Indian Constitution and Kashmir

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By ASHIQ HUSSAIN BHAT : –

The present Indian Constitution describes Kashmir State (including its Pakistan administered areas) as Indian territory (Article 1 Schedule I). The Constituent Assembly of post-partition India passed this Constitution on 26 November 1949. However, it became effective on 26 January 1950. January 26 was a day of historical significance for ruling Congress Party because on this day 1930 they had celebrated “Complete-Independence-Day” by pledging themselves to the goal of complete independence of British India and to the Civil Disobedience Movement which their leader M.K. Gandhi intended to launch in coming months against British Rule – he eventually started his new Movement on 12 March 1930 by embarking upon Salt March from Sabarmati Ashram. Prior to 26 January 1950 the Constitution of the Dominion of India (and also of the Dominion of Pakistan) was based on Government of India Act 1935 (passed by British Parliament in London).

The Dominion of India (and the Dominion of Pakistan) had succeeded British India on 15 August 1947. Post-15 August Constitutions of both the Dominions continued to be based on Government of India Act 1935. On 15 August 1947, the Princely States of Kashmir and Hyderabad became independent; other Princely States became either part of India or that of Pakistan by executing Instruments of Accession as laid down under the provisions of Government of India Act 1935, Cabinet Mission States Memorandum of 1946; and the Indian Independence Act 1947.

The Princely State of Kashmir was governed under the dispensation of Jammu and Kashmir Constitution Act 1939. This Constitution dealt with residuary subjects leaving the Central subjects (Defence and Foreign and Communications) to the British Paramount Government of India. Section 5 of that Constitution declared that “all powers, legislative, executive, and judicial, in relation to the State and its Government are hereby declared to be and to have always been inherent in and possessed and retained by His Highness.” With the coming into effect of present Indian Constitution on 26 January 1950 the Indian Dominion and the Government of India Act ceased to exist (although across the Radcliffe Line Pakistan continued to be a Dominion governed under 1935 Constitutional Act).

The present Indian Constitution described India as a Republic and a Union of States. It classified the States of the Union into four parts: A, B, C, D. Part B States included the former Princely States including among others Hyderabad which had been annexed, through police action, in September 1948; Junagarh, which had acceded to Pakistan; and Kashmir, which was matter of international dispute between India and Pakistan to be resolved through a UN sponsored Plebiscite.

Up till 26 January 1950 the relation between Princely States and the Dominion of India rested on the provisions of Instruments of Accession. Through these Instruments they had ceded authority to the Dominion Legislature of post-Partition India on the central subjects of Defence, Foreign, and Communications. They were autonomous with regard of residuary subjects but now their autonomy was wound up and they were fully integrated into the Indian Union. The only exception to this new dispensation was Kashmir which was allowed to continue as an autonomous State to be governed under its own Constitution of 1939, which anyway dealt with residuary subjects only. The reason for according “special” treatment to Kashmir was that the Indian State did not think the time was ripe to integrate it fully because it was a matter of international dispute. The international community recognized the accession of Kashmir to India as a temporary affair. The Indian State had itself asked the United Nations in 1947-48 to intervene in Kashmir and to sponsor a Plebiscite there. Yet the Indian State avoided the conduct of that Plebiscite by not allowing Maharaja Hari Singh to appoint in 1949 a UN-nominated Plebiscite Administrator. The appointment of PA with full powers would have been the first step for Kashmir to slip through Indian State’s fingers.

In order to bypass UN, and Pakistan, the other party to Kashmir Question, and also to avoid Plebiscite in Kashmir, the Constituent Assembly of India, with active support of Sheikh Abdullah-led National Conference Party, changed the relationship between Kashmir and India from temporary Accession(which was subject to Plebiscite) to temporary Article 370 of this new Indian Constitution so that Kashmir could be absorbed into the Indian Union with the help of a provincial Constituent Assembly.

Article 370 did not in itself confer an autonomous status upon Kashmir. Kashmir was autonomous even during British times, Kashmir was autonomous even after it acceded to India on 27 October 1947; and in fact Kashmir was independent from 15 August to 27 October 1947. Article 370 was a device to erode that autonomy, albeit gradually, and with the concurrence of provincial Constituent Assembly, that was required to be convened under the new dispensation created by this Article of Indian Constitution.

Pakistan, suspecting foul play, complained to the Security Council of the UN against the convening of provincial Constituent Assembly for Kashmir. In response to this complaint the Security Council asked the Government of India for an explanation. Nehru-led Government of India assured the Security Council in writing that the proposed provincial Constituent Assembly would only settle internal matters of the State and leave the international issues unaffected. Security Council was not satisfied with this explanation. They therefore adopted a Resolution on 30 March 1951 that: “the convening of a Constituent Assembly as recommended by the General council of All-J&K National Conference and any action that Assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State “.

On 1 May 1951 Regent Karan Singh issued a Proclamation that a Constituent Assembly would be convened in Kashmir in September.Sheikh Abdullah-led National Conference Government of Kashmir divided the entire State into 100 Assembly segments, 75 for 60% territory of the State administered by India and only 25 for the 40% territory and 33% population of the territory of the State administered by Pakistan. Also they allowed no one to contest against them, not even the Praja Parishad people who had filed nominations for 27 out of 30 segments of the Jammu division. In fact it was a no-election drama enacted, with Prime Minister Nehru’s blessings, to convert the General Council of National Conference into a provincial Constituent Assembly. Even then the Kashmir Constituent Assembly that came into existence after this “election” was, judged by their own standards; incomplete because the people of Pakistan administered Kashmir did not return any Members to it.

Things however did not move smoothly as Prime Minister Nehru had expected. Within a year’s time the Kashmir Constituent Assembly had second thoughts against New Delhi’s policy of gradual assimilation as spelt out under Article 370. Its leader, Sheikh Abdullah, became furious when Gopalaswami Ayyengar suggested in April 1952 to extend jurisdiction of Comptroller and Auditor General and the Supreme Court of India  to Kashmir. He read these suggestions as an attempt to encroach upon his authority. Now onwards, he embarked upon open confrontation with New Delhi. Under his directions the Kashmir Constituent Assembly resolved on 7 June 1952 to have a separate flag for Kashmir State. Also they resolved on 12 June 1952 to abolish dynastic rule by replacing the Regent with an elective Head of the State to be designated Sadri-Riyasat(President of the State) who should be not less than 25 years of age. On this the Dogras of Jammu got furious. They demanded complete merger of Kashmir with India. They vehemently opposed the notion of having two constitutions, two flags, two presidents in one country India. The upshot of this confrontation between Dogras of Jammu led by Praja Parishad Party and Kashmir Constituent Assembly on the one hand and between this Assembly and New Delhi on the other, was that Regent Karan Singh, age 21, came to be appointed as Sadri-Riyasat for five years and Sheikh Abdullah along with supporters ended up in jail. Yet Kashmir got an institution of President(abolished 1965), a flag and a constitution in the making.

On 17 November 1956 the provincial Constituent Assembly passed a Constitution for Kashmir describing the former Princely State including its Pakistani administered parts as Indian Territory(Section 3). This new Constitution,  which likewise dealt only with residuary subjects, replaced Maharaja Hari Singh’s personal Constitution of 1939. Because UN had passed Resolutions against the actions of the provincial Constituent Assembly in response to Pakistani complaints; and becasue Sheikh Abdullah had raised the standard of revolt, the provincial Constituent Assembly hesitated to completely merge Kashmir into the Indian Union. They left the job to be completed by their successors, the provincial Legislative Assembly. The provincial Legislative Assembly almost completed the task in 1964. The only thing that now remains to do is the abrogation of Article 370 itself. Although Article 370 had actually been a device to erode autonomy of Kashmir yet it has now assumed significance for Kashmiris. It has now become a symbol that Kashmir is not part of Indian Union at par with other States, but a State apart that has a separate Constitution(no matter howsoever subaltern), a separate flag, etc.

But questions remain: Should this Article be abrogated? What should be the procedure of abrogation? Should the process of abrogation start with a recommendation to that effect by the provincial Constituent Assembly of Kashmir to the President of India as laid down in the Article itself? But then the provincial Constituent Assembly does not exist anymore. Would the recommendation of provincial Legislative Assembly do the job? If the provincial Legislative Assembly (which is again an incomplete body like its predecessor) recommends abrogation of Article 370 to the President of India and the latter accepts it, would the relation between Kashmir and Indian Union revert to the provisions of Instrument of Accession of 1947? Or would Kashmir become a part of India on a par with other States of the Union? In that case, what would be the status of Pakistan administered Kashmir including that of Gilgit and Baltistan in the Indian Constitution.

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