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.
|
Download Book
