Table of Contents
   Index
   About the Author
   Introduction
   Preface 
   Indian Federalism
   Integration of States
   Article 370
   The Constituent Assembly
   Federal Jurisdiction
   Division of Powers
   State Apart
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Chapter 7: State Apart

The exclusion of the Jammu and Kashmir State from the constitutional organization of India and its reconstitution into a separate political identity based upon the Muslim precedence had serious repercussions both inside and outside the State. Evidently, no stable and organic relationship between the Union and the State could be constructed on communal balances, which the Conference leaders sought to establish. The leaders of the National Conference, consciously sought to exclude Jammu and Kashmir from the basic structure of the Indian Constitution, which in its broad framework established a federal partnership based upon division of powers between the Union and the States; described the scope and limits of authority of state power and the nature and extent of individual liberty and freedom and envisaged protection against discrimination of grounds of religion, caste and region and laid down legal remedies against arbitrary exercise of authority. The exclusion of the State from the constitutional organization of India isolated the State from the mainstream of the Indian political development and in due course of time pushed it into a separate orbit of political operatives, which ultimately isolated it from the rest of the country.
 
The political autonomy, which the Constitution of Indian envisaged for the Indian States, was visualized by the framers of the Indian constitution, as a residue of political power and not as a function of subnational pluralism, which characterized the Indian society. The Indian provinces, which were organized within the Indian Union, by no means represented subnational identities with any distinct ethnic, cultural, religious and linguistic identity; the Indian provinces were administrative units, forged by the British, by and large, on the basis of allocations in terms of political authority. The Princely State in India as well, did not represent any subnational identities; they were political arrangements, the British Paramountcy devised to integrate their territories into the broad organization of British colonialism in India. So was the State of Jammu and Kashmir constituted, an agglomerate of distinctly disparate peoples, Muslims, Hindus and the Buddhists, ethnically, culturally, and linguistly different from each other and demographically spread over vast reaches of broken country, stretching from the outskirts of the Shivaliks to deep Himalayas of Ladakh and Baltistan.

The founding fathers of the Indian Constitution did not alter the basis of the administrative delimitation, the British Provinces underlined and where the Provinces or the States were integrated, into more viable units of Indian federal structure, the underlying principle followed was the same. The integration of the Indian States followed a process of consolidation, which was mainly political in character and determined more by geographical contiguity, administrative viability and economic advantage than the factor of ethnic, religious and cultural diversity. The Conferences leaders, however, visualized the autonomy of the State as a function of its subnational identity, which they claimed for the State on the basis of its Muslim Majority character.

There is an inherent conflict between sub-national pluralism and political autonomy. Political autonomy is a residue of political authority and therefore, complementary to national integration. Sub-national pluralism is basically a function of ethnic, cultural, religious and linguistic separatism and consequently irreconcilable to national integration and nation building. The Muslim League in India claimed a sub- national identity for the Muslims of India, which in the long run led them to opt for separation from the Indian mainland.

The demand for recognition of the National identity of the Muslims in India based upon communal balances and population proportions and religious precedence found expression in the presidential address delivered by Mohammad Iqbal to the Muslim League in 1930, that "geographically contiguous units are demarcated into region which should be so constituted, with such territorial adjustment as may be necessary, that the areas in which the Muslims are numerically in a majority as in the North Western and Eastern zones of India, should be grouped to constitute an Independent State in which the constituent units shall be autonomous and sovereign". The Muslim league, formally adopted the resolution of Pakistan in 1940, a decade after Iqbal demanded the constitution of an independent state constituted of the Muslim majority areas in India. In 1942, Mohammad Ali Jinnah claimed: "We the Muslims in India are determined to attain our national freedom and independence by establishing our own independent sovereign states in the north western and eastern parts of the subcontinent which are our homeland and where we are in a majority."

The quest for the separate identity of Jammu and Kashmir State based upon the Muslim majority character of its population followed almost the same course; the Muslim league had taken in India. As the irreconcilability between the communal balances, the National Conference sought to achieve and the imperatives of Indian unity came to surface, the Interim Government in the State disintegrated. The League demand for communal balances was supported by the British and Pakistan was created with their active connivance and help. The British were no longer the rulers in India and could not come to the support of the National Conference to enforce its claim. For sometime, Nehru accepted to recognize communal balances, the Conference leadership visualized, as the basis of the separate constitutional organization of Jammu and Kashmir. But the political arrangements, the separate constitutional organization of the State envisaged, did not last long and he readily approved the integration of the State into the constitutional organization of India. The Conference leaders, who had accepted the accession of the State to India with much reservation repudiated their commitment to the Indian unity, linked the Muslim majority character of the State with its accession and reclaimed the right of the Muslims in the State to determine its future disposition.

The Interim Government, headed by Sheikh Mohamad Abdullah was dissolved in August 1953,andasecond Interim Government headed by Bakhshi Gulam Mohamad instituted in its place. Bakhshi was not opposed to the separate identity of State on the basis of its Muslim majority character, not did he support the secular integration of the State with the rest of the country but he did nor support the first Interim Government in its demand for a separate political organization of the State placed outside the political organization India. He was also opposed to the demand of the first Interim Government to link the autonomy of the State with its accession and refused to recognise the claim Sheikh Mohamad Abdullah and a section of the National Conference leadership made, that the Muslims in the State should be given the right to determine the future disposition of the State, before any alterations in the relations between the State and the Government of India were effected.

The second Interim Government, secured the approval of the Constituent Assembly of the State, to implement the Delhi Agreement, the first Interim Government had reached with the Government of India in 1952. In May 1954, the provisions of the Constitution of India, as envisaged by the Delhi Agreement were made applicable to the Jammu and Kashmir State and the State was brought within the constitutional organization of India.

In 1955, Mirza Afzal Beg, who had been interned with Sheikh Mohammad Abdullah in August 1953, wrote to Bakhshi Gulam Mohamad from inside the jail, that Sheikh Mohammad Abdullah been dispossessed of his office by a conspiracy and demanded that he should be given an opportunity to clarify his stand in the Constituent Assembly. He was promptly released. In the Constituent Assembly, Mirza Beg delivered a frontal attack on India as well as the second Interim Government, headed by Bakhshi Gulam Mohammad, alleging that the Interim Government headed by Sheikh Mohammad Abdullah had been removed to bring about the merger of the State with India, which he and Sheikh Mohammad Abdullah opposed. Beg claimed that the accession of the State to India was subject to the approval of the Muslims in the State and so long the Muslims did not ratify it, no constitutional changes could be brought about in the special provisions, which governed the relationship between the State and India. Shortly after, Mirza Beg, founded the All Jammu and Kashmir Plebiscite Front which committed itself to secure the Muslims in the State, right to self-determination and demanded a plebiscite to determine the final disposition of the State with regard to its accession In accordance with resolutions of the United Nations.
 

The special provisions envisaged by Article 370, did not embody any safeguards for any rights, specifically the right to equality of opportunities and protection against discrimination, right to freedom and right to liberty. The Interim Government remained in power for a decade before the Constitution of Jammu and Kashmir was finally framed in 1957. The special constitutional provisions envisaged by Article 370 were modified in 1954, and various rights envisaged by the Constitution of India were made available to the people of the State in a restricted measure. But the relief fell far short of the rights the people in the rest of the country enjoyed, Most of the rights extended to the State were hollowed of their pith and substance by the exceptions and reservations they were subject to. The right of the State Legislature to frame and construct rules and regulations to regulate the rights; the unfettered power and discretion to impose restrictions on the rights and determine the reasonability of such restrictions vested with the State Government and the overriding operatives placed upon legal remedies and due process of law, left the rights with little significance and scope.

Except for its redundant stipulations that the rights and relevant safeguards envisaged by the Constitution of India were available to the people in the State, the Constitution of Jammu and Kashmir provided no alternate safeguards. For decades the partial application of the fundamental rights deprived the people in the State of their rights to equality and protection against discrimination and the rights to freedom and personal liberty.

The quest for Muslim identity based upon the Muslim Majority character of the State conflicted with the secular integration of the Indian people, the Constitution of India envisaged the communal balances which the Interim Government enforced, alienated the minorities, a little less than half the population of the State, from the National Conference and drove the Muslims to seek fresh guarantees to safeguard their isolation from India. As the years went by the contradiction sharpened and ultimately broke up the National Conference. With that was dissolved the support base; India had bought at a price, which had cost their freedom the people of the State, who were not Muslims.

 

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