ACCORD & DISCORD
| If the offer to entrench Article 370 was unacceptable to the people of Kashmir in 1953, it has lost all worth and relevance in 2010. |
Prime Minister Indira Gandhi paying homage to Sheikh Mohammed Abdullah in Srinagar on September 10, 1982. February 2010 was the 35th anniversary of the Indira Gandhi-Sheikh Abdullah Accord on severely curtailed autonomy for Kashmir.
“THIS arrangement [under Article 370] has not been arrived at now but as early as 1949 when you happened to be a part of the government,” Sheikh Abdullah reminded Shyama Prasad Mookerjee on February 4, 1953. He added in another letter of February 18: “May I point out that the special position that our State enjoys at present has been the result of the farsightedness and statesmanship of the late Sardar [Patel]. He was in fact instrumental in evolving the present basis of the State’s relationship with the Union. Article 370 was incorporated into the Constitution under his guidance and at that time Shri Nehru was away from India.” Nehru was in the United States.
Mookerjee had neither the courage nor the integrity to resign from the Union Cabinet when it sponsored the draft Article 370 of the Constitution (Article 306-A) in the Constituent Assembly and secured its adoption on October 17, 1949. Unlike the other provisions of the Constitution, Article 370 was a product of negotiations between the Union and the Kashmir government headed by the Sheikh. They had begun at Sardar Patel’s residence in New Delhi as far back as on May 15 and 16, 1949. Kashmir is the only State in the Union to have negotiated the terms of its membership of the Union (vide the writer’s article, Frontline, September 29, 2000; reprinted in the compilation Constitutional Questions and Citizens’ Rights; Oxford University Press; pages 371-384).
Professor Bruce Graham has explained when, how and why Mookerjee performed a somersault and began attacking Article 370. Having resigned from the Union Cabinet in 1950, he set up the Jan Sangh on October 21, 1951, under a pact with the Rashtriya Swayamsewak Sangh (RSS) boss, M.S. Golwalkar, and was in search of emotive issues. The Sangh’s first session, held in Kanpur on December 31, 1952, took up the issue (Hindu Nationalism and Indian Politics; Cambridge University Press; page 38).
Meanwhile, on November 14, 1952, the State’s Constituent Assembly ended hereditary rule – as had all other States under the Indian Constitution – and elected Karan Singh Sadar-i-Riyasat (head of state). The Jan Sangh’s Jammu ally, the Praja Parishad, launched an agitation against this. Mookerjee joined the fray in 1953 and came out in his, and the Sangh Parivar’s, true colours. In a letter to Sheikh Saheb on February 13, 1953, he lamented: “The Dogras were the rulers of the State for generations and the position has suddenly been reversed when you came into [sic] power.” The Dogra chieftain acquired Kashmir in 1846 by betraying his masters, the Sikh rulers in Lahore, to the British to whom he paid Rs.75 lakh under the infamous Treaty of Amritsar of March 16, 1846. Mahatma Gandhi called it a “sale deed” during his visit to Kashmir in August 1947 (D.G. Tendulkar, Mahatma; Volume 8; page 79). It formed the subject of the poet Hafiz Jullundari’s famous poem: “Loot li insaan ki qismat pachattar lakh mein/ Bik gayee Kashmir ki jannat pachattar lakh mein” (The fate of human beings was sold for Rs.75 lakh/ Kashmir’s paradise was sold for Rs.75 lakh).
One wonders whether Mookerjee and his followers would have applied the same logic to the Nizam of Hyderabad. The Nizam had a Hindu prime minister and Hindu Ministers, too. The Dogras’ repression of Muslims is ably documented in two works of solid scholarship, the Kashmiri scholar Chitralekha Zutshi’s Languages of Belonging: Islam, Regional Identity, and the Making of Kashmir and Mridu Rai’s Hindu Rulers, Muslim Subjects: Islam, Rights, and the History of Kashmir (both published by Permanent Black).
Repeat of farce
Advani knows that (a) Kashmiris will not be satisfied with anything short of self-rule within the Union; (b) there can be no peace in South Asia without a settlement of Kashmir with Pakistan; and (c) such a settlement is possible and will raise India’s prestige in the world. The BJP wants a confrontation with the people of Kashmir.
On March 14, 2004, during the election campaign, Advani, then Deputy Prime Minister, wantonly communalised the issue: “The BJP alone can find a solution to our problems with Pakistan because Hindus will never think whatever we have done is a sell-out.”
He did not expect defeat in the elections. When the United Progressive Alliance (UPA) came to power, the BJP did not reciprocate the restraint the Congress had shown during all its zigzags when the BJP was in power during 1998-2004. Instead, it pursued a two-pronged strategy. At home, the refrain of “sell-out” was kept up. Pakistan was asked not to settle with the UPA government. In New Delhi on February 20, 2007, Advani advised Pakistan Foreign Minister Khurshid Mehmood Kasuri against “any haste” in the peace process. Atal Bihari Vajpayee repeated the line the next day. Sotto voce Kasuri was told, “wait till we return to power”, implying “you will get better terms from us”.
The Opposition never censured the BJP regime for the zigzags in its policies – parleying with the Hizbul Mujahideen in August 2000 after its ceasefire on July 24; inviting Pervez Musharraf for a summit in July 2001, which it wrecked wantonly; launching Operation Parakram on December 18, 2001, and calling it off on October 16, 2002, all at a cost of Rs.8,000 crore; and complying with the Colin Powell-Jack Straw road map of March 27, 2003, to attend the Islamabad summit in January 2004. The BJP’s sights were set on U.S. support.
Strobe Talbott’s memoirs Engaging India record Jaswant Singh’s secret concession on Kashmir – its partition. On three occasions, he offered to settle the dispute on the basis of the Line of Control (LoC). One was on July 9-10, 1998, at Frankfurt Airport. “He mentioned that his government might consider converting the Line of Control, which was based on the 1949 ceasefire line between the Pakistani and Indian portions of the territory, into an international boundary” (page 94).
The other occasion was at the State Department in August 1998. And yet once more later. The motive was obvious – enlist American support to pressure Pakistan to accept what it had been rejecting since 1948.
February 2010 was the 35th anniversary of the Indira Gandhi-Sheikh Abdullah Accord on severely curtailed autonomy for Kashmir, in breach of Article 370 as well as the Delhi Agreement of 1952. It is necessary to assess its worth or the lack of it today. Article 370 was flouted, admittedly. Prime Minister Jawaharlal Nehru freely admitted it in Parliament on November 27, 1963: “It [Article 370] has been eroded, if I may use the word, and many things have been done in the last few years which have made the relationship of Kashmir with the Union of India very close.… We feel that this process of gradual erosion of Article 370 is going on.” The metaphor was deceptive. Article 370 was not something that time would “erode”. It was a constitutional provision that could be undermined only by violating its terms and abusing the powers it gave.
Special Provisions
Second, Parliament’s legislative power over the State was restricted to three subjects – defence, external affairs and communications. The President could extend to it other provisions of the Constitution to provide a constitutional framework if they related to the matters specified in the Instrument of Accession. For this, only “consultation” with the State government was required since the State had already accepted them by the Instrument. Third, if other constitutional provisions or other Union powers were to be extended to Kashmir, the prior “concurrence” of the State government was required.
But, the fourth feature is that the concurrence was provisional. It had to be ratified by the State’s Constituent Assembly. Article 370 (2) says clearly: “If the concurrence of the government of the State be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.” It was an “interim” provision, admittedly.
The fifth feature is that the State government’s authority to give the “concurrence” lasts only until the State’s Constituent Assembly is “convened”. Once the Constituent Assembly met, the State government could not give its own “concurrence”, still less, after the Assembly met and dispersed. The President cannot exercise his/her power to extend the Indian Constitution to Jammu and Kashmir indefinitely. His/her power stops at the point the State’s Constituent Assembly drafts the State’s Constitution and decides finally what additional subjects to confer on the Union and what other provisions of the Constitution of India should get extended to the State. Once the State’s Constituent Assembly has finalised the scheme and dispersed, the President’s extending powers end completely.
The sixth special feature, the last step in the process, is that Article 370 (3) empowers the President to make an order abrogating or amending it. But for this also “the recommendation” of the State’s Constituent Assembly “shall be necessary before the President issues such a notification”.
An open session of the All Jammu and Kashmir National Conference was held in Srinagar on September 24, 1949. Jawaharlal Nehru, the Sheikh, Sardar Baldev Singh, N.V. Gadgil and other members are seated on the dais.
The BJP must remember that Article 370 cannot be abrogated or amended by recourse to the amending provisions of the Constitution, which apply to the other States. Article 368 has a proviso that says that no constitutional amendment “shall have effect in relation to the State of Jammu and Kashmir” unless applied by order of the President under Article 370. That requires the concurrence of the State’s government and ratification by its Constituent Assembly.
Jammu and Kashmir is mentioned among the States of the Union in the First Schedule as Article 1 (2) requires. But Article 370 (1) (c) says, “The provision of Article 1 and of this Article shall apply in relation to that State.” Article 1 is thus applied to the State through Article 370. What would be the effect of its abrogation, as the BJP demands?
When Kashmir’s Constituent Assembly was “convened” on November 5, 1951, the State government lost forever its “interim” power to accord its concurrence. When it dispersed on November 17, 1956, after adopting the State’s Constitution, there vanished the only authority that could cede more powers to the Centre or extend any Central institutions to the State.
Meanwhile, in July 1952, Nehru and Abdullah arrived at the Delhi Agreement to extend certain Central institutions to Kashmir. The agreement was given legal effect by the President’s order under Article 370 on May 14, 1954.
First came the Centre’s attack on the head of state. On June 12, 1952, Kashmir’s Constituent Assembly accepted the recommendation of its Basic Principles Committee, headed by Mirza Mohammad Afzal Beg, that “the office of the head of state shall be elective”. On July 20, 1952, in New Delhi, Nehru and four Cabinet colleagues met Kashmir’s delegation, headed by Premier Sheikh Abdullah. After a week of parleys, the Sheikh had to accept a change that made a mockery of the Assembly’s decision. It was agreed that “the head of State shall be a person recognised by the President on the recommendation of the legislature of the State”. Worse, he could be sacked any time, without cause, by the Centre – “he shall hold office during the pleasure of the President”, that is, the Government of India.
Article 310 (22) of India’s Constitution defined “ruler” inter alia as one “who for the time being is recognised by the President as the ruler of the State”. It was outrageous to apply a rule governing hereditary princes to a head of state elected by its Assembly. Nehru explained the Delhi Agreement in Lok Sabha on July 24: “They recommend and then it is for the President to recognise.” He has the veto.
Jammu and Kashmir’s Constituent Assembly amended the old Constitution to abolish monarchy from November 17, 1952. On August 9, 1953, Sheikh Abdullah, co-author of the Delhi Agreement, was sacked as premier and put in jail for nearly 11 years. Article 27 of the Constitution, enacted by the rump Assembly in his absence in 1956, toed Delhi’s line perfectly. “The Sadar-i-Riyasat shall be the person who for the time being is recognised by the President.” Only a proviso provided for his election. But Article 28 said that he shall hold office “during the pleasure of the President”, that is, the Indian government. Jammu and Kashmir’s Constitution 6th Amendment Act, 1965, discarded this joke and provided for appointment of the State’s Governor by the President. On July 23, 1975, by a mere executive order under Article 370, the Constitution of India was amended to bar Jammu and Kashmir’s Assembly from legislating on the Governor’s appointment. The Delhi Agreement was wrecked twice over.
Eroded and wrecked
It was circumstances such as these that led to the accord in February 1975, which helped Sheikh Abdullah’s installation as Chief Minister in a Congress (I)-dominated Assembly. The accord is embodied in documents more than one and covers issues of complexity.
At the outset, on August 23, 1974, Sheikh Abdullah wrote to G. Parthasarathi, Indira Gandhi’s emissary, to make it plain that he could assume office “only on the basis of the position as it existed on 8th August, 1953”. On the changes since, “the newly elected Assembly” will pronounce “judgment”. He speedily abandoned this stand.
“Agreed Conclusions” were signed by Beg and Parthasarathi on November 13, 1974. Article 370 would govern Union-Kashmir relations – but as eroded. Provisions of the Indian Constitution which were extended to the State with modifications can be repealed. Each proposal to that effect would be considered “on its merits”, that is, the Centre would decide. “But provisions of the Constitution of India already applied to the State without adaptation or modification are unalterable,” the accord laid down.
On specified topics in the Concurrent List (welfare measures, personal law, and so on), the State could review post-1953 Central laws but again subject to the Centre’s consent. In future also the same rule would apply. In plain words, Central powers, increased since 1953, would not be diminished. Further, the President’s assent would be required for any State laws concerning the Governor or matters relating to elections. “No agreement was possible on the question of nomenclature of the Governor and the Chief Minister and the matter is therefore remitted to the principals.”
Certain topics were reserved for discussion in future consultation before the Governor’s appointment and further extension of the scheme of all-India services.
Beg’s proposals on fundamental rights in the State Constitution, the Election Commission and Article 356 on President’s Rule were rejected by Parthasarathi, who cautioned, in his letter of November 13, 1974, that “these facts should not be made public without Prime Minister’s Consent”. It was not published on February 24, 1975, along with the other letters. But Prime Minister Indira Gandhi made public her rejection of his stand in Parliament that day.
On November 25, 1974, Sheikh Saheb wrote to the Prime Minister proposing talks on unsettled topics. She replied, on December 6, saying that the “basic issues” were already discussed. “I doubt whether anything will be gained by our discussing these matters again.” Only topics “reserved for our consideration should be taken up”. The “basic features” of the State’s Constitution, drafted while the Sheikh was in prison, should not be altered.
This drew a long and bitter letter from the Sheikh on December 29 recording in detail the “betrayal and sufferings and tribulations that we had to undergo for years on.… I can only start from the point where I left off in August 1953.” If the basic issues were not to be discussed, no “useful purpose would be served on prolonging our discussions”, a brave stand from which he resiled, once again.
The two met at Pahalgam for talks. The upshot was an exchange of letters embodying their accord, Sheikh Abdullah’s of February 11, 1975, and Indira Gandhi’s of the next day. He accepted the Agreed Conclusions, signed by Beg and Parthasarathi, while maintaining his stand on the 1953 status. The accord put a seal on the erosion of Article 370 and the destruction of Kashmir’s autonomy.
Gross error
Crowds greeting Sheikh Abdullah when he was freed in 1975 after prolonged incarceration.
It was, I can reveal, based on gross error. The Agreed Conclusions said (Paragraph 3): “But provisions of the Constitution already applied to the State of J&K without adaptation or modification are unalterable.” This preposterous assertion was made in the teeth of a Supreme Court ruling. One order can always be rescinded by another. All the orders since 1954 can be revoked; they are a nullity anyway. Beg was precariously ill and relied on advice that Parthasarathi’s “expert” had given him. He was one S. Balakrishnan, whom R. Venkataraman refers to as “Constitutional Adviser in the Home Ministry” in his memoirs. Issues of such complexity and consequence are for counsel’s opinion, not from a solicitor, still less a bureaucrat even if he had read the law. Even the Law Secretary would have insisted on the Attorney-General’s opinion. Amazed at what Beg had told me in May 1976, I pursued the matter for over a decade and eventually met Balakrishnan in 1987 in the Ministry. He confirmed that he had, indeed, given such advice.
It was palpably wrong. The Supreme Court rejected this very argument on October 10, 1968, in Sampat Prakash vs the State of Jammu & Kashmir (AIR 1970 Supreme Court 1118). It said: “Article 367 of the Constitution lays down that, unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.… Section 21 of the General Clauses Act, is as follows: ‘Whereby any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.’ There was clearly the possibility that, when applying a particular provision, the situation might demand an exception or modification of the provision applied; but subsequent changes in the situation might justify the rescinding of those modifications or exceptions.” Orders under Article 370 can be revoked, cancelled or rescinded.
The court amplified: “We have already held that the power to modify in Clause (d) also includes the power to subsequently vary, alter, add to or rescind such an order by reason of the applicability of the rule of interpretation laid down in Section 21 of the General Clauses Act.”
However, on the major issue of power to make orders after 1956, the ruling is palpably wrong. It flouted the court’s own earlier ruling to the contrary. In Prem Nath Kaul vs State of J&K, decided in 1959, a Constitution Bench consisting of five judges unanimously held that Article 370 (2) “shows that the Constitution-makers attached great importance to the final decision of the Constituent Assembly and the continuance of the exercise of powers conferred on the Parliament and the President by the relevant temporary provisions of Article 370 (1) is made conditional on the final approval by the said Constituent Assembly in the said matters”.
It referred to Clause (3) and said that “the proviso to Clause (3) also emphasises the importance which was attached to the final decision of Constituent Assembly of Kashmir in regard to the relevant matters covered by Article 370”. The court ruled that “the Constituent-makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself”.
But, in 1968, in Sampat Prakash, another Bench ruled to the contrary without even referring to the 1959 case. Justice M. Hidayatullah sat on both Benches. The court held that Article 370 could be used to make orders there under despite the fact that the State’s Constituent Assembly had ceased to exist.
Basic flaws
Secondly, it brushed aside Article 370 (2), which lays down this condition, and said that it spoke of “concurrence given by the government of State” before the Constituent Assembly was convened and made no mention at all of the completion of its work or its dissolution.
The supreme power of the State’s Constituent Assembly to ratify any change, or refuse to do so, was clearly indicated. Clause (3) on the cessation of Article 370 makes it clearer still. But the court picked on this clause to hold that since the Assembly had made no recommendation that Article 370 be abrogated, it should continue. It, surely, does not follow that after that body dispersed, the Union acquired the power to amass powers by invoking Article 370 when the decisive ratifying body was gone.
Thirdly, the Supreme Court totally overlooked the fact that on its interpretation, Article 370 could be abused by collusive State and Central governments to override the State’s Constitution and reduce its guarantee of autonomy to a naught. Lastly, the court misconstrued the State Constituent Assembly’s recommendation of November 17, 1952, which merely defined in an explanation “the government of the State”. To the court this meant that the Assembly had “expressed its agreement to the continued operation of this Article by making a recommendation that it should be operative with this modification only”. It had made no such recommendation. The explanation said no more than that “for the purposes of this Article, the government of the State means….” It does not, and indeed, cannot remove the limitations on the Central government’s power of concurrence imposed by Clause (2), namely, ratification by the Constituent Assembly.
The court laid down no limit whatever whether as regards the time or the content. The net result of this ruling was to give the government of India a carte blanche to extend to Jammu and Kashmir such of the provisions of the Constitution of India as it pleased. The court’s ruling on this major issue was as incontrovertibly right as its ruling on the power to “modify”. The error can be corrected in the final settlement embodied in a final order under Article 370. The ruling on “modification” can be pressed into service by extending all orders since 1950. In the 1990s, Saifuddin Soz, then in the National Conference, submitted a memo to Prime Minister P.V. Narasimha Rao on November 4, 1995, reminding him that Article 370 was not a “one-way stream”. It could be used to increase Kashmiri’s autonomy as well (Asian Age, November 6, 1995). This document is highly relevant in 2010.
A solemn accord, based on gross error and in sheer ignorance of a judgment of the Supreme Court, is void. It has no force, morally and legally.
Only a person like Ghulam Nabi Azad could cite the 1975 accord as one that settles the issue of autonomy and only a Saghir Ahmed could recite it blithely. All three accords are a total wreck – the one embodied in Article 370, the Delhi Agreement of 1952 and the February 1975 accord, which sought to put a seal on the “erosion” of Article 370. It was a political accord, which provided, as Sheikh Abdullah said, “a good basis for my cooperation at the political level”. It was a “new political understanding”, Indira Gandhi told Parliament on March 3, 1975. Under it, the Sheikh was made Chief Minister on February 24 with Congress support. He had no support in the Assembly. The political accord collapsed in March 1977 after Indira Gandhi lost the Lok Sabha elections. The Congress staked a claim to form its own government. The accord collapsed, as it was based on a gross error in law.
On February 24, 1975, Indira Gandhi made a statement in Parliament on the accord. On March 3, she initiated a debate on it in the Lok Sabha and noted the hostility it had aroused in two quarters: Pakistan, which felt it had been left high and dry, and the BJP’s ancestor, the Jan Sangh, which, true to form called it “a surrender”. Indira Gandhi went on to say: “Hon. Members might have read that there were two explosions in Srinagar, one on the 24th and another on Saturday night. These are pitiful demonstrations of the frustration of anti-national elements, a confession of their failure. Fortunately, they did not cause much damage. Such acts will not affect the morale of the people of Kashmir and of India. On the contrary they will arouse indignation. I warn wrongdoers that they will be sternly dealt with.”
So, they were, by the Sheikh’s government. But resentment continued to simmer as it had since the accession in 1947 (vide the writer’s article, Frontline, October 13, 2000). A rigged election in 1986 ignited militancy in all its fury, which continues even today. A restive, aggrieved populace responds to any provocation, as recent years demonstrate. It will continue to do so unless and until the root causes of the alienation are addressed and removed.
Tension in Srinagar was palpable in 1974 as reports of the parleys came in. The rift led to the birth of the Jammu and Kashmir People’s League on October 13, 1974, with Fazal Haq Qureshi as its chairman.
The People’s League marked a watershed. Its founders shot into prominence later – Sheikh Abdul Aziz; Musaddiq Adil; Bashir Ahmed Tota; Azam Inquilabi; Abdul Hamid Wani (alias S. Hamid), who was president of the Young Men’s League; and Shabbir Shah, its general-secretary. The last two were arrested on October 3, 1974. The League was stoutly opposed to the 1975 accord.
The Sheikh, and New Delhi also, had acquired an opposition force they could not suppress in the new clime of the 1970s as they had done in the 1950s. But the League was star-crossed, with multiple splits and mergers. Azam Inquilabi left it soon after to set up his Islamic Students and Youth Organisation, later renamed the Islamic Jamiatul Tulaba, under the leadership of Tajammul Islam, a student wing of the Jamaat-e-Islami.
A former close associate of the Sheikh, Sufi Muhammed Akbar, parted company with him over the accord and attracted some support. Sheikh Abdullah held sway. None had his commanding personality, resources or muscle.
We face a new situation today, which the Sheikh perceptively described in a historic letter to Maulana Azad on July 16, 1953: “I am very happy to hear from you that the Government of India is willing to declare that the special position given to Kashmir will be made permanent and that the Government of India will be bound by it without any conditions. If such a declaration had been made at an appropriate time, it would undoubtedly have strengthened our hands and unified various organisations and public opinion in the State and even if the masses had been asked about accession, a majority of them would have come out in favour of India…. Although such a declaration would be welcome, it remains to be seen if it would draw the support of different sections of people in India and parties in Kashmir. You would appreciate that without such support, this declaration would not suffice to dispel the fears that have arisen in the minds of the people of Kashmir.”
If the offer to entrench Article 370 was unacceptable to the people in 1953, in 2010 it has lost all worth and relevance by its abuse and “erosion”. A new constitutional settlement is called for, which will restore it to its efficacy and, by finally guaranteeing self-rule, render it permanent. For this, an all-party consensus in Kashmir is indispensable.
This will require sincerity and a determination by New Delhi to right the wrongs in the New Delhi Agreement. Now any accord must provide (a) an elected head of state; (b) agreed substantial autonomy; and (c) guarantees against abuse. It can form part of an India-Pakistan accord, which gives the hapless people of west Kashmir the same rights which their brothers in east Kashmir will enjoy under the new accord. To begin with, both sides must drop the pejorative “occupied”.
EDITED BY :ASHOK KOUL
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