History behind article 35A

Omar Abdullah (National Conference) and Mehbooba Mufti, former chief ministers of Jammu & Kashmir, the Congress party and the Mahagatbhandhan have warned the Modi administration of ‘dire consequences’ were it to promulgate an Ordinance annulling Art.35-A of the Constitution.

The challenge to 35-A is due for hearing before Supreme Court Chief Justice Ranjan Gogoi’s Bench. Pakistani’s ‘Pulwama Perfidy’ may seem a tempting trigger. And sans Art.370 that grants special status to Kashmir, 35-A has no independent existence. Without wading into the controversy over 35-A, let us get real with a bit of fact-checking on Art. 370 itself. It makes fascinating reading, whichever side of the divide you may choose to align with.

 On Feb 25, 19-year-old Preeti Kedar Gokhale and 20-year-old Kajal Mishra. daughters of  serving  and retired Army officials  got  the Supreme Court to issue  notices to the Defence Ministry  to ‘protect the human rights of the soldiers on the ground’ in the Kashmir Valley  in the battle with stone pelters.  They have alleged that despite 9,760 FIRs against stone pelters, there was no action. But soldiers were facing charges of use of excessive force. And why?

How many of us have cared to find out that Dr. B.R. Ambedkar, the Pitamaha of the Constitution, was opposed to Article 306-A. (now 370). After hearing Sheikh Abdullah (who was referred to as Babasaheb by Jawaharlal Nehru for constitutional recognition of special status) patiently - Dr. B.R. Ambedkar told him: “You want that India should defend Kashmir, India should develop Kashmir and Kashmiris should have equal rights as the citizens of India but you do not want India and any citizen of India to have any rights in Kashmir. I am the Law Minister of India.  I cannot betray the interest of my country.”

 It was then that Nehru asked N Gopalaswami Ayyangar to draft what was then Article 306-A in the draft Constitution. The need and justification for making special provisions for Jammu and Kashmir came up for heated debate in the Constituent Assembly. Ayyangar was the Head of the Emergency Administration in the State. When the Emergency Administration was replaced by a popular Interim Government, in accordance with the Procla mation of the Maharaja of the State, on March 5, 1948 Ayyangar was appointed by the Maharaja as the Prime Minister of the State with effect from March 1, 1948.

Read this chilling account from Ayyangar, “Kashmir’s conditions are as I have said, special and require special treatment….. I shall briefly indicate what the special conditions are, in the first place, there has been a war going on within the limits of Jammu and Kashmir State. There was a ceasefire agreed to at the beginning of this year and that ceasefire 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 agreed 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 also agreed to (assert) the will of the people, through the Instrument of Accession.”

“Constituent Assembly, will determine the Constitution of the State as well as the sphere of the Union Jurisdiction over the State.  At present, the Legislature, which was known as the Prajasabha in the State is dead. Neither that Legislature nor a Constituent Assembly can be convened or can function until complete peace comes to prevail in the 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 and arrangement which could at once be brought into line with the arrangements that exists in case of the other States”.

He also made the following argument in seeking support for his amendment on Article 306-A: “Till India became a Republic, the relationship of all the States with the Government of India was based on the Instruments of Accession. In the case of other Indian States, the Instruments of Accession will be a thing of the 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 becoming units of the Republic. It would not be so in the case of Kashmir since that particular State is not yet ripe for this kind of integration due to special conditions prevailing in Kashmir.”

Gopalaswami Ayyangar insisted that the special status’ provisions were of ‘transient’ nature. Yet, the members of the Constituent Assembly were ‘furious in their opposition’ and to ‘mollify’ Sheikh Abdullah, Jawaharlal Nehru had nowhere to go but to the Iron Man - Sardar Vallabhai Patel.

History has recorded that while Sardar Patel sorted out Hyderabad/Junagadh accession - Jawaharlal Nehru retained the Kashmir issue to himself. It was Nehru’s interaction with Sheikh Abdullah that led to a ‘promise of special status’ and on refusal of Ambedkar to oblige- the onus fell on Nehru to persuade Gopalasami Ayyangar to ‘help him out’.

 But it is equally recorded that at the time when Art.306-A (now 370) was adopted in the Constituent Assembly, Ambedkar was not in attendance. He had effected a ‘walk out’, possibly the most principled in the history of our Parliament - that too as Law Minister of the land. And Nehru was not around at that time - and had to beseech Sardar Patel to use ‘his clout and persuasive skills to convince the members of the assembly who were agitated and opposed, to save the face of Jawaharlal’. Despite his serious reservations, Sardar Patel magnanimously used his ‘clout and sway’ over the members, to get Art.306-A adopted, as drafted by Ayyangar. While 564 Princely States consented to join the Indian Union without any caveats, Kashmir was granted special status and a separate Constituent Assembly and Constitution too.

Allow Ayyangar and Sardar Patel take over
New Delhi
15thOctober, 1949
 
My Dear Sardarji,
 Sheikh Abdullah and two colleagues of his had a talk with me for about an hour and, as I told you this morning there was no substance at all in the objections that they put forward to our draft.  At the end of it all, I told them that I had not expected that, after having agreed to the substance of our draft both at your house and at the party meeting they would let me and Panditji down in the manner they were attempting to do.  In answer, Sheikh Abdullah said that he felt very grieved that I should think so but that in the discharge of his duty to his own people he found it impossible to accept our draft as it was.  I told him thereafter to go back and think over all that I had told them and hoped that he would come back to me in a better frame of mind in the course of the day or tomorrow.
 I have since thought over the matter further and dictated a draft which, without giving up the essential stands we have taken in our original draft, readjusts it in minor particulars in a way which I am hoping Sheikh Abdullah would agree to.
I discussed this draft with the Drafting Committee in the evening and one or two small suggestions which they made have been incorporated in it. I enclose a copy of this redraft as also of my letter to Sheikh Abdullah for your information.
  I trust that this will meet with your approval.
Yours sincerely,
N. Gopalaswami

The Hon’ble Sardar Vallabhbhai Patel
New Delhi
16thOctober, 1949
 
My dear Gopalaswami,
Thank you for your letter of 15 October, which I received only this afternoon on my return from the Constituent Assembly.
 I find there are some substantial changes over the original draft, particularly in regard to the applicability of fundamental rights and directive principles of State policy.  You can yourself realise the anomaly of the State becoming part of India and at the same time not recognising any of these provisions.
I do not at all like any change after our party has approved of the whole arrangement in the presence of Sheikh Sahib himself.  Whenever Sheikh Sahib wishes to back out, he always confronts us with his duty to the people.  Of course, he owes no duty to India or to the Indian Government, or even on a personal basis, to you and the Prime Minister whohave gone all out to accommodate him.
In these circumstances, any question of my approval does not arise.  If you feel it is the right thing to do, you can go ahead with it.
Sd. Patel

The ‘small suggestions’ and ‘interim  arrangement’  was  Art.370 from which was born Art.35-A, which is now occupying centre stage.  Sardar Patel is recorded to have said - as found in V. Shankar’s (ICS - Nehru’s Secretary at that time) Diary, ‘Jawahar Royega’ -  Jawahar will cry.
 Thus was born the special status for Amir-e-Khusru Dehluvi’s Kashmir.   “Agarfirdous baroye zameen ast, hami asto, hami asto hami ast”-  If there is paradise on earth, it is here, it is here, it is here.
 Is it still a Paradise? We the People arebewildered .We also don’t know whether Jawahar cried. But after Pulwama tragedy, India surely is.
 
 (Author is practising advocate in the Madras High Court)