22 Sep 2019 11:35 AM GMT
The abolition of Article 370 led to dubious drum beating about final integration of Kashmir into India. In the year 1954 when the Presidential Order (1954) was issued comprehensively determining the extent of Union control over Kashmir, the same kind of trumpet blowing occurred. I call it drum beating and trumpet blowing as I find it distasteful. There was again a heated debate, based on...
The abolition of Article 370 led to dubious drum beating about final integration of Kashmir into India. In the year 1954 when the Presidential Order (1954) was issued comprehensively determining the extent of Union control over Kashmir, the same kind of trumpet blowing occurred. I call it drum beating and trumpet blowing as I find it distasteful. There was again a heated debate, based on no evidence at all, about who supported what in terms of merger of the States. Patel was projected as the pilot of uniform National Integration while Nehru was demonised for his failure to achieve the same kind of integration as piloted by Patel for other States. Even Ambedkar was put in the picture frame for his opposition to the Nehru's scheme of merger for Kashmir. Not satisfied, even Shyma Prasad Makerjee was alleged to have opposed it. What is amazing is that even the Government of India promoted this view and the debate, in the temple a democracy called Parliament. Is it true even remotely? There is not even an iota of evidence, either in any correspondence preceding the Constitution, or in the Debates held in the Constituent Assembly of India. Neither Patel nor Ambedkar or Shri Mukherjee uttered a word of objection in this regard. In fact there is a statement of Patel in favour of Article 370 because it is he who conducted the negotiations for merger on various occasions with the Government of Jammu and Kashmir. I am not going into the issue whether Patel had in fact suggested forgoing of Kashmir. Ambedkar was chairman of the drafting Committee which incorporated Article 306 (Article 370) in the Draft Constitution, likewise Shri Mukherjee was also a Minister in the Central Cabinet as well as a member of the Constituent Assembly when draft Article 306 was debated.
The contemporaneous documents, the negotiations between the Union and the Government of Jammu and Kashmir, and the Constituent Assembly debates do affirm the position that Jammu and Kashmir was a special case being a border State. Kashmir did not accept a complete cession of sovereignty in favour of India. Only limited external sovereignty was ceded while the internal sovereignty was retained by the Raja when accession took place in the years 1948-49. The Framers of our Constitution were men of great foresight and wisdom. Most of them were active freedom fighters who had spent years of incarceration in the British jails during the freedom struggle. At least their loyalty to the Nation cannot be debated. These wise men during the debates on the draft Article 306, categorically accepted the special status for Kashmir and guaranteed it till the Kashmir decided otherwise. All were unquestionably on the same page when Article 370 was enacted in the Constitution. Article 370 was infact the guarantee of special status to Kashmir. It was the sole tunnel through which the constitutional relationship between the Union and the State of Jammu and Kashmir was to travel. There is a mistaken belief that this status could be abrogated by the Union by issue of Presidential proclamations under this very Article 370, enlarging the Union's jurisdiction over the State. This is a clear misconception as would follow unequivocally from the reading of the debates in the Constituent Assembly of India on Article 370, as well as proper in depth analysis of it.
The wise men who framed the Constitution and with it Article370, not only guaranteed a special status for the state of Jammu and Kashmir, but they also guaranteed that the State will have its own Constituent Assembly to enact a Constitution for the State. Till that was to happen, the Constitutional relationship was to be regulated largely through the tunnel of Article 370, with the concurrence of the Constituent Assembly of Jammu and Kashmir. The Constituent Assembly was assumed to be the expression of the will of the people. The careful analysis of Article 370 (2 & 3) would establish this factum of supremacy of the Constituent Assembly of Jammu and Kashmir and its Constitution, that was promulgated in the year 1956-57. It was neither the creation of Article 370 nor any other part of the Constitution of India. It was independent. Constitutions are 'sui generis' and are not temporary creations, unlike laws made under the Constitution. Even the amendatory power of the Union Parliament under Article 368 was kept out by making it inapplicable. These foundational facts have to be properly appreciated because the framers had ordained so in their wisdom and foresight.
There are two things that are really meaningful and interesting that need to be understood. Article 1 carves out a federal structure when it states that "India is a Union of States" but Jammu and Kashmir was not made part of this federal structure by virtue of Article 1 alone. It is Article 370, in fact, which allows Article 1 to operate on Kashmir. But for Article 370, Kashmir would not have been part of the "Union of States". The protagonists of nationalism and "integration" forget this one important fact. The other factor overlooked is that the real integration of Kashmir into the Indian Union was guaranteed by the Constitution of Jammu and Kashmir when it categorically proclaimed so in its Article 3. This Article was also made un-amendable. This is how the Kashmiris' corroborated their immutable option of merging in the Union. What can we call this? Is it something less than the desired hallowed "integration" of Jammu and Kashmir into the Union, or if I may say so, are we not questioning the wisdom of the Framers of our own Constitution and doubting their patriotism and their nationalism?
The dictionary meaning of "integration" simply states, "to make parts into a whole". In other words to complete the whole thing (Union) our Constitution does not define any particular manner of "Integration". This was deliberately kept fluid and flexible. Word "integration" is not used anywhere in the body or the spirit of our Constitution. The word "accession" has been used only in relation to Instruments of Accession, which provided ceding of states into the Union. Kashmir was different in this regard from other mergers. Framers were creating a federal structure without any limitation on its character and shape. They were therefore flexible. The federal structure in our 'Constitution does not even remotely promote any particular kind of integration of States, nor does it require any kind of uniformity in the integration of all States. Neither the framers nor the Parliament acting as Constituent Assembly, post Constitution, ever accepted the principle of uniformity in merger and integration. Then why this "unsolicited and irrational clamour" about final integration of Kashmir? It is distasteful because it portrays Kashmiris as those who were reluctant to integrate and therefore had to compelled by the force of the Nation to integrate as others.
However neither the Government of India nor the proponents of this uniformity give one reason why this was required. The statements accompanying the abrogation of Article 370 made by the Home Minister as well as those around him, pitched this as the sublime National cause. Controversies that were in-fact imaginary were raked up to buttress the nationalism and patriotism causes. No one stood up to reason these assumptions. The question that begs an answer from the powers that be, isthat, why is uniform integration necessary before one can claim, more importantly the Kashmiris, that Kashmir has now been truly integrated?Whose definition of integration is this? Is it that of the nationalist patriots or is it one that is prescribed by the law and the Constitution?The question further arises, can we interpret the word "integration" as per one's whims and fancies, ignoring the Constitutional mandate?
Every nation has got to have some moral code to tie up the loose ends. Constitution is one such golden thread that binds the Nation. It bases itself on the touch stone of federalism. It creates this nation as a federal structure, aligning the States as per their peculiarities. It contained the seeds of cultural as well as linguistic federalism, which has kept the nation together, all these years. Force was rarely used to compel merger. Kashmir itself ceded and sealed the merger permanently. Yet we doubt that merger in the name of some fancy "integration" unknown to the Constitution. It reminds me of what Nehruji said on 26th June 1952, "And I say with all respect to our Constitution that it just does not matter what your Constitution says; if the people of Kashmir do not want it, it will not go there. Because what is the alternative? The alternative is compulsion and coercion- presuming, of course, that the people of Kashmir do not want it. Are we going to coerce and compel them and thereby justify the very charges that are brought by some misguided people outside this country against us?
Do not think that you are dealing with a part of Uttar Pradesh, Bihar or Gujarat. You are dealing with an area, historically and geographically and in all manner of things, with a certain background. If we bring our local ideas and local prejudices everywhere, we will never consolidate. We have to be men of vision and there has to be a broad-minded acceptance of facts in order to integrate really. And real integration comes of the mind and the heart and not of some clauses which you may impose on other people."
This essay would be incomplete without the quote of another doyen amongst Indians, Shi Rabindranath Tagore. In 1908 he said, "patriotism can't be our final spiritual shelter. I would not buy glass for the price of diamonds and I would never allow patriotism to triumph over humanity as long as we live". The creator of our National Anthem was echoing the same sentiments as the creator of Modern India.They reflected the spirit that pervaded our federal structure, as visualised in Article 1, when it proclaims "India is a Union of States". It is not by compulsion or force but compassion for the people - "humanity of Tagore". Respect for the Constitution is the only road to true nationalism. Those who do not respect the Constitution cannot be patriotic. Kashmir is not merely a piece of land, only to be fought for. It is the people of Kashmir, who opted voluntarily to integrate with India, need to be protected and preserved. Their 'Kashmiriyat' needs to be preserved. This is what Article 355 provides when it requires Union to protect the States against external aggression. We therefore have to reflect on what has been done.By an Executive Order issued in the name of President under Article 370, what has been abrogated is the Constitution of Kashmir which the Kashmiris had given onto themselves.
Views Are Personal Only.
(Author is a Senior Advocate in Supreme Court of India)