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The (Un)Making of Article 370

Article 370: A Constitutional History of Jammu and Kashmir by A G Noorani (New Delhi: OUP), 2011; pp xvi + 487, Rs 850.

The (Un)Making of Article 370

Rakesh Ankit

A
G Noorani’s book is a collection of documents on Article 370, which contains “temporary provisions” in the Indian Constitution with respect to the state of Jammu and Kash

book review

Article 370: A ConstitutionalHistoryofJammu and Kashmir by A G Noorani (New Delhi: OUP), 2011;

pp xvi + 487, Rs 850.

mir. It documents the five-month long negotiations which preceded the enactment of Article 370 on 17 October 1949 and, thereafter, traces the constitutional evolution of the state of Jammu and Kashmir and its relationship with the Union of India, bringing the story to present day. The collection, as Noorani clarifies in his introduction, is confined to the internal Indian aspects of the Kashmir question and does not engage with plebiscite and secession.

Noorani is a veteran constitutional lawyer and writer. His aim is to show the hollow reality of “the special status” of the state of Jammu and Kashmir and his method is to trace the steps by which Article 370 was “eroded” by “conscious executive acts” to the point where “only the shell” was left (pp 2-3). His hope is to “retrieve from the wreckage of Article 370, a constitutional settlement which satisfies the aspirations of the people of Jammu and Kashmir” (p 28). To that end, he makes his own contribution and presents a draft of the article as the last item in the book.

Noorani’s starting point is, as it has been for decades of writing on Partition and accession, the Cabinet Mission of 1946. Apart from the much dissected statement of 16 May 1946, Noorani also produces extracts from the Cabinet Mission’s Memorandum on Indian States, Treaties and Paramountcy, the Indian Independence Act of 1947, the Instrument of Accession of the state of Jammu and Kashmir to the Indian Dominion and correspondence, proclamations and white paper surrounding its circumstances and immediate aftermath (October 1947-June 1949). There is nothing new in the 10 documents of the first

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february 11, 2012

chapter which have been in the public domain for long and they really do no more than set the scene for the negotiations leading to the “framing of constitution” for the state and “the subjects in respect of which the state should accede to the Union of India” (p 4).

These negotiations took place over May-October 1949. Sheikh Abdullah, the prime minister of Kashmir, met Jawaharlal Nehru and Vallabhbhai Patel in the Indian capital in May, joined the Constituent Assembly of India along with his associate, in June and corresponded with N Gopalaswamy Ayyangar who, though minister for railways, was looking after the constitutional negotiations with Kashmir. An exchange between Ayyangar and Abdullah in October 1949 (pp 72-76) shows the differences between Patel and Abdullah on key matters relating to the power of Indian Parliament to make laws for Kashmir, application of the provisions of the Indian Constitution in relation to Kashmir in matters which directly are related to the three subjects of defence, foreign affairs and communications specified in the Instrument of Accession and, importantly, the appointment, status and continuation of the Abdullah ministry in Kashmir. This is an important reproduction as it shows how Ayyangar unilaterally amended the draft text of the article over Abdullah’s protests, gives Patel’s justification for this (p 77), paints Abdullah’s anguish and throws light on an event which would later have unfortunate and deep consequences.

A day before the Constituent Assembly of India adopted the Constitution of India on 26 November 1949, the ruler of

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Kashmir – Karan Singh – made a proclamation declaring that it “shall insofar as it is applicable to the state of Jammu and Kashmir, govern the constitutional relationships between this State and the contemplated Union of India” (p 8). On 26 January 1950, the day India became a republic, President Rajendra Prasad made his first order under Article 370, extending specific provisions of the new Indian Constitution to the state of Jam

mu and Kashmir.

Widening Divergence

In the next two years, 1950-52, as the state embarked upon convening its own Constituent Assembly to frame its own Constitution, the bone of contention emerged: Nehru was eager to secure Kashmir’s “closer integration” with India; Sheikh Abdullah was eager to preserve its autonomy; and it has remained thus till today in the day of Nehru’s greatgrandson and Abdullah’s grandson. Indeed, the high point of Noorani’s introduction is the straightforward way in which he shows the widening divergence of views between Abdullah and Nehru before and after their Delhi Agreement of July 1952. The documents in Chapters 3 and 4 pertaining to the work of the Jammu and Kashmir Constituent Assembly and Nehru-Abdullah correspondence leading to the Delhi Agreement bring to light a period and events which have seldom received comprehensive treatment. Nehru’s desire for “a unilateral finalisation of accession by the State’s Constituent Assem bly to the exclusion of Pakistan” was diametrically opposite to Abdullah’s attempt to seek “finality by an agreement on Kashmir between India and Pakistan”, spelt Abdullah’s “political suicide” (p 10) and, eventually, led to the “ruthless and unconstitutional” dismissal and later arrest of Abdullah on 9 August 1953, all catalogued in Chapters 5 and 6.

The next 20 years were a period of sordid governance in the state. Sheikh Abdullah spent 12 years in four different spells of arrest, detention and internment in this period. Jammu and Kashmir suffered successively under the corrupt

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Bakshi Ghulam Mohammad and the ineffective Ghulam Mohammad Sadiq and the Congressman Syed Mir Qasim, while putting together a Constitution and holding elections starting from 1957 which were farcical and rigged. Noorani brings together a mountain of material relating to the work of the Constituent Assembly in Srinagar (Chapter 7) and duly produces the Constitution of Jammu and Kashmir (Chapter 8). By now, however, the essence of Article 370 had been “wrecked” irrevocably by a seemingly irreversible process of “erosion” (Chapters 9-11) in which, apart from the central executive, the Indian judiciary also joined in as shown by the flawed judgments of four cases, cited by Noorani, which gave a carte blanche to New Delhi to do as it pleased in Jammu and Kashmir (pp 14-16).

Noorani is particularly severe, and justifiably so, on the 1975 “accord of political cooperation” between Indira Gandhi and Sheikh Abdullah. “Based on a fundamental error of law”, he calls it “worse than useless” and “harmful to Kashmir’s rights and interests” having “neither legal efficacy nor moral worth” (pp 17-18). One may add here the political consequences as well since the mounting disenchantment in the state with the gap between the ideals of India’s democracy and the reality of New Delhi’s relationship with Srinagar was to violently erupt in the late 1980s and provide the most serious challenge to India’s democratic and secular credentials throughout the 1990s.

Today, the constitutional irony is indeed total in the case of Jammu and Kashmir. Starting from “a special status” in 1947, it is now, Noorani shows, in “a status inferior” to that of the other states whether it is in relation to the centre’s powers to legislate on matters in the State List, pass executive orders towards president’s rule or command residuary power in relation to the state. The coveted office of Sadar-i- Riyasat (Head of State) was abolished in 1965, replaced by that of the governor who is appointed by the centre and the state assembly barred in 1975 from restoring the pre-1965 position.

Failure of the Indian State

The largely violent story of Kashmir in the last 20 years has been academically and journalistically best understood through the rise and fall of Srinagar’s ambitions – be it in demanding azadi or removing the Armed Forces Special Powers Act (AFSPA) – and the limitations (military and political) and strengths (economic and diplomatic) of the Indian state. Grievances – in particular electoral malpractices and human rights violations – have accumulated against an unwilling, unable or neglectful New Delhi. In the course of all the legal and military wrangling by the Indian government(s), the people of Kashmir have repeatedly sought to rise up.

Recent historiography has shown that the mobilisation and deinstitutionalisation

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february 11, 2012 vol xlviI no 6

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of Kashmiri politics, nature of federal autonomy in Kashmir and cries of ethno-national separatism point to a failure on the part of an Indian state, which has been absorbed in its secular psyche and security concerns, to harmonise and reconcile nation-building and democracy with the Kashmiri aspirations. There is a need to argue, not merely academically – as has been done

– but publicly and in policymaking circles, for decentralised state structures from redefined premises of democracy, sovereignty, legitimacy, citizenship and rights.

Kashmir today is locked externally in a fourfold scheme of regional rivalry, global intervention, religious identity and conflict resolution and internally within three levels of relationships: between Srinagar and New Delhi; between the politicians and the public within Kashmir; and interactions between its different population groups. Every significant event in the new century, be it the 2008 Amaranth agitation, the subsequent two summers of discontent, the 2010 initiative of three interlocutors or the latest attempt by the Omar Abdullah ministry to get the AFSPA revoked, can be understood within these political paradigms.

Given this political backdrop, with which he barely engages, Noorani believes that a revised Article 370, denuding the president and, therefore, the central government of the power to alter it, will fit the fourfold external aspects of dealing with Pakistan (reduction of the Line of Control to irrelevance, demilitarisation, self- governance in both India and Pakistan administered parts of Kashmir and a joint management mechanism) as well as dealing with the renewed calls for azadi. A constitutional breakthrough, however, is neither imminent nor is it going to be as comprehensive as Noorani thinks. The “pre-1953 status eroded as back as 1963 is probably gone for ever. Any new constitutional settlement which enjoys popular support and is negotiated freely between the representatives on both sides appears improbable given the lack of political will, sincerity of purpose and a spirit of compromise, but, above all, the recent challenge to the idea and institutions of political representativeness itself.

Short on Analysis

Noorani is a prolific and vastly knowledgeable writer but this book is long on accumulation and short on analysis. As a colle ction of historical documents (letters, memos, proclamations and white papers), legal judgments and constitutional amendments, it is a very useful reference book. This is more so as the constitutional arrangement between the state of Jammu and Kashmir and the Union of India has not received as much popular attention as other aspects of the Kashmir conflict. But the book essentially reads as a series of extracts from the documents, or the entire document, in chronological order. While the documents are grouped around major milestones along the 60-year history of Article 370 and, to that extent, structured but also selective, they lack a textual narrative and a political context which could do better justice to the material. The politics around the historical production of this trail of documents, that Noorani presents, is absent. There is a vast set of characters, their attitudes and relationships and concerns which could have been discussed and analysed so as to better unpack this collection of documents.

If the aim of the book was not to analyse but to merely chronicle the constitutional history of Jammu and Kashmir, there are some gaps; most notably the decade of the 1980s. Noorani quotes from B K Nehru’s Nice Guys Finish Second (New Delhi, 1997) but omits his difficult governorship (1981-84) of the state, his removal and replacement by Jagmohan and the subsequent removal of Farooq Abdullah’s ministry – an act of political short-sightedness on the part of Congress which many believe to be, alongside the farcical election of 1987, the straw which broke the camel’s back in the Srinagar Valley against India. B K Nehru’s papers are at NMML and they reveal, in a particularly stunning sequence of five letters he wrote to Indira Gandhi over 1983-84, the enormity of immorality which was being contemplated by New Delhi against Srinagar and was being confronted by Nehru. Noorani also skims over the 1990s and does not bring out the enhanced complexities in the way of any constitutional attempts of this nature in the twin-political developments of coalition politics in New Delhi and insurgency in Kashmir.

If, all history – constitutional or cultural – reflects its period then, as Wm Roger Louis wrote, it is best understood while located within that period. If history is minimally, as Robin W Winks observed, three things – what happened in the past, what people believed happened in the past and what historians say happened in the past – then Noorani’s Article 370 (New Delhi: OUP 2011) attempts only to address the first aspect. It presents before us a mass of material but leaves it to us to examine it. It approaches a historically contentious subject but leaves us to seek patterns in this history. Few aspects of modern Indian history have seen greater shifts in popular or scholarly perceptions, grown so vehemently in terms of the tonnage of writing and have added so many dimensions as the Kashmir dispute. In a certain sense, however, Noorani’s work completes a cycle. The constitutional ques tion of accession was the paramount Indian focus when the dispute emerged, before getting overtaken by the themes of identity, security and self-determination. Noorani brings it back as the central concern as also providing attention to the possible “solution to the wider Kashmir problem”.

Rakesh Ankit (rakesh.ankit@gmail.com) studied history at Delhi and Oxford.

EPW Index An author-title index for EPW has been prepared for the years from 1968 to 2010. The PDFs of the Index have been uploaded, year-wise, on the EPW web site. Visitors can download the Index for all the years from the site. (The Index for a few years is yet to be prepared and will be uploaded when ready.) EPW would like to acknowledge the help of the staff of the library of the Indira Gandhi Institute for Development Research, Mumbai, in preparing the index under a project supported by the RD Tata Trust.

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