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Memorandum, State Autonomy Committee
COMMITTEE TO BUILD RESPONSE ON AUTONOMY (CBRA)
  1. A considerable measure of distortion of facts and history has become a part of the perspectives of the special constitutional position, erroneously called, 'autonomy' that the Jammu and Kashmir is secured in the constitutional organisation of India. T he events in Jammu and Kashmir which followed the partition of India in 1947, leading to the accession of the States of India, have always pervaded that otherwise, more important aspects of political development in the State, the democratization of its government, the evolution of representative institutions, and the acceptance of political responsibility as the basis of state power. Most of these major issues, along with the crucial problem of evolving balances between the exercise of political authority and the rights and freedoms of the individual, were relegated to the background in view of the dispute with Pakistan, the occupation of almost half the territory of the State by that country and the United Nation intervention invoked by the Government of India. Perhaps, the decision to appoint the present Committee to examine the various aspect of the special constitutional position of the State, is a historic decision, because, it provides an institutional basis for an objective analysis and evaluation of the constitutional position of the State, the nature and extent of the autonomy, it envisages, the sets of federal relationship between the State Government and the Union Government which have grown over the period after the Constitution of India ca me into force in 1950, and also the imperatives of authority, the special constitutional position of the State and the constitution of Jammu and Kashmir embody. In the history of every nation a time comes, sooner or later, when it has to face the truth. F or the people of Jammu and Kashmir, that movement has arrived now.
  1. During the last two decades, a campaign of disinformation, has been in process, about the accession of the State of India, mainly to link the separatist and secessionist movements in the States with its special constitutional position. Pakistan's claim to the Muslim majority State of Jammu and Kashmir on the basis of the acceptance of partition of India, has led to the growth of a misconceived notion that visualises all Muslim majorities as separate national identities. The recognition of subnational identity of Jammu and Kashmir, underlines the acceptance of the continuity of the partition of India.
    However, the entire India of the Princely States, which spread over one-third of the territories of India and constituted one-fourth of its population was never brought within the ambit of the partition. The partition of India was strictly restricted to the British Indian provinces, which the British claimed belonged to them and they insisted was subject to their dispensation. The British repeated and emphatically told Indian National Congress, the Muslim League and the All India States People's Conference which spearheaded the liberation movement in the States, that the States did not belong to them and therefore, were not subject to their dispensation. They maintained that the States belonged to the Princes and the powers the British exercised by virtue of the Paramountcy over the States, would revert to their rulers and their future disposition would be the concern and the task of the Princes to accomplish. The British approach was in consonance with the position the Muslim League adopted in regard to the States. Jinnah and the other leaders of the Muslim League had greater stakes in the States ruled by the Muslim Princes than they had in the Muslim majority State of Jammu and Kashmir. They sought to keep the option open for the Muslim rulers to join Pakistan. They did not close the options for the rulers of Jammu and Kashmir either, and offered to support Maharaja Hari Singh in case he decided to assume independence.
     
  1. The Indian National Congress accepted the lapse of the Paramountcy and the reversion of its powers to the rulers of the States. The States People's Conference also accepted the lapse of Paramountcy and may it be submitted here that the National Conference was an affiliate organisation of the States People's Conference.
The transfer of powers in India in 1947, involved the division of the British Indian Provinces into two dominions, India and Pakistan and the liberation of the Indian States from the British Paramountcy. The two processes were distinctly separate and underlined political change which led to different consequences. The provinces were reorganised into two independent dominions; the States were released from the obligations of the Paramountcy and the rulers of the States were empowered to adhere to either of the two dominions, irrespective of the communal division, the Indian partition underlined. The State Departments of India and Pakistan, headed by Sardar Vallab Bhai Patel and Sardar Abdur Rab Nishtar respectively, opened negotiations with the Princes , for separate political settlements with them. Neither Patel, nor Nishtar demanded, at any time, the adherence of any State to either of the dominions as the basis of partition of the British India.
    Sardar Abdur Rab Nishtar offered whole-hearted support to the independence of the States, including the State of Jammu and Kashmir and strongly opposed any political arrangements which were sought to be reached with the Princes on the basis of the division.

    The conspiracy proved to be deeper and though the British government refused to accord the status of British dominions to the Princely States, it left the door open for separate negotiations with their rulers. Mountbatten informed the Princes, that he would forward to the British Government any requests from anyone of them to establish direct relations with Great Britain.
     

  1. The accession of the Jammu and Kashmir State to India was not contingent upon any considerations, which arose out of the facts of the Muslim majority character of its population. The accession of Jammu and Kashmir was not accomplished because of and by its Muslim majority population in contravention of the partition process. The British refused to recognise Muslim majority province as Muslim identities. They recognised only the Muslim majority regions of the British provinces as Muslim identities. They did not recognise any State as a Muslim identity on the basis of its Muslim majority population. They did not recognise any State as a Hindu identity on the basis of its Hindu majority. Neither Junagarh, nor Hyderabad were recognised as Hindu identities for the purpose of their accession. Jammu and Kashmir too was not recognised as a Muslim identity for the purpose of its accession. Geographical contiguity was more factoral in determining the accession of the States. The State of Kalat, located inside Pakistan, was forced to accede to Pakistan, in spite of its opposition to the accession of the State to Pakistan. The Jammu and Kashmir State was geographically contiguous to India and formed the most vital part of its northern frontier.

Article 370

  1. Maharaja Hari Singh, the ruler of Jammu and Kashmir State, signed the same standard form of the Instrument of Accession in October 1947, which the other Indian rulers signed to accede to the then Indian dominion. The Instrument of Accession was evolved by the States Department headed by Vallabh Bhai Patel, and was based upon the principles, the Cabinet Mission had stipulated for the accession of the Indian States to the All India federation. All the rulers of the acceding States retained all the residuary powers of government and the Instrument of Accession they signed underline the delegation of powers to the Dominion Government in respect of foreign affairs, defence and communication only. Among the other rulers, Hari Singh too retained the residuary powers of the government, and the Instrument of Accession he signed envisaged the delegation of powers to the Dominion Government of India in respect of foreign affairs, defence and communications. The Instrument of Accession did not bind any acceding State, including Jammu and Kashmir, to accept the future Constitution of India.
    No separate or special provisions were incorporated in the Instrument of Accession signed by Hari Singh and there was no precondition or agreement, specially accepted by the Government of India to any separate and special constitutional arrangement, to t he exclusion of the other acceding States.
    That the State Department of the dominion Government, or the Ruler of the State or the Congress leadership accepted any condition that Jammu and Kashmir would be provided a special constitutional position or any particular brand of autonomy or would be recognised as a separate Muslim identity, is a travesty of history. Neither Nehru, nor Patel gave any assurance to the Conference leaders that the Jammu and Kashmir State would be recognised as a separate constitutional entity because of the Muslim majority in its population.

    When the invading armies of Pakistan were fast approaching Srinagar, the Prime Minister of Jammu and Kashmir, Mehar Chand Mahajan arrived in Delhi, with a request from Hari Singh for help against the invaders. Mahajan was instructed to inform the Government of India that the Maharaja had decided to accede to the Indian Dominion and accepted to transfer whatever authority he would be required to make in favour of the National Conference. Sheikh Mohammad Abdullah was in Delhi and neither he nor Nehru laid any condition to Mahajan in respect of the future constitution of the State. Mahajan too did not make any commitment on the separate Muslim identity of Jammu and Kashmir or its autonomy. Nehru sought a substantial transfer of authority to the National Conference which was in consonance with pledges that the Congress had given to the people of all princely States. The Congress was committed to replace personal rule, which characterised the political organisation of the States, by representative institutions of the basis of administrative responsibility which was accepted for the reorganisation of the governments in the Indian Provinces. Jammu and Kashmir was not recognised as an exception.

    The Instrument of Accession, which the rulers of the princely States executed to join the Indian Dominion, reserved them the right to convene Constituent Assemblies to frame constitutions for their respective governments. The ruler of Jammu and Kashmir also reserved the right to convene a Constituent Assembly to frame a constitution for his government. The Constituent Assembly of India, was by mutual consensus of the Premiers of the States and the representatives of the Constituent Assembly, entrusted with the task of evolving a model constitution, which the Constituent Assemblies of the States would follow in order to avoid any conflict between the Constitution of India and the constitutions of the States. Constituent Assemblies were convened in the Mysore State, the States Union of Saurashtra and the States union of Travancore-Cochin.

    In 1949, an extra-ordinary decision was taken by the Premieres of the States in a Conference held in Delhi. They decided to entrust to the Constituent Assembly of India the task of framing a uniform set of constitutional provisions for all the States. The constitutional provisions for the States, the Conference decided, would be incorporated in the Constitution of India.
     

  1. The National Conference leaders did not accept the decision of the Premiers Conference and insisted upon convocation of a separate Constituent Assembly for Jammu and Kashmir. Consequently, a conference of the Conference leaders and representatives of t he Dominion Government, in which Nehru and Sheikh Mohammad Abdullah participated, was convened in Delhi, shortly after the Premiers Conference. A number of issues, pertaining to the fundamental rights and related safeguards, freedom of faith, emergencies arising out of war, rebellion and constitutional breakdown in the States, jurisdiction of the Courts division of powers between the Union and the federating States, the convocation of the Constituent Assembly in the State, came up for deliberation in the Conference. The Constituent Assembly of India had evolved provisions in respect of the territories of the Union, citizenship, fundamental rights, Principles of State Policy, jurisdiction of he courts and emergencies. The Constituent Assembly of India had also evolved a scheme of the division of powers between the Union and the States, which it proposed would replace the delegation of powers stipulated by the instrument of Accession the acceding States had signed.
     The Conference leaders stunned Nehru and the other Congress leaders when they refused to accept the application of any provision of the Constitution of India to the state and insisted upon the continuation of federal relations between the proposed Union of India and Jammu and Kashmir on the basis of the Instrument of Accession. In other words, they demanded the exclusion of the State from the constitutional organisation of India and its reorganisation into a separate political entity which would be aligned with Union of India in respect of external relations, defence and communications. In fact, the National Conference demanded the restoration of control over the state army to the Interim Government of the State, after the Indian army was withdrawn. The Conference leaders demanded that :
     
    1. the rule of the Dogra dynasty be abolished;
    2. the State be excluded from the constitutional organisation of India;
    3. the relations between the Union and the State be governed by the stipulations of the Instrument of Accession.
    4. the control over the State army be transferred to the Interim Government of the State;
    5. the Interim Government be empowered to institute a separate Constituent Assembly to draw up a Constitution for the State.


    The Indian leaders agreed to leave a wider orbit of authority to the State Government and accepted to vest the residuary powers with it. They agreed to the demand for the abolition of the Dogra rule, and the institution of a separate Constituent Assembly for the State. However, they refused to countenance the exclusion of the State from the Indian Union and its constitutional organisation. Nehru, evidently disconcerted with the proposals, the Conference leaders made, told them that he could not accept t o deprive the people of the State of the Indian citizenship, fundamental rights and the Directive Principles of State Policy which reflected the pride of the Indian people in the ideological commitments of their liberation struggle.

    The National Conference harboured completely different views about the constitutional relations between the State and India. They visualised the State as a separate political entity with its own constitutional organisation, independent of the political organisation of India in respect of which the Union of India assumed the responsibility of defence, communications and external relations within the stipulations of the Instrument of Accession.

    The atmosphere in which Delhi Conference was convened, was pervaded by a deep feeling of uncertainty. A month before the Delhi Conference was held, Sheikh Mohammad Abdullah had thrown a bombshell in the Indian camp when he told the correspondent of 'Scotsman' that the independence of Jammu and Kashmir would be the most suitable course to end the dispute over Kashmir. In case, Sheikh Mohammad Abdullah maintained, Kashmir was able to establish good neighbourly relations with India and Pakistan the two countries would settle down to peace and live as good neighbours.

    The National Conference leaders made a tactical retreat mainly to bide time and an agreement was finally reached between them and the Congress leaders. The agreement stipulated:
     

    • that Jammu and Kashmir would be included in the territories of Indian Union;
    • provision of the Constitution of India in respect of citizenship, fundamental rights and related legal guarantees, Directive Principles of State Policy and the federal judiciary would be extended to the State;
    • the division of powers between the State and the Union of India would be governed by the stipulation of the Instrument of Accession and not the Seventh Schedule of the Indian Constitution;
    • the administrative and the operational control of the State army would remain with the Government of India;
    • A separate Constituent Assembly of the State would be convened to draw up the constitution for the State; and
    • the Constituent Assembly after it was convened would determine the future of the Dogra rule.

    The agreement was short lived. Not long after the Conference leaders returned to Srinagar, they made public pronouncements that the Jammu and Kashmir State would not compromise on the issue of autonomy and the Constituent Assembly of the State would evolve a set of separate Principles of State Policy, a Bill of Rights and mechanism for election to the constitution-making body. The Conference leaders gave ample expression to their reluctance to accept the inclusion of the State in the Indian Union and the application of any provisions of the Constitution of India to the State.

  1. The issues came to a head when Gopalaswamy Ayyangar sent the draft constitutional provisions, he had drawn up for the State, to the Conference leaders for their approval. The draft provisions were based upon the agreement reached in Delhi in May 1949, between the representatives of the Government of India and the Conference leaders. After closed door deliberations, the Conference leaders placed the draft proposals before the Working Committee of the Conference. The Working Committee turned down the proposal promptly.
Sheikh Mohammad Abdullah sent an alternate draft to Ayangar which envisaged exclusion of the State from the Indian Union and its constitutional organisation. The draft stipulated the abolition of the Dogra rule and the reorganisation of the State into an independent political entity which would be federated with the Indian Union on the basis of the Instrument of Accession. The draft proposed that the separate political identity of the State would be based upon the Muslim majority character of its population, its separate culture and history and the aspirations of its people for economic equality and political freedom which the Constitution of India did not enshrine.
Ayangar received a jolt when the communication of the Conference leaders, along with the draft proposals drawn up by Sheikh Mohammad Abdullah, was delivered to him. On 14 October 1949, he had a long meeting with Sheikh Mohammad Abdullah and Mirza Afzal Beg in Delhi and tried to persuade them to adhere to the agreement they had accepted in the Conference at Delhi, held earlier in May. The Conference leaders did not relent and told Ayyangar bluntly that they would not accept the application of the Constitution of India to the State.
Ayangar failed to face the Conference leaders with firmness. He made a vain bid to placate the Conference leaders by offering to exclude fundamental rights and related legal safeguards from the provisions of the Constitutions of India, which were proposed to be extended to the State in his draft. To his consternation, the Conference leaders rejected the modified draft as well. They informed Ayangar that the National Conference would not accept the application of any provision of the Constitution of India, including the provisions with regard to the territories of the Union and citizenship and that it accepted only the Instrument of Accession as the basis of any relationship between the State and the future Union of India. When Nehru and other Indian leaders insisted upon the inclusion of the State, at least in the basic structure of the Constitution of India, the Conference leaders broke off the negotiations and threatened to withdraw from the Constituent Assembly.
Fearful of a crisis, the resignation of Conference leaders from the Constituent Assembly of India would create in Jammu and Kashmir and its repercussions outside India. Ayangar beseeched them not to take any precipitate action which would have an adverse effect on the Indian interests in the Security Council. A breach with the Conference leaders, he believed would undercut the support India had among the Kashmiri speaking Muslim who Nehru, still believed, would win the plebiscite for India. The Conference leaders, foxy and sly, used the United Nations intervention, ironically enough invoked by India to secure the withdrawal of the armies of Pakistan from the occupied territories, to foist on the Indian leaders, a settlement which placed the State in a position outside the political organisation of India.
    Nehru was abroad in the United States of America. Ayangar met the Conference leaders and assured them that the Government of India would accept the constitutional position for Jammu and Kashmir outside the Indian constitutional organisation. He further assured them that Government of India respected the aspirations of the Muslims of the State, and therefore, would accept the institution of a separate Constituent Assembly of the State which would frame the constitution of the State and also determine the future of the Dogra dynasty. The provisions of the Instrument of Accession, Ayangar assured them further, would determine the constitutional relationship between the State and the Union of India.

    Ayangar drew up a fresh draft in consultation with Mirza Afzal Beg. Sheikh Mohammad Abdullah pulled the strings from behind the scene. The revised draft, prepared by Ayangar and moved in the Constituent Assembly of India, envisaged:
     

    • no provisions of the Constitution of India except Article(1), would be extended to the State:
    • the division of powers between the Union and the Jammu and Kashmir State would be limited to the stipulations of the Instrument of Accession:
    • a separate Constituent Assembly would be convened in Jammu and Kashmir to frame its Constitution;
    • the President of India would be empowered to vest more powers in the Union Government in respect of Jammu and Kashmir in concurrence with the State Government;
    • the President of India would be empowered to modify the operation of special constitutional provisions for the State on the recommendations of the Constituent Assembly of the State;
    • the State Government would be constructed to mean, the Maharaja acting on the advice of the Council of Ministers appointed under his proclamation dated 5 March 1948.
    The draft provisions were incorporated in Article 306-A of the draft constitution of India. The draft Article 306-A was renumbered Article 370 at the revision stage.
  1. Article 306-A was circulated in the Constituent Assembly on 16 October 1949. It came up for consideration of the Assembly the next day. Several members of the Constituent Assembly detected an error in the draft provisions which Ayangar had overlooked. The draft Article defined the State Government as the "Council of Ministers appointed under the Maharaja's Proclamation dated 5 March 1948". The members of the Constituent Assembly pointed out to Ayangar that the definition of the State Government envisaged a perpetual interim Government which would lead to the creation of an anomalous situation of excluding all successor governments from the provisions of the Constitution of India. Ayangar modified the draft to remove the anomaly and redefined the State Government as the "person for the time being recognised 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 19 48."
The Conference leaders took strong exception to the change in the definition of the State Government. Mirza Afzal Beg threatened to move an amendment to the draft provisions of Article 306-A seeking to alter the definition of the State Government.

Beg had actually sought to include provisions in the draft Article 306-A which envisaged a perpetual Interim Government in the State and which could be used as a lever against India in future. He and the other Conference leaders, were disconcerted with t he inclusion of the State in the First Schedule of the Constitution of India and wanted some pretext to block the passage of the special provisions in the Constituent Assembly.

Ayangar could not remodify the definition of the State Government in view of strong reaction against it in the Constituent Assembly. He failed to persuade the Conference leaders to condescend to the modifications he had brought about in the draft. When Article 306-A came up for the consideration of the Constituent Assembly, the Conference leaders sulked away and did not join the deliberations on the draft provisions till Ayangar completed his speech. They sat glum when the draft provisions were put to vote and passed unanimously.

Immediately after the draft provisions were adopted by the Constituent Assembly, they sent a sharp rejoinder to Ayangar demanding the rescindsion of Article 306-A as adopted by the Constituent Assembly, failing which they threatened to resign from the Constituent Assembly. Ayangar was stunned, he sent a plaintive note to the Conference leaders entreating them not to take any action which would prejudice the Indian interests, and wait for Nehru's return. The Conference leaders did not resign from the Constituent Assembly.
  1. Article 370 in its original form envisaged exclusion of Jammu and Kashmir State from the secular Constitutional organisation of India, and its reorganisation into a separate political identity based upon the Muslim majority character of its population . It imposed a limitation on the application of the provisions of Constitution of India to the State. The division of powers between the State and the Union was also limited to the stipulations of the Instrument of Accession. Article 370 was therefore, no t an enabling act. It was, in fact, an Act of limitation on the application of the Constitution of India to the State.

POLITICAL FALL OUT

  1. Many motives prompted the National Conference to exclude the State from the constitutional organisation of India:
    • Since the execution of the Instrument of Accession by Maharaja Hari Singh, which the Conference leaders called "Paper Accession", was subjected to a plebiscite, the Muslims in Jammu and Kashmir believed that they had assumed a veto over the accession of the State to India. To retain the Muslims, the right to veto on the accession of the State, the Conference leaders opposed any constitutional postulates and agreements with India, which tantamount to the substitution of the Instrument of Accession, or alter its consequences.
    • Later events proved that the Conference leaders were inclined to ensure a placement of equidistance for the Jammu and Kashmir from India and Pakistan. The Conference leaders planned to consolidate the State into a separate political organisation, which could, at an appropriate time be projected as an alternative to the accession of the State to either of the two States, India and Pakistan.
    • Another consideration the Conference leaders had, to oppose the inclusion of the State into the constitutional organisation of India, was to evade the secular integration of the people of the State into the Union of India, on the basis of the rig ht to equality, right to protection against discrimination on the basis of religion and right to freedom of faith, propagation of faith and right to safeguard as a religious minority. The Conference leaders disapproved of all forms of safeguards which the provisions of the Constitution of India envisaged in respect of fundamental rights, on the ostensible pretext that such safeguards would frustrate the resolve of the Interim Government to undertake economic, political and social reforms in the State. The real motivation, however, was that the right to equality, right to protection against discrimination on the basis of religion right of freedom of faith, right to property and other constitutional safeguards enshrined by the Constitution of India conflicted with the Muslimisation of the State. In fact, the Interim Government vigorously enforced the communal precedence of the Muslim majority in the government and administration of the State, its economic organisation and its society.

    The exclusion of the State from the constitutional organisation of India had disastrous consequences:
     

    • The National Conference endeavour to retain the Muslim a veto on the accession of the State, by limiting constitutional relations between the state and India to the Instrument of Accession virtually repudiated the act of accession, Hari Singh had accomplished;
    • The exclusion of the State from the Indian constitutional organisation, on the basis of the Muslim majority character of its population, coincided with the ideological propositions which formed the basis of the League's claim to Pakistan.
    • The Hindus, among them particularly the Hindus in Kashmir, the Buddhists and the Sikhs were exposed to political oppression economic deprivation and social aggrandisement in the absence of legal safeguards, which followed from the enforcement of Muslim precedence in the government, economic organisation and the society of the State. They were reduced to a state of servitude in a Muslim State.
    • Arbitrary exercise of State power, in the name of Islamisation, undermined the political responsibility, representative institutions and liberalisation of society in the State to the detriment and disadvantage of all people.

    •  
  1. The cumulative effect of the insulation of the State began to be felt sooner than expected. Article 370, led to the creation of the following consequences:
    • the secessionist forces, operating in the State from the time of the accession of the State to India, supported by Pakistan, joined the National Conference in its endeavour to retain the Muslims the veto on the accession of the Jammu and Kashmir, which in due course of time led to the emergence of a new Muslim movement, committed to a plebiscite;
    • the Hindu reaction against the exclusion of the State from the constitutional organisation of India, unfolded into an open agitation for the integration of the State with the secular political organisation of India.
    • the stagnation of the economy of the State led to a serious economic and financial crisis in the State. Indian investment in the State was barred by the Interim Government. Investment from countries outside India was expected to be made available only after the option of self-determination was exercised by the people of the State. The economic organisation of the State, hardly in a position to sustain its people, crumbled rapidly.
  1. The decision of the Interim Government of the State to end the Dogra rule and replace the Ruler by a Chief Executive, presumably elected by the Muslim majority of the state, created a sharp reaction both inside and outside the State. The Hindus and the other minorities in the State accused the National Conference of abolishing the office of the Ruler, to install a protege of the Conference in his place to fortify the separate identity of the State. The Government of India, which had allowed the exclusion of the State as a transitional measure, due to the reluctance of the Conference leaders, who had sought to use the United Nation to their advantage, had by now realised the inherent dangers in the exclusion of the State from the constitutional organisation of India. In fact, the Government of India, promptly informed the Conference leaders, that any changes in the existing constitutional organisation of the State, mainly the abolition of the dynastic rule of the Dogras, needed to be placed in the context of an overall change in the transitional provisions of Article 370 in order that the changes in the constitutional organisation of the State did not conflict with the Constitution of India. Evidently, the Government of India expressed its preference for the inclusion of the State in the broad structure of the State before any changes were envisaged in the constitutional organisation of the State.
The Conference leaders, who had now assumed the position that the special constitutional provisions embodied in Article 370, were subject to the final decision of the Constituent Assembly, were surreptitiously preparing to use the Constituent Assembly of the State to freeze the provisions of Article 370, and ensure the exclusion of State from the constitutional organisation of India, on more or less, a permanent basis. Perhaps, the removal of Hari Singh from the office of the Ruler of the State was aimed to get rid of the last instrument the Government of India would use to arrive at a fresh settlement on the constitutional relations between the State and the Union.
The National Conference leaders, had a high power meeting with Nehru and his colleagues, including Ayangar and Azad. Sheikh Mohammad Abdullah, joined by Beg, Shahmiri, the Constitutional Advisor to the Constituent Assembly, besides Mir Qasim, constituted the Conference delegation.
The Indian leaders agreed to the changes in the constitutional organisation of the State, proposed by the National Conference, and accepted to allow the State exercise a wider residuary powers, but they proposed that, the exclusion of the State from the Indian constitutional organisation would have to be ended and the State integrated in the Republic of India in respect of territories, citizenship, fundamental rights and related safeguards, jurisdiction of the Supreme Court, emergencies arising out of war and the division of financial powers. The Conference leaders, though strongly opposed to the extension of any provisions of the Constitution of India to the State, were finally persuaded to accept a partial application of the provisions of the Constitution of India to the State in respect of citizenship, fundamental rights, original jurisdiction of the Supreme Court and the emergencies arising out of war and aggression. An understanding was reached between the two sides that the constitutional reforms in constitutional organisation of the State and the changes in the constitutional relations between the State and the Union, would be undertaken by the Constituent Assembly simultaneously. the agreement later came to be called the Delhi Agreement.
  1. After the Conference leaders returned to Srinagar, they resiled from the agreement arrived at, in Delhi. In November 1952, a formal proposal to abolish the Dogra rule was moved in the Constituent Assembly. The office of the Ruler was abolished and rep laced by the office of a Head of the State, who was elected by the Constituent Assembly, subject to the confirmation of the President of India for a fixed tenure. The Conference leaders elected Yuvraj Karan Singh the Head of the State. Thereafter, the Interim Government initiated no moves to bring about the changes in the constitutional relations between the State and the Union, as agreed upon in Delhi.
The Delhi Conference and the consequent agreement, was used as a ruse by the Conference leaders to eliminate Hari Singh. The contention of the Government of India that the provisions envisaged by Article 370 were transitional and temporary and deserved t o be modified in view of the necessity to include the State in the Indian constitutional organisation, evoked severe opposition from the Interim Government. The events which followed are a part of history. In August 1953, the Interim Government headed by Sheikh Mohammad Abdullah was dismissed and replaced by a second Interim Government, headed by Bakshi Gulam Mohammed.
  1. After the change over in the State Government, fresh discussions were held between the representatives of the second Interim Government and the Government of India. It was agreed upon that the provisions of the Constitution of India would apply to the State in respect of the territory of the Indian Union, citizenship, fundamental rights and the original jurisdiction of the Supreme Court, the emergencies arising out of war and aggression. Consequently a proclamation of the President was issued on 14 May 1954, which extended the application of the provisions of the Constitution of India, with several exceptions and reservations to the State. In the years, which followed the application of the provisions of the Constitution of India in respect of elect ions, audits, financial and administrative relations, emergencies arising out of constitutional breakdown and powers of the Supreme Court, were extended to the State with crippling reservations.
The reservations and exceptions to the application of the provisions of the Constitution of India to the State were so devised as to ensure the Interim Government as well as the successive State Governments the authority :
    • to perpetuate the separate political identity of the State on the basis of its the Muslim majority character of its population;
    • to Muslimise the Government and society of the State;
    • to enforce communal precedence of the Muslim majority in the administration of the State, its economic organisation and its social and cultural institutions in order to subordinate the Hindus and the other minorities to the slavery of a Muslim State.

    •  
  1. During the years that followed, the insulation of the State into a separate Muslim identity, the Muslimisation of its government, economic organisation and the enforcement of the communal precedence of the Muslim majority in the society of the state, led to the consolidation of the secessionist forces. The militarisation of Islamic fundamentalism in the aftermath of Pakistan's intervention in Afghanistan, found its support basis in the Muslimised government, society and economic organisation of the State.
  1. It is in fact the so-called autonomy of the State, which was used as a cover to Muslimise its government and economic organisation and fundamentalise its social culture, eliminate the Hindus and other minorities, obliterate their past and history, which formed the foreground of the militant violence which broke out in 1989-90. It is not the erosion of autonomy which consolidated the separatist, communal and secessionist forces in the State. All such insinuations are a misreading of history and part of the disinformation campaign to camouflage, the real character of Muslim communalism and separatism in the State.
The Committee submits that:
    • the separate political identity of the State based upon the Muslim majority character of its population contravenes the basic structure of the Constitution of India, which does not accept religious majority as a basis of political organisation.
    • Muslimisation of the government and society of Jammu and Kashmir is a negation of Indian secularism;
    • the enforcement of Muslim precedence in the administration, economic organisation, society and culture of the State, as a part the process of its autonomy is a violation of the basis fundamental rights the Constitution of India postulates.

    •  
  1. The autonomy of the State, that it has enjoyed so far is an anti-thesis of Indian unity. It was a mechanism devised by the National Conference leadership in 1949, to secure a veto on the Instrument of Accession, and exclude the State from the territories of India and finally break it off from the Indian State. The claim to the restoration of 1952 position, underlines:
    • the revocation of the provisions of the Constitution of India extended to the State after 1954, to secure its re-exclusion from the constitutional organisation of India;
    • after the State is excluded from the Constitutional organisation of India, use the militant violence to force a settlement on India, in which the Kashmir province, the contiguous Muslim majority regions of the Jammu province and the frontier of Ladakh are delinked from India.
  1. The constitutional provisions envisaged by Article 370 are transitory provisions, and Ayangar assured the Constituent Assembly of India, that in view of the invasion of the State, occupation of a part of its territories by Pakistan and the United Nations' intervention, the State was excluded from the Indian constitutional organisation. He assured the members that the Constitution of India would be made applicable to the State, integrating it into the Indian Republic. The framers of Article 370, did no t and could not have visualised a perpetual Constituent Assembly.
The operation of the provisions of the Constitution of India, applicable to the State by the various Presidential orders including the Presidential Order of 1950, can be revoked by a Presidential order under section (d) of Article 370, as the provision of the sub-clause of clause(I), empowers the President to order the application of other provisions of the Constitution of India, which evidently is in consonance with the intentions of fathers of Indian constitution to integrate the Jammu and Kashmir State into the Indian Republic at an appropriate time.
Sub-clause(d) of clause(1) of Article 370, it must be noted, empowers the President to widen the application of Constitution of India to the State to integrate it in the Republic of India. The President can impose restrictions only on such provisions which he extends to the State by an order with the concurrence of the State. He cannot impose any restrictions on the provisions which are already applicable to the State, that is the spirit of clause(d) of Article 370 and no President of India will dare, transgress the constitutional limits, which his powers are subject to.
In its spirit and substance, clause(2) of Article 370 also reflects the intentions of the founding fathers of the Indian Constitution that the framers of the Indian Constitution, vested the President of India with the powers to order the revocation of the operation of Article 370 on the recommendations of the Constituent Assembly of the State, strengthens the conviction that the founding fathers vested the powers conjointly with the President and the Constituent Assembly of the State to set aside the operation of Article 370 to further integrate the State in the constitutional organisation of India. The powers of the President to order that Article 370 shall be operative only with such exceptions and modifications from such date as he may specify, forms a part the substantive content of the whole clause(3). In this regard too, the intentions of the founding fathers of the Indian Constitution, are manifestly evident.
It must also be noted that the founding fathers of the Indian Constitution laid down provisions, which were intended to bring to an end the operation of Article 370, or modify its operation, in order to revoke the limitations it imposed on the application of the Constitution of India to the State or modify them to allow a wider flow of the Indian Constitution to the Jammu and Kashmir State. Article 370, it noted, was not intended to insulate the State from the Constitution of India permanently and the provisions of clause(3) were specifically included to widen the applicability of the Constitution of India to the State, not to limit or restrict it. The clause(3) could not have been intended to provide for restricting the operation of the application of t he Constitution of India to the State, because, when the Article 370 was framed, no provision except of Schedule-VII, corresponding to the delegation of powers stipulated by the Instrument of Accession and Schedule-I, defining the territories of India we re applicable to the State. Clause(3) could not have been intended to vest powers with the President to revoke the operation of Schedule-I and Schedule-VII, to exclude the State from the territories of India and the reversion of the delegation of powers t o Union Government in respect of defence, communications and foreign affairs.
Clause(3) of Article 370, cannot be used against the intended motive of the Constituent Assembly. Gopalaswami Ayangar clarified the intention of the framers of the Constitution of India, behind Clause(3) of Article 370 :
"The last clause refers to what may happen later on. We have said article 211-A will not apply to Jammu and Kashmir State. But that cannot be a permanent feature of the Constitution of the State, and hope it will not be. So the provision is made that when the Constituent Assembly has met and taken a decision both on the Constitution for the State and on the range of federal jurisdiction over the State, the President may on the recommendations of the Constituent Assembly issue an order that this Article 3 06(A) shall either cease to be operative or shall be operative only subject to such exceptions and modifications as may be specified by him. But before he issues any order of that kind the recommendations of the Constituent Assembly will be a condition precedent. That explains the whole of this Article.
The effect of this Article is that Jammu and Kashmir State, which is now a part of India, will continue to be a part of India, will be a unit of future federal republic of India and the Union legislature will get jurisdiction to enact laws on matters specified either in the Instrument of accession or by later addition with the concurrence of the Government of the State. And steps have to be taken for the purpose of convening a Constituent Assembly in due course which will go into the matters I have already referred to. When it has come to a decision on the different matters it will make a recommendation to the President who will either abrogate Article 306-A or direct that it shall apply with such modifications and exceptions as the Constituent Assembly may recommend".
It must be noted that State legislature, has not succeeded to any of the Constitutive powers the Constituent Assembly exercised in respect of Article 370. It cannot at any time initiate amendment or changes in the applicability of Article 370 or the subsequent Presidential orders, which have been promulgated from 1954 onwards. The Constitution of Jammu and Kashmir embodies the intention of the Constituent Assembly of the State. It imposes an absolute limitation on the powers of the State Legislative Assembly and the Legislative Council to initiate any amendment or change in the applicability of Schedule-I and Schedule VII of the Constitution of India to Jammu and Kashmir State. The matters placed outside the scope of the powers to amend the Constitution, vested with the State legislature, are:
    • provisions of the Constitution of India applicable to the State;
    • provisions of section 3 of the Constitution of Jammu and Kashmir;
    • provisions of section 5 of the Constitution of Jammu and Kashmir;
    • the procedure of amendment of the Constitution of Jammu and Kashmir.

    The President of India, in order to bring about any change in the applicability of the provisions of the Constitution of India to the State, is therefore, left with no alternative except to ask his government to move a Bill in the Parliament of India to amend Article 370. The Parliament of India represents the whole people of India on the basis of secular equality, including the Hindus of Jammu and Kashmir. The representatives of the Indian people will not accept the re-delimitation of Jammu and Kashmir into a separate political identity on the basis of the Muslim majority character of its population, mainly because :

    • the segregation of Jammu and Kashmir into a Muslim State, outside the secular constitutional organisation of India will conflict with the secular basis of the Indian Constitution;
    • the Hindus and other minorities in Jammu and Kashmir cannot be deprived of the fundamental rights which though, partially, they enjoy by virtue of the application of the Constitution of India to the State, and subjected to the slavery of a Muslim State.

    •  
  1. In Jammu and Kashmir State, a long pernicious movement for the secession of the State from India, on the basic assumptions
  • that the Muslim majority in Jammu and Kashmir formed a part of the Muslim India, which was separated by virtue of the partition of India to form the State of Pakistan and
  • that they had the option to decide the final disposition of the State in respect of its accession. The secessionist movement followed an identical ideological commitment to a separate Muslim political organisation which was governed by Islam and which was advocated by the Muslim league in support of the division of India. The secessionist movement, therefore, was fundamentally communal, separatist and theocratic in character. The militarisation of the secessionist movement in 1989, followed the same basic commitments to communalisation and secession of the State from India and its Muslimisation, within or outside Pakistan.  The White Paper issued by the Joint Human Rights Committee states quite aptly:

  •  
    "A more militant outlook inside as well as outside the various secessionist organisations including the Plebiscite Front, developed after the 1965 Indo-Pakistan war. A new generation of Muslim youth had grown under the shadows of the movement for plebiscite , which was imbibed by the ideological commitment to the Muslim nation of Pakistan. The movement for plebiscite, whatever may now be said to whitewash its significance, upheld the quest for a separate and independent state for the Muslims, aligned with the Muslim nation of Pakistan completely bred upon the spoils of the Muslim majoritarianism and Muslim precedence, and oriented to the Muslimised political culture of the State, totally fundamentalist in content, the new generation slowly assumed the leader ship of the secessionist movements in the State. The new leadership as it emerged stressed that:
    • The Muslim leadership of the National Conference had supported the accession of the state to India in 1947, against the will of the Muslims.
    • The secessionist movement led by the Plebiscite Front would not be able to liberate the Muslims from the Indian yoke because the form of protest against India, it had followed was not adequate to force India to leave Kashmir.
    • The use of armed force alone could compel India to accept the right of the Muslims in the State to self-determination.
    • The Muslim state of Jammu and Kashmir was a natural part of the Muslim nation of Pakistan".
  1. For the last six years, an unabated war of attrition against India is going on inside the State which is aimed to:
    • delink the State from India and secure its integration with the Muslim homeland of Pakistan.
    • demolish the secular, social and political organisation of the State and convert it into a Muslim theocracy.
Politically, therefore, any linkage between the restoration of 1953 status and militarisation of secessionism implies that:
    • The militant secessionist forces now operating in the State do not accept the exclusion of the Jammu and Kashmir from the constitutional organisation of India as a basis of a settlement on Kashmir.
    • The militant forces do not accept restoration of the 1953 status as a basis of a settlement on Kashmir and their military operations will continue, inspite of the exclusion of the State from the Indian constitutional organisation. In either option cited above, the fundamental question which the proponents of the 'greater autonomy' must answer are:
      • What would be the guarantee that after State is excluded from the Indian political organisation, the secessionist forces, will not take advantage of the dissolution of all federal instrumentalities in the state and deliver another military offensive against Kashmir?
      • In case the militant violence continues even after the State is excluded from the Indian Union, who would guarantee that the exclusion of the State from the Indian political organisation would not be used as a plank to pull the State out of India?
      • In the State, which is excluded from the Indian political organisation only on the basis of its Muslim majority character and to ensure its Muslimisation, how would the return of half a million Hindus, flushed out of Kashmir and Doda, under a well devised plan of ethnic cleansing, be ensured?
  1. The new world, governed by the Universal Declaration of Human Rights does not accept any majority oppression as a part of legitimate political process. The restoration of 1953 status, virtually underlines the recognition of the Muslim majoritarianism as a basis of constitutional organsiation of Jammu and Kashmir and its relation with India.
Any such proposition is not acceptable to the Hindus and the other minorities in the State. It violates the secular character of Indian polity, Indian commitment to human rights and right to life, equality and freedom, that the Hindus, and other minorities possess, not only in consequence of the Constitution of India but as inherent and inviolable claims, to justice. With widespread militant violence going on unabated in the State, and the context of international involvement forced by militarisation of secessionism upon India, the demand for the exclusion of the State from the Indian constitutional organisation, has sinister forebodings. Disengagement of the state from the Indian political organisation, while the war of attrition is raging in the State, will tantamount to accept defeat before the war actually ends.
  1. The restoration of the separate political identity of the State on the basis of the Muslim majority character of its population will reinforce the Muslim claim to a veto on the accession of the State to India.
The insistence of the Muslim League on a separate State to protect the Muslims from the Hindu majority in India and the right of the Indian Muslims to reconstitute themselves into a Muslim State, were the two basic planks, on which India was divided. The creation of an autonomous State of Jammu and Kashmir on the territory of India, but outside its political organisation on the same basis will go half way to substantiate the claim of Pakistan to Jammu and Kashmir. The Committee must consider, seriously, that neither the State government nor the Government of India has the right to bring about the dissolution of the State of India.
1. Bansi Lal Kaul  Chairman
2. Dr.M.K.Teng Member
3. O.N.Pandita Member
4. Prof. K.B.Razdan Member
5. Ashwani Kumar Member
6. S.Raina Member
7. Vijay Kaul Member

COMMITTEE TO BUILD RESPONSE ON AUTONOMY (CBRA)

Date : 25-02-1997,
Jammu (INDIA)

Panun Kashmir

   
 
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