Article 370 of the Indian Constitution is a 'temporary provision' which grants special autonomous status to Jammu and Kashmir. Under Part XXI of the Constitution of India, which deals with "Temporary, Transitional and Special provisions", the state of Jammu and Kashmir has been accorded special status under Article 370.
All the provisions of the Constitution which are applicable
to other states are not applicable to J&K. For example, till 1965, J&K
had a Sadr-e-Riyasat for governor and Prime Minister in place of chief
minister.
The Untold Story
The provision was drafted in 1947 by Sheikh Abdullah, who
had by then been appointed Prime Minister of Jammu and Kashmir by Maharaja Hari
Singh and Jawahar Lal Nehru. Sheikh Abdullah had argued that Article 370 should
not be placed under temporary provisions of the Constitution. He wanted 'iron
clad autonomy' for the state, which Centre didn't comply with.
According to this Article, except for defence, foreign
affairs, finance and communications, the Parliament needs the state
government's concurrence for applying all other laws. Thus the state's
residents live under a separate set of laws, including those related to
citizenship, ownership of property, and fundamental rights, as compared to other
Indians. As a result of this provision, Indian citizens from other states can
not purchase land or property in Jammu & Kashmir.
Under Article 370, the Centre has no power to declare
financial emergency under Article 360 in the state. It can declare emergency in
the state only in case of war or external aggression. The Union government can
therefore not declare emergency on grounds of internal disturbance or imminent
danger unless it is made at the request or with the concurrence of the state
government.
It is often not realized that among the causes of Kashmir
problem – inclusion of plebiscite in the Instrument of Accession, reference of
Kashmir to UN, halting Indian offensive when it was poised to drive out the
invaders from Kashmir, Article 370 has played no less a part in preventing
J&K from becoming an integral part of the Indian Union. Not many people are
aware as how and why this Article was formulated and included in the Indian Constitution
despite grave misgivings of Sardar Patel and indeed a large number of the
members of Congress Working Committee and Constituent Assembly.
Article 370 was worked out in late 1947 between Sheikh
Abdullah, who had by then been appointed Prime Minister of J&K by the
Maharaja and Nehru, who kept the Kashmir portfolio with himself and kept Sardar
Patel, the home minister, away from his legitimate function. Hence Nehru is
answerable to all acts of commission and omission, consequences of which we are
suffering till date as far as J&K is concerned.
“Why should a state of the Indian Union have a special
status? It conveys a wrong signal not only to Kashmiris but also to the
separatists, Pakistan and indeed the international community that J&K is
still to become integral part of India, the sooner Article 370 is done away is
better.”
While it was Mountbatten who persuaded Nehru to take the
J&K issue to the UN, it was Sheikh Abdullah, who, driven by his ambition to
be ruler of an independent Kashmir and his hatred for the Maharaja, persuaded
Nehru to give special status to J&K. Among his reasons were – occupation of
one third of J&K by Pakistan, reference to the UN and plebiscite. The most
sinister aspect of proposed Article 370 was the provision that any changes could
be brought about in it only by the concurrence of J&K assembly. Nehru’s
promise that Article 370 was a temporary provision and will get eroded over a
period of time has turned out to be a chimera. The first thing that Sheikh
Abdullah got done was to abolish hereditary monarchy and redesignate him as
Sadar-e-Riyasat who was to be elected by the Assembly. The accession of J&K
State into Indian Union was approved by J&K Assembly only in 1956.
Dramatis Personal
Jawahar Lal Nehru The handsome Harrow educated aristocrat
who gave up a life of luxury to join the freedom movement. Babu’s choose heir
and darling of the masses, he had a fatal flaw. He cared for personalities
rather than issues and institutions, be it selection of Lord Mountbatten as the
first Governor General of free India, retaining a senior British officer as the
Commander-in-Chief of India Army or backing Sheikh Abdullah to the hilt – his
choices were unfortunate. Finally the Chinese aggression of 1962 shattered his
image of a world statesman.
Sardar Patel The Iron Man of India — silent, strong and
pragmatic with a complete hold on congress party organization — rightly
credited with creating a unified India by integrating 565 princely states in it
— he would have included Kashmir also in it if allowed to do so by Nehru. The
only blot on him was the insinuation that he failed to protect his beloved
Bapu. The slur only hastened his end in Dec 1950.
Nehrus promise that Article 370 was a temporary provision
and will get eroded over a period of time has turned out to be a chimera.
Sheikh Mohammed Abdullah Charismatic Kashmiri leader who
never let go of his dream of ruling an independent Kashmir even while
masquerading as a secularist — architect of Article 370 along with Nehru. He
must share with Nehru the grave consequences. Lion of Kashmir brought Nehru
under his spell from 1938 onwards to the extent that in May 1947 when he was
arrested by the Maharaja for sedition, Nehru represented Sheikh as his lawyer
and was even arrested in Jun 1947 by the Maharaja while trying to enter
J&K. Finally Nehru had to eat the humble pie by arresting Sheikh Abdullah
for sedition on 9 Aug 1953.
Maharaja Hari Singh The Maharaja saw an opportunity at the
end of British Raj to keep Kashmir as the Switzerland of the East. Trying to
repeat history when his ancestors – Maharaja Gulab Singh and Ranbir Singh
gained handsome dividends by keeping aloof during the Sikh War and Great
Mutiny, Hari Singh tried to sign a standstill Agreement with India and Pak at
the time of independence, Pakistan signed, India declined. Maharaja died a
lonely man, forced to abdicate and exiled from his beloved land.
The Drama Unfolds
Having finalized the text of Article 370 with Sheikh
Abdullah, Nehru brought in Gopalaswamy Ayyangar, IAS, as a minister without
portfolio to help him deal with Kashmir portfolio and plead the case of Article
370 in the Constituent Assembly. Gopalaswamy Ayyangar had been prime minister
of Kashmir for six years with Maharaja Hari Singh. When Sardar Patel expressed
his misgivings, this is what Nehru had to say on Dec 27, 1947.
“Gopalaswamy Ayyangar has been especially asked to help in
Kashmir matters. Both for this reason and because of his intimate knowledge and
experience of Kashmir, he had to be given full latitude. I really do not know
where the States Ministry (Sardar Patel’s ministry) comes into the picture
except that it should be kept informed for the steps taken. All this was done
at my instance and I do not propose to abdicate my functions in regard to
matters for which I consider myself responsible. May I say that the manner of
approach to Gopalaswamy was hardly in keeping with the courtesy due to a
colleague.”
It speaks volumes of Patels loyalty to a colleague that
despite his own and others misgivings, he managed to convince the members of
Constituent Assembly and Congress Party Executive. But to V Shankar he said
“Jawaharlal Royega”.
The Sardar thereupon resigned and the matter fell in
Gandhiji’s lap to bring the two colleagues together. During this period, V
Shankar, IAS was the personal secretary to Patel and had maintained a record of
all events. It is clear from these records that Nehru finalized the draft of
Article 370 alongwith Sheikh Abdullah without even informing Patel. Thereafter
it fell to Gopalaswamy Ayyangar to get the draft passed in the Constituent
Assembly discussions. The proposal was torn to pieces by the Constituent
Assembly and also Congress Party Executive.
Nehru, who was abroad at the time, swallowed his pride and
rang up Patel and requested him to get the Article 370 approved It speaks
volumes of Patel’s loyalty to a colleague that despite his own and others
misgivings, he managed to convince the members of Constituent Assembly and
Congress Party Executive. But to V Shankar he said “Jawaharlal Royega”. V
Shankar, in his record has described the meeting of the Congress Executive
Committee “The meeting was one of the stormiest I have ever witnessed barring
the party meeting which discussed the proposition relating to Rajaji becoming
the first President of Indian Republic. The opinion in opposition to
Gopalaswamy’s formula was forcefully and even militantly expressed and the
issue even brought in the sovereignty of the Constituent Assembly to draw up
the Constitution without being tied down to the apron-strings of the Kashmir
State Constituent Assembly. In such a situation even Maulana Azad was shouted
down.
The Party was in uproar. The Sardar had to plead that
because of the international complications, a provisional approach alone could
be made leaving the question of final relationship to be worked out according
to the exigencies of the situation and mutual feelings and confidence that
would have been by then created. Once the Sardar had taken charge, all
opposition to the draft was silenced” And how Nehru responded to this great act
of loyalty on part of Sardar? On 24 July 1952, after Sardar was no more, Nehru
made a detailed statement on Kashmir in the Parliament on slow integration of
Kashmir into India Union and mentioned that “Sardar Patel was all the time
dealing with these matters.” Even Gopalaswami Ayyangar was dismayed at this
blatant lie and mentioned to V Shankar “It is an ill return to the Sardar for
the magnanimity he had shown in accepting Panditji’s point of view against his
better judgment.”
0 comments: