Prof Hari Om
It is widely believed that J&K came in for discussion in the Indian Constituent Assembly only on 17 October 1949. That day, Article 306-A (Article 370) was adopted and the state was permitted to have a special relationship with the Union Government. This assessment is partially correct.A scrutiny of the proceedings of the Constituent Assembly reveals that the issues concerning J&K were discussed twice – first on 27 May 1949, and again on 17 October 1949. It also shows that the focus on 27 May was far sharper and more revealing than it was on 17 October. Article 370 was designed to give J&K the right to have its own constitution and a flag, other than the national flag.The Article was adopted in no time; despite the fact that a Muslim member of the Constituent Assembly, Maulana Hasrat Mohani, had warned that the grant of special status to Kashmir (on the score of religion) would enable it to ‘assume independence afterwards.’ (Constituent Assembly Debates, Book No 5, Vol. Nos. X-XII, 6 Oct 1949 to 24 Jan 1950, reprinted by Lok Sabha Secretariat, New Delhi, Second Edition, 1989, p. 428).It would be interesting to reflect on 27 May discussion, which is less known but is equally relevant- something that kept the Constituent Assembly engrossed in squabbles and tortuous discussions for hours together. Such an exercise is imperative to understand the reasons behind the 73-year-old complaints of people of Jammu that ‘they have no place whatsoever in country’s policy’ and that ‘it is New Delhi which is responsible for their socio-cultural and politico-economic degeneration and under-development’.In October 1947, when J&K acceded to Indian Dominion, it was hoped that the Congress Government at the Centre would recognise the natural right of the people of the state to return representatives of their choice to Indian Constituent Assembly. This hope stemmed from the Congress Working Committee resolution (17-18 June 1934) as well as April 1936 resolution adopted by the Congress at its Lucknow session.The 1934 resolution had told the British Government in clear terms that ‘the Constitution must be framed by a Constituent Assembly elected on an adult franchise or a franchise which approximated to it as nearly as possible’. As for the one adopted at Lucknow, it had rejected the Indian Councils Act of 1935 as ‘a charter of bondage’ and declared that no Constitution ‘imposed by an outside authority and no Constitution which curtails the sovereignty of the people can be accepted’.The belief of the people of J&K was that they would have a real say in the matter. This belief was further strengthened in 1946 when Congress urged the Cabinet Mission to permit all male and female adults to elect the Indian Constituent Assembly and to accept Muslim League’s sectarian demand, which sought election on the basis of a separate register (suggestion not accepted).Paradoxically, the people of J&K could not send representatives of their choice to the Constituent Assembly. The Congress dominated Constituent Assembly did not involve people of the state in the process of Indian Constitution-making nor did it follow those election rules, which 1946 Cabinet Mission Plan had laid down for the princely states. On the contrary, it vouched for a formula which was nothing but a negation of what the Congress had supported. It only pleased one person- Sheikh Abdullah and his religio-political formation, the National Conference (NC).How else would one interpret the adoption of the motion on 27 May 1949, moved by the Minister of Kashmir Affairs, Gopalaswami Ayyangar, and the speech he made while introducing it? The motion read, ‘Notwithstanding anything contained in paragraph 4 of the Constituent Assembly Rules all the seats in the Assembly allotted to the State of Kashmir may be filled by nomination and the representatives of the State to be chosen to fill such seats may be nominated by ruler of Kashmir (read Maharaja Hari Singh) on the advice of his Prime Minister’.Ayyangar’s speech further said, “We have to choose a method by which we could get representatives into this Assembly. We are today in a position to bring to this House four persons who could be said to be fairly representative of the population of Kashmir (Jammu omitted from nomenclature of state). The point that I wish to urge is that, while two of the representatives would in any case under the present rules be persons who could be nominated by a ruler, we are suggesting that all the four persons should be nominated by the ruler on the advice of his Prime Minister (read Sheikh Abdullah). The Prime Minister happens to represent the largest political party in the State. Apart from that, we have got to remember that the Prime Minister and his government (NC Government) are not based upon the Jammu and Kashmir Praja Sabha (Legislative Assembly) but based rather on fact that they represent the largest political party. Therefore, it is only appropriate that the head of this party, who is also the Prime Minister, should have the privilege of advising the ruler as to who would be proper representatives of Kashmir in the Constituent Assembly”.This motion generated a lot of heat in the Constituent Assembly, which debated this issue for hours as objections after objections were raised against the suggested formula. Members of the Assembly such as Pandit Lakshmi Kanta Maitra (West Bengal), H V Kamath (CP and Berar) and K T Shah (Bihar) vehemently opposed the formal motion on five counts.One, it provided for a mechanism which was not in conformity with ‘such rules as contained in Rule 4 of the Constituent Assembly Rules.’ According to Rule 4, the seats allotted to the princely states had to be filled by not less than half by the elected members of the legislature of the states concerned and the remainder to be nominated by ruler himself.Two, it made an unjust and invidious distinction between Jammu and Kashmir and other princely states.Three, it was designed to empower only one individual, Sheikh Abdullah, to take a decision on who should or should not represent the state in the Constituent Assembly, as also the future politico-constitutional ties between the state and New Delhi.Four, the motion was, undoubtedly, designed to render the people and their elected Assembly ineffective.Five, it had the potential of harming Indian interests in Kashmir and giving cause to the forces inimical to the country, to challenge its stand that the people of the state were solidly behind it.(To be continued)
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