Autonomy: Myth and Reality

by Dr. M. K. Teng

Maharaja Hari Singh, the ruler of Jammu and Kashmir State, acceded to the Indian Dominion on the terms and conditions envisaged by the Instrument of Accession which was drawn by the State's Ministry of the Indian Dominion. Hari Singh signed the standard Instrument of Accession which the rulers of the other acceding States had signed earlier and he bounds himself to the same obligations, which the rulers of the other Indian States had accepted. There was no condition attached to the accession of the State to India, which provided for any separate set of constitutional relationships between Jammu and Kashmir and the Dominion of India. All the acceding States and the Union of the States, Jammu and Kashmir being no exception, were reserved the right to convene their own Constituent Assemblies to draw up a constitution for their respective governments. Indeed, Constituent Assemblies were instituted in Mysore State, the Saurashtra States Union and Travancore-Cochin.

Sheikh Mohammad Abdullah and the other National Conference leaders were in jail when India won freedom and were released from imprisonment months after the British had left. After their release the Conference leaders laid no conditions for the accession of the State to India which they supported except that they demanded the transfer of State power to the people, a process to which the Indian Government was equally committed. The claims made by several State leaders as well as many national leaders that National Conference had endorsed the accession of the State to India on the condition that Jammu and Kashmir would be constituted into a separate and autonomous political identity on the basis of the Muslim majority character of its population, is a distortion of history. The Conference leaders did not lay claim to any immunity from the future Constitution of India, nor did Nehru or any other Indian leader, give any assurance to the ruler of the State or the Conference leaders, about any special constitutional position, Jammu and Kashmir would be accorded in the Indian federal organisation.

The Instrument of Accession was evolved by the Secretary in the State's Ministry of the Government of the Indian Dominion, V.P. Menon, in consultation with the Viceroy, Lord Mountbatten and with the approval of the State's Minister, Sardar Patel. The lapse of Paramountcy had reduced the Princes to mere shadows of the royalty, they were during the British rule. The powers they exercised in their States were enforced by the British authority, and after it was withdrawn, they were left to the mercy of the State's people, who had all along the liberation struggle of India, committed themselves to the independence of India from the British rule and unity of the people in the British India and the Indian States.

Lord Mountbatten as well as V.P. Menon were interested in the protection of the Princes for their own reasons. They enacted the long and atrocious drama of the integration of the States, to secure the Princes, the powers and privileges they had enjoyed under the protection of the Paramountcy. Menon persuaded Patel to accept the accession of the States on the basis underlined by the Cabinet Mission, thus leaving the Princes in possession of all powers of the government, except defence, foreign affairs and communications. Accordingly, the Princes were invited to accede to the Indian Dominion and delegate to the communications leaving the residuary powers for them to administer. The demonstration effect of the Indian offer to the Princes was so profound on the State Department of Pakistan, that it agreed to accept the accession of the States on two subjects only i.e. the defence and foreign affairs, leaving communications as well as state troops, within the control of the States.

After the accession of the States to India, their integration into viable administrative units and the institution of their Constituent Assemblies proved more difficult a task than anticipated. In view of these difficulties, the whole question of constitution making in the State was considered in May 1949, at a Conference of the Premiers of the various States and the Union of States. The Conference of the Premiers decided not to wait until the Constituent Assemblies in the States were convened and instead decided to leave the task of the framing of the Constitution of the States to the Constituent Assembly of India. The intention was that the provisions of the Constitution of the Provinces should apply to the State as well. The report of the B. N. Rao Committee had emphatically suggested application of the Constitution, drawn up for the Provinces, to the States, in order to bring about uniform constitutional reforms in the Provinces and the States.

The recommendations of the B. N. Rao Committee were discussed with the Drafting Committee of the Constituent Assembly, and the Drafting Committee eventually drafted a Constitution for the States evolved on the basis of the Constitution framed for the Provinces, with certain changes and modifications. The draft Constitution of India, was then sent to Saurashtra, Travancore-Cochin and Mysore for the consideration of their Constituent Assemblies and the Rajpramukhs of all other Unions of States and individual States. There upon Rajpramukhs of all Unions of States and States issued a proclamation which read: "That the Constitution of India shortly to be adopted by the Constituent Assembly of India shall be the Constitution for..State, as for other parts of India and shall be enforced as such in accordance with the tenor of its provisions."

Similar proclamations were made by the Maharaja of Mysore, Nizam of Hyderabad and Maharaja Hari Singh of Jammu and Kashmir. The truth is that the Maharaja of Kashmir accepted the Constitution of India the same way, it was accepted by other acceeding princely States.

The Interim Government of Jammu and Kashmir State, which was constituted by the National Conference, did not accept that the Constituent Assembly of India should frame the Constitution of the State and insisted upon the convocation of a separate Constituent Assembly in the State to frame its Constitution. A Conference of the representatives of the Government of India, in which Nehru, Patel, Gopalaswamy Ayengar, Sheikh Mohammad Abdullah and Beg participated, was convened in Delhi, to finalise the broad principles of the Constitution of the State.

In the Conference, the State representatives administered a jolt to Nehru and the other Indian leaders when they blankly refused to accept the application of any provision of the Constitution of India to the State. The leaders of the National Conference conveyed to the Indian leaders, in veiled words, that they favoured a separate constitutional organisation for the State of Jammu and Kashmir, in view of the Muslim majority character of its population, which they feared would be diluted by the Hindu majority in the Indian Union. The Conference leaders proposed that Instrument of Accession would form the basis of the constitutional relationships between Jammu and Kashmir and the Indian Union.

The Indian leaders did not approve of the exclusion of the State from the constitutional organisation of India and emphasised the paramount importance of bringing the States within the scope of the framework of the rights and legal safeguards as well as the principles of state policy, the Constituent Assembly had devised. Nehru, told the Conference leaders that the safeguards for the rights and the principles of state policy had been evolved by the Constituent Assembly with great pride and there could be no reason to deprive the people of the State of the protection, the Constitution of India envisaged. In words, laden with considerable emotion, he stressed that all the people of India would be governed by a uniform set of constitutional postulates and people of any province or any acceding State would not be denied any rights and safeguards for equality, liberty and freedom the objective Resolution adopted by the Constituent Assembly embodied. He readily agreed to modify the scheme of the federal division of powers, the Constituent Assembly had evolved, in respect of Jammu and Kashmir and accepted to reserve a wider orbit of powers, including the residuary powers for the State Government. In the Constituent Assembly had evolved, the residuary powers were vested with the federal government.

After protracted negotiations, an agreement was finally reached between the State leaders and the representatives of the Constituent Assembly which underlined the inclusion of the State in the basic structure of the Indian Constitution and the application of the provisions of the Constitution of India to the State pertaining to the territorial jurisdiction of the Union of India, Indian citizenship, rights and related constitutional safeguards, principles of State policy, and the jurisdiction of the Supreme Court. It was agreed upon that the Constituent Assembly of the State would be empowered to determine the future of Dogra rule and specify, with the approval of the President of India, any further extension of the provisions of the Constitution of India to the State. To avoid any fresh controversy over the agreement, Nehru sent a rejoinder to Abdullah, specifying clearly the stipulation on which the agreement was reached.

THE insistence on the separate constitutional organisation of the Jammu and Kashmir State placed outside the political organisation of India had an ominous portent. The partial application of the Constitution of India to the State, agreed to by the National Conference leaders, aroused doubts about the future constitutional relations between the State and India. Indeed, Sheikh Mohammad Abdullah raised several fresh issues, including that of the State army, immediately after the conference at Delhi concluded. At one stage, during the deliberations in the conference, the National Conference leaders proposed the restoration of the control over the State army to the Interim Government to reorganise it into a fighting force, which would take over the defence of the State after the Indian army was withdrawn.

Abdullah's Demands

The demand for the restoration of the control over the State army had been made earlier as well, in a letter, which the Interim Government had sent to the Ministry of States on January 3, 1949, hardly two days after the ceasefire agreement was brought into force by the United Nations. Nehru visited Srinagar towards the close of May and had further discussions with the National Conference leaders. He was aware of an under-current of discontentment about the agreement, reached at Delhi, among the National Conference leaders who, he found enough reason to believe, were reluctant to accept the inclusion of the State in the basic structure of the Constitution of India. Nehru explained to them that many powers were assumed by the Government of India in regard to the State, because they were inherent in the accession of the State to India and, therefore, were not subject to any negotiations between the State Government and the Government of India.

Shortly after Nehru returned to Delhi, the Conference leaders launched a surreptitious campaign to undermine the agreement reached with the Indian leaders at Delhi.

The issues came to a head when Gopalaswamy Ayangar drew up the draft constitutional provisions for Jammu and Kashmir and sent them to the National Conference leaders for their approval. The draft provisions were based upon the proposals they had agreed to in the conference held at Delhi in May. After a short spell of silence and close-door deliberations, the National Conference leaders placed the draft provisions before its Working Committee. The committee promptly turned down these provisions. Abdullah sent an alternative draft to Ayangar, which stipulated that none of the provisions of the Constitution of India would apply to the State and its relations with the Indian Union would be determined by the Instrument of Accession. In other words, the National Conference proposed the creation of a state, which would not form the part of the territories and the political organisation of the Indian Union. Intriguingly enough, the Conference leaders claimed that the Constituent Assembly of the State would draw its powers, not from the state of India and represent its sovereignty in consequence of the accession of the state, but would draw these from the people of the State and would represent a separate charge, independent of the Indian sovereignty.

Demand For Fresh Draft

Abdullah, in his communication to Ayangar, expressed strong reservations about the application of the provisions of the Constitution of India in regard to fundamental rights and related constitutional guarantees and the jurisdiction of the Supreme Court of India to the State on the ground that the fundamental rights, embodied in the Constitution of India, conflicted with the policies of the National Conference which were committed to radical social and economic reforms. Ayangar, labouring under the impression that the Conference leaders would accept his proposal if he left out the fundamental rights and related safeguards from his draft, drew up a fresh draft, in which reference to fundamental rights and the related legal guarantees and the federal judiciary were altogether omitted. To his utter consternation, the Conference leaders rejected the modified draft as well. They categorically refused to accept the application of any provisions of the Constitution of India to the State. Ayangar, who had served Maharaja Hari Singh as Prime Minister during the most fateful years of the history of State, did not realise the grave consequences of keeping Jammu and Kashmir out of the scope of the rights and related judicial safeguards the Constitution of India envisaged for the Indian people. He was unmindful of the incalculable harm the fateful change he had made in his proposals would do to the minorities in the State.

Territorial Jurisdiction

Ayangar made fresh efforts to arrive at an agreement with the Conference leaders who refused to accept any provisions of the Constitution of India, including the provisions which described the territorial jurisdiction of the Union. The Conference leaders were invited to the Indian capital for talks and Nehru joined the parleys. He distrusted the demand of the National Conference leaders for a separate constitutional organisation of the State which did not form a part of the Indian republic and strongly pleaded with them to abandon their abduracy. He refused to approve of any constitutional arrangement, which forced the exclusion of the State from the basic structure of the Constitution of India. The Conference leaders refused to relent and, at one stage, broke off the negotiations and threatened to resign from the Constituent Assembly of India. They sulked away, closing themselves up in Kashmir House, a mansion built by Maharaja Hari Singh in the Indian capital.

Nehru and other Indian leaders were caught in between the devil and the deep sea. They could ill- afford to estrange the Conference leaders at a time when the United Nations intervention, interestingly invoked by India against the aggression of Pakistan, had put the India Government at the crossroads. Without the support of the Kashmiri-speaking Muslims, who formed the main support base of the National Conference, India had little hope to win the proposed plebiscite in the State. Nehru was under pressure from the Security Council to implement the demilitarisation plan of the state to prepare the ground for the induction of the UN Plebiscite Administrator into the State. He quietly sent Ayangar to assure the Conference leaders that the Government of India would not press them to accept the inclusion of the State into the constitutional organisation of India.

Ayangar drew up a fresh draft in consultation with Mirza Afzal Beg, a close associate of Abdullah and one among the Conference leaders who was not favourably disposed towards the accession of the State to India. The new proposals envisioned the exclusion of the State from the Indian constitutional organisation. The revised draft provisions were incorporated in Article 306-A of the draft Constitution of India.

Government in Perpetuity

A last minute controversy cropped up between Ayangar and the Conference leaders when the draft (Article 306-A) came up for consideration in the Constituent Assembly. The Conference leaders demanded the inclusion of the provisions in the draft article which recognised the Interim Government of the State as a government in perpetuity. Many prominent members of the Constituent Assembly pointed out to Ayangar the anomalous situation the recognition of a government in perpetuity would create. They advised him not to accept the position taken by the Conference representatives. Accordingly, when Ayangar conveyed his inability to the Conference leaders to incorporate the provisions envisaging a government in perpetuity, they reacted in anger. They again sulked away and did not join the proceedings of the Assembly till Ayangar had delivered half of his speech on the draft article. Inside the Assembly, the Conference leaders sat glum and did not utter a word in support of the draft provisions.

Beg's Threat to Ayangar

Beg had threatened Ayangar that he would move an amendment to the draft provisions. Ayangar watched the proceedings with concern as any controversy between the Indian Government and the Conference leaders in the Constituent Assembly was bound to have a deep impact on the Indian stand at the UN. Beg, however, did not move the amendment and the draft article was passed by the Constituent Assembly without any dissent. Immediately after the proceedings of the day concluded in the Constituent Assembly, Abdullah wrote to Ayangar demanding the annulment of Article 306-A. He gave an ultimatum to Ayangar that he, along with the other representatives of the State, would resign from the Constituent Assembly in case the draft provisions of Article 306-A were not set aside. Ayangar was stunned. As he could hardly help to reverse the decision of the Constituent Assembly, he wrote back to Beg plaintively not to resign from the Assembly, as such a decision would have serious repercussions in Kashmir and outside. "I, therefore, do not consider", Ayangar wrote to Abdullah, "that there is any justification for your entertaining any idea of resignation from the Constituent Assembly. The step, if taken, would produce the most unwelcome and serious repercussions in Kashmir, India and the world. I must ask you to communicate with the Prime Minister before you decide on anything like this". The National Conference leaders did not resign from the Constituent Assembly but Article 306-A was renumbered Article 370 at the revision stage.

Article 370, adopted by the Constituent Assembly of India, excluded the Jammu and Kashmir State from the constitutional organisation of India. The provisions of Article 370 envisaged two basic stipulations: first a limitation was imposed on the application of the Constitution of India to the State and secondly, the powers of the Union Government in respect of Jammu and Kashmir were restricted to the powers transferred to the dominion of India by virtue of the Instrument of Accession viz defence, foreign affairs and communications, corresponding to the subjects in the Union List of the Seventh Schedule of the Constitution of India. The Seventh Schedule of the Constitution of India embodied the federal division of powers between the Union Government and the Governments of the federating Provinces and the States, replacing the stipulations of the Instruments of Accession in case of the latter.

Instrument of Accession

The State was included in the First Schedule of the Constitution of India, which described the territories of the Indian Union. Evidently, the inclusion of the State in the territories of India, followed as a consequence of the Instrument of Accession, executed by the Ruler of the State. The Instrument of Accession accomplished the irrevocable Union of the Jammu and Kashmir with the Dominion of India. The territorial jurisdiction of the Indian State was created by the Independence Act of 1947, and the Instruments of Accession executed by the rulers of the erstwhile Princely States. The Constitution of India described the territories of the Indian State, constituted by the transfer of power on 15 August 1947, and the accession of the State, that followed in due course. The inclusion of the State in the First Schedule of the Constitution of India, actually placed it alongside the other Princely States which had acceded to India.

The accession of the States involved the consent of the States to join either of the two Constituent Assemblies which had been created after the partition was accepted. The Cabinet Mission underlined the adherence of the States to a United India and their participation in the Constituent Assembly of India, which was convened long before the partition was envisaged, and put into effect. The participation of the States in the Constituent Assembly of India was, a consequence of the accession of the States to India.

The accession of the States, brought about the irrevocable unification of the Princely States with the State of India, irrespective of whether they accepted to become a part of any future constitutional organisation of India. The integration of Jammu and Kashmir into the State of India was, therefore, brought about by its accession to India and not by Article 370.

The Constitution of India did not constitute the State of India. In fact, the Constitution was only declaratory of the state of India. The Indian State existed prior to the Constitution of India, and it would not suffer dissolution if the Constitution of India was abrogated nor would the Jammu and Kashmir fall apart if Article 370 was rescinded.

Limitation of Art. 370

Had Article 370 not been incorporated in the Constitution of India, Jammu and Kashmir would have been placed in the constitutional organisation of India in the same manner in which the other federating States, grouped into Part B States, were placed. The limitation imposed by Article 370 explicitly restricted the application of the Constitution of India to Jammu and Kashmir. Article 370, was by no means an enabling act. There was only one enabling instrument which the Indian Independence Act created and that was the Instrument of Accession. The participation of the States in the Constituent Assembly of India was an inevitable consequence of the accession of the States. The oft-repeated assertion that Article 370 was an enabling act, was politically motivated and was used by successive State governments to perpetuate their power to rule by decree which was vested in them by Article 370.

Evidently, Article 370 was not in any way connected with the so-called autonomy of the State. In fact, it placed the State outside the federal structure of India, the federal division of powers between the Union and the States and the jurisdiction of the federal judiciary, including its power of judicial review, which guaranteed the autonomous identity of the States in India. Autonomy for the Indian States could only be visualised within the Indian federal structure and not outside the division of powers it envisaged.

Provisions were incorporated in Article 370 for convocation of a separate Constituent Assembly for the purpose of drafting the Constitution of the State. The stipulations of Article 370, in regard to the Constituent Assembly of the State, left no doubt about the fact that the Constituent Assembly of the State was a creature of the Constitution of India and drew its powers from the same source. Several of the Conference leaders claimed plenary powers for the Constituent Assembly. The issues they raised were more involved. Perhaps they did not accept that the institution of the Constituent Assemblies in the erstwhile Princely States, followed as a consequence of the accession of the States to the Indian Dominion.

The claim of the National Conference leaders to plenary powers for the Constituent Assembly, which in the following years became the cause of a serious controversy, between the National Conference and the Indian Government, had a subtle and dangerous import. Plenary powers would vest in the Constituent Assembly a veto, not only on all constitutional relationships between the Jammu and Kashmir State and the Union of India, but also on its accession to India. The National Conference leaders claimed plenary powers for the Constituent Assembly, when it was constituted to determine the finality of the accession of the State of India.

Article 370 was included in the transitional provisions of the Constitution of India, and was therefore, presumed to be of transitory nature. Indeed provisions were incorporated in Article 370 by virtue of which the President of India was empowered to modify or terminate the operation of its provisions by a notification, provided recommendations to that effect were made by the Constituent Assembly of the State. The President was empowered to extend the application of the provisions of the Constitution of India to the State by an order issued by him in concurrence with the State Government. Presumably the temporary provisions, envisaged by Article 370 were meant to remain in operation only so long as the Constituent Assembly of the State completed its task. Evidently, the founding fathers of the Indian Constitution could not have visualised a perpetual Constituent Assembly for the State.

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