03/10/2019 9:08 AM IST

Amit Shah Is Right About Article 370 Being Temporary. He Conveniently Never Says Why

By abrogating Article 370, the Modi government has closed the only way to find a permanent constitutional solution for the Kashmir issue.

Last month, while addressing the North East Council Plenary in Guwahati, home minister Amit Shah was quick to assure his listeners that his government had no intention of scrapping Article 371A, which provides safeguards to the people of Nagaland. Addressing the contradiction between this assurance and his government’s August 5 move to withdraw Jammu and Kashmir’s special status, Shah said Article 370 was different because it was temporary. The home minister was reiterating the argument he made in Parliament when the government abrogated Article 370 in August, when he justified the action by falling back on its temporary status.

While Shah and other BJP leaders are right to claim that the provision that gave special status to Kashmir was not permanent in the Constitution, they are telling an incomplete story.

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The framers of the Constitution did think of Article 370 as a temporary arrangement, but they had then envisioned that a permanent arrangement, embodying the will of the people of Jammu and Kashmir, would replace it in the near future. It was this provision that was expected to pave the way for a fuller integration of Jammu and Kashmir with India. By abrogating it, the Modi administration has possibly closed the only way by which the Indian government could hope to find a permanent constitutional solution for the Kashmir issue.   

How did Article 370 enter the Constitution?

To make sense of why Article 370 was envisaged as a temporary measure, it is important to unpack the speech made by N. Gopalaswami Ayyangar, member of the Drafting Committee of the Indian Constitution as well as the cabinet minister looking after Kashmir affairs in the Nehru government, on 17 October 1949 in the Constituent Assembly. In his speech, Ayyangar outlined two “special conditions” prevailing in Kashmir, due to which it was not yet ready for integration with India in the same manner as other princely states. Amidst cheers, he claimed on behalf of everybody in the Constituent Assembly that “in due course, even Jammu and Kashmir will become ripe for the same sort of integration.”  

What were these two conditions? First, the “unusual and abnormal” situation existing in the state even after the declaration of cease-fire between India and Pakistan. Second, the involvement of the United Nations in the Kashmir issue.  

Hence, Ayyangar asserted, the state administration first has to “be geared to these unusual conditions until normal life is restored as in the case of the other States”.  

“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. […] 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.”

Article 370 (or Article 306A of the draft constitution), he argued, was an effort to establish an “interim system” given the special conditions prevailing in Kashmir.   

Article 370 became part of the Constitution as a result of the negotiations between leaders of the Union government (Jawaharlal Nehru, Sardar Vallabhbhai Patel, Abul Kalam Azad and Ayyangar) and Sheikh Abdullah and his party colleagues in the National Conference. All of them were acutely aware of the democratic deficit of this arrangement. At the time of these negotiations, Sheikh Abdullah’s government was not an elected one but appointed. We need to think of this also as part of the “special conditions” prevailing in Kashmir.  

A few months earlier, on 27 May 1949, Ayyangar had moved a motion in the Constituent Assembly, seeking an amendment in its rules so that seats assigned to Kashmir could be filled through nomination by the Maharaja of Kashmir on the advice of his Prime Minister (Sheikh Abdullah was appointed as the Prime Minister by Maharaja Hari Singh on his signing the Instrument of Accession with India on 26 October 1947). Otherwise, the rules had mandated that if a (princely) state had an elected legislature, members to the Constituent Assembly from that state should be elected by the legislators. Kashmir did have an elected legislature called the Praja Sabha, but, Ayyangar, in his speech, justified nomination by the Maharaja by pointing out that the Praja Sabha had not met since April 1947 and was practically “dead”. Hence, he argued that the best option was nomination on the advice of Sheikh Abdullah, who headed the largest and most popular political party in the state.  

When K.T. Shah, an active participant in the Constituent Assembly Debates, moved a counter-amendment seeking that seats from Kashmir be filled by elections from Praja Sabha, Nehru opposed this, not only on the basis that the legislature was no longer functioning but also by questioning the democratic legitimacy of the Sabha. Nehru’s argument appears to be that nomination based on the recommendation of the head of the most popular party in the state was the most appropriate democratic process under the prevailing circumstances.   

Respecting people’s will 

The framers of the Indian Constitution, who fought against the colonial rule, were deeply sensitive to the idea of the popular will. This sensitivity is displayed in the initial Constituent Assembly sessions, where members debated on the sovereignty of the Assembly as well as their own representativeness. The majority in the Assembly believed that even though the Assembly was the creation of the British government, it was established because of the struggle of Indians and thus the people of India were the source and strength of the Assembly. So, although the members were indirectly elected from assemblies elected on restricted franchise (and some from the princely states nominated by the rulers of these states) they claimed to be representative of all sections of the Indian society.

Yet another instance of this sensitivity to popular will was reflected in Nehru’s statement regarding princely States in his speech while moving the Objective Resolution in the Constituent Assembly. He clarified that nothing would be imposed on these states against their will—and by this, he meant the will of the people of the states, not that of the ruler. 

“The Resolution does not concern itself with what form of government they will have or whether the present Rajas and Nawabs will continue or not. These things concern the people of the States. It is quite possible that the people may like to have their Rajas. The decision will rest with them.” 

Ayyangar was echoing the same sentiment when he spoke of the plebiscite and a Constituent Assembly for Jammu and Kashmir.  So, Article 370 was temporary because the will of the people of Jammu and Kashmir was yet to be formally established. 

Where the Nehru government veered away from its democratic commitments was by not creating a conducive atmosphere for the free working of the Constituent Assembly in Jammu and Kashmir. Unlike the rightwing propaganda that Nehru erred by agreeing to, or more hyperbolically, creating Article 370, his error lies more in the failure to keep the promises made to the people of Kashmir. The temporary nomenclature for Article 370 remained in the Indian Constitution because no popularly mandated permanent provision to replace it was ever finalised. The Constituent Assembly of Jammu and Kashmir lost its popular legitimacy after the arrest of Sheikh Abdullah and the Constitution it framed could not acquire the permanency required of it.

Despite the democratic deficit involved in the creation of Article 370 and the Jammu and Kashmir constitution, these were still the most approximate democratic mechanism that made space for the will of the people it most affects. The permanency which the current government seeks to achieve through abrogating Article 370 is that of annexation, force, and domination. This, however, is an illusionary permanency, as history teaches us. In The Social Contract, French philosopher Rousseau wrote that “The strongest is never strong enough to be master all the time, unless he transforms force into right and obedience into duty.”  A people, according to Rousseau, might accept force temporarily as “an act of necessity” or “an act of prudence” but never willfully.

Rousseau being French might be too foreign for the leaders of BJP, but I hope they pay heed to their most-favoured Congress leader Sardar Patel.  In a letter to Mehrchand Mahajan, the Prime Minister of Kashmir, sent a few days before Maharaja Hari Singh signed the Instrument of Accession, Patel wrote that “in your dealings with the external dangers and internal commotion with which you are faced, mere brute force is not enough”. Instead, he wrote, what was needed was “popular backing”, in particular that of the community which is in majority in Kashmir.         

Finally, Ayyangar’s statement that the “special conditions” of Kashmir led to the creation of a temporary measure begs a question for us in the present—has there ever been a time since his statement in the Constituent Assembly when those conditions ceased to operate in Kashmir?