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Genesis of article 370, and cause of Kashmir’s unique predicament in modern day India

19th January is observed as Exodus Day by Kashmiri Pandits. Close to 4 lakh Kashmiri Pandits were forced to flee from their home due to violence and terror unleashed by Muslim separatists in the valley. One of the key reasons for their exodus was separatist attitudes of Islamists in the valley. The root cause for this ‘separatism’ can be traced to article 370 which is a symbol of Kashmir’s incomplete integration with the Indian nation.

One is inclined to question who was the person who drafted this article and what explanations were given for this concession in the constituent assembly? Could this article have been avoided at all?

Gopalaswami Ayyangar : The man behind Article 370

The person who moved the Article 370 for passage in Constituent assembly on October 17, 1949 was Gopalaswami Ayyangar , a minister in Nehru’s interim cabinet.

Before taking a plunge into politics, Ayyangar was a civil servant in the Madras state till 1937. He served as Prime Minister of Kashmir from 1937-43 and later became a member of the council of states from 1943-46. He was later elected to the constituent assembly in December 1946. Ayyangar was Nehru’s man in Kashmir. Initially he was inducted into the cabinet as a minister without portfolio. He was also member of the drafting committee led by Ambedkar. He led Indian delegation to UN on Kashmir.

Hasrat Mohani’s concerns on ‘discrimination’

On October 17, 1949 , Gopalaswami Ayyangar rose to explain the reasons for introduction of Article 370. He said (emphasis added) :

Sir, this matter, the matter of this particular motion, relates to the Jammu and Kashmir State. The House is fully aware of the fact that the State has acceded to the Dominion of India. The history of this accession is also well know. The accession took place on the 26th October, 1947. Since then, the State has had a chequered history. Conditions are not yet normal in the State.

The meaning of this accession is that at present that State is a unit of a federal State, namely, the Dominion of India. This Dominion is getting transformed into a Republic, which will be inaugurated on the 26th January, 1950. The Jammu and Kashmir State, therefore, has to become a unit of the new Republic of India.

As the House is aware, accession to the Dominion always took place by means of an instrument which had to be signed by the Ruler of the State and which had to be accepted by the Governor-General of India. That has taken place in this case. As the House is also aware, Instruments of Accession will be a thing of past in the new Constitution.

The States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a document of Accession for the purpose of becoming units of the Republic, but they are mentioned in the Constitution itself; and, in the case of practically all States other than the State of Jammu and Kashmir, their constitutions also have been embodied in the Constitution for the whole of India. All those other States have agreed to integrate themselves in that way and accept the Constitution provided.

At this juncture Maulana Hasrat Mohani rose to ask : Why this discrimination please ?

To this Ayyangar said that the state was not ripe for full integration due to several reasons. He said that other states had completely agreed to full integration with India and had accepted to abide by the constitution. However the state of Jammu and Kashmir was not ready for it as the local assembly was dead and the Government of India was entangled in the United Nations. It must be remembered that UN resolution on Kashmir had been passed on April 28 1948 (more than a year before the article was introduced in constituent assembly). He said :

There was a cease-fire agreed to at the beginning of this year and that cease-fire is still on. But the conditions in the State are still unusual and abnormal. They have not settled down. It is therefore necessary that the administration of the State should be geared to these unusual conditions until normal life is restored as in the case of the other States.

Part of the State is still in the hands of rebels and enemies.

We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.

Again, the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it.

We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the instrument of a constituent assembly, will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.

At present, the legislature which was known as the Praja Sabha in the State is dead. Neither that legislature nor a constituent assembly can be convoked or can function until complete peace comes to prevail in that State. We have therefore to deal with the Government of the State which, as represented in its Council of Ministers, reflects the opinion of the largest political party in the State.

Till a constituent assembly comes into being, only an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangement that exists in the case of the other States.

This indicated that procedural and legal hurdles were the main reason for including Article 370. It must be noted that the state of Junagarh was acceded to India through a peaceful plebiscite.

By not allowing the Indian Army to finish its job in chasing out invaders and moving to the United Nations hastily, Nehru had tied India to the provisions of UNSC resolution 47. India could have also conducted a partial plebiscite in its side of Kashmir and concluded full accession to India before moving to United Nations. Kashmiris had a favorable view of Indian troops that had liberated them from invaders at that point of time.

India could have pursued Pakistan occupied Kashmir in a separate resolution, thereby avoiding the need for article 370. Hence it appears that this arrangement was required from the legal perspective. But this could have been wholly avoided.

In spite of these explanations by Ayyangar , Hasrat Mohani stood up and objected :

Well, I would not go into any detail. But I say that I object to this sort of thing. If you grant these concessions to the Maharaja of Kashmir you should also withdraw your decision about the merger of Baroda into Baroda into Bombay and allow all these concessions and many More concessions to the Baroda ruler also.

After ignoring this comment, the assembly passed the infamous article.

Kashmiris Pandits and UNSC resolution 47

So where does that leave Kashmiri Pandits who have fled vis-a-vis any future hopes of implementing UNSC resolution 47? Clause 14 of the UNSC resolution 47 says :

Government of India should ensure that the government of the state releases all political prisoners and take all steps so that :

(a) All citizens of the state who have left it on account of the disturbance  are invited, and are free, to return to their homes and to exercise their rights as such citizens

(b) There is no victimization

(c) Minorities in all parts of the state are accorded adequate protection

Clearly Kashmiri Pandits are still very much a part of the state of Jammu and Kashmir and no future settlement on Kashmir can be achieved without their assent.

Can Article 370 be removed ?

Removing Article 370 may help in achieving full integration of Jammu and Kashmir with India. Some legal experts say that this move will require consent of the J&K assembly as per the current form of the article. However, contrary opinions which claim that this article can be removed through a constitutional amendment are also prevalent. In the end, it depends on how parliament deals with the issue in future.

Future of exiled Kashmiri Pandits 

In spite of Article 370, mistakes in 1948 and communal violence, Kashmiri Pandits still deserve to live peacefully in their home state. The central government and the state government have to create the right conditions for return of Kashmiris to the state. Adequate protection must be given by armed forces in order to ensure that a repetition of events of 1992 does not occur to those families who return to their homes.

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