of a referendum or plebiscite. A clear demonstration of the people’s wishes would suffice to make New Delhi “realise” that. A fair solution is urgently required. Neither time nor force is a solution.
It is much more than moral blindness, historical ignorance and constitutional illiteracy which drive the Dovals of this world to question Kashmir’s separate Constitution. It is the fascist communal mindset of the Rashtriya Swayamsewak Sangh (RSS) and the Bharatiya Janata Party (BJP). Its election manifesto of 1991 was based on V.D. Savarkar’s Hindutva. “From the Himalayas to Kanya Kumari, this country has always been one” on Bharat Mata. It cannot tolerate India’s rich regional cultural and religious diversity. Kashmir’s Constitution embodies all three. Spies and policemen should stick to their jobs.