JAMMU AND KASHMIR

Article 370: Law and politics

While the Constitution recognises in Article 370 the special status of Jammu and
Kashmir, the Central Government's policies since 1953 have totally undermined
its autonomy. Senior lawyer and political analyst A.G. NOORANI discusses both
aspects and suggests a way out of the mess.

"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..."
"We have fought the good fight about Kashmir on the field of battle... (and) ...in many
a chancellery of the world and in the United Nations, but, above all, we have fought
this fight in the hearts and minds of men and women of that State of Jammu and
Kashmir. Because, ultimately - I say this with all deference to this Parliament - the
decision will be made in the hearts and minds of the men and women of Kashmir;
neither in this Parliament, nor in the United Nations nor by anybody else,"
Jawaharlal N ehru said in the Lok Sabha on June 26 and August 7, 1952.

- Selected works of Jawaharlal Nehru, Vol. 18, p. 418 and

vol. 19 pp. 295-6, respectively.

"From 1953 to 1975, Chief Ministers of that State had been nominees of Delhi. Their
appointment to that post was legitimised by the holding of farcical and totally rigged
elections in which the Congress party led by Delhi's nominee was elected by huge
majorities."

- This authoritative description of a blot on our record which most overlook was
written by B. K. Nehru, who was Governor of Kashmir from 1981 to 1984, in his
memoirs published in 1997 (Nice Guys Finish Second; pp. 614-5).

THOSE who cavil at Article 370 of the Indian Constitution and the "special status" of
Kashmir constitutionally ought to remember the "special" treatment meted out to
it politically. Which other State has been subjected to such debasement an d
humiliation? And, why was this done? It was because New Delhi had second thoughts
on Article 370. It could not be abrogated legally. It was reduced to a husk through
political fraud and constitutional abuse. The current debate is much more than about
restoration of Article 370 by erasing the distortions. It is about redressing
a moral wrong.
The United Front government's minimum programme, published on June 5, 1996, said
"respecting Article 370 of the Constitution as well as the wishes of the people, the
problems of Jammu and Kashmir will be resolved through giving the people of that
State t he maximum degree of autonomy."

Constitutional abuse accompanied political fraud. Article 370 was

intended to guarantee Kashmir's autonomy. On December 4, 1964,
Union Home Minister G. L. Nanda said it would be used to serve as "a
tunnel (sic.) in the wall" in order to increase the Cent re's power.

The State was put in a status inferior to that of other States. One
illustration suffices to demonstrate that. Parliament had to amend the
Constitution four times, by means of the 59th, 64th, 67th and 68th Constitution
Amendments, to extend the President's Rule imposed in Punjab on May 11, 1987. For
the State of Jammu and Kashmir the same result was accomplished, from 1990 to
1996, by mere executive orders under Article 370.

Another gross case illustrates the capacity for abuse. On July 30, 1986, the President
made an order under Article 370, extending to Kashmir Article 249 of the Constitution
in order to empower Parliament to legislate even on a matter in the State List on the
strength of a Rajya Sabha resolution. "Concurrence" to this was given by the Centre's
own appointee, Governor Jagmohan. G.A. Lone, a former Secretary, Law and
Parliamentary Affairs, to the State Government described in Kashmir Times (April
20 , 1995) how the "manipulation" was done "in a single day" against the Law
Secretary's advice and "in the absence of a Council of Ministers."

The Nehru-Abdullah Agreement in July 1952 ("the Delhi Agreement") confirmed that
"the residuary powers of legislation" (on matters not mentioned in the State List or the
Concurrent List), which Article 248 and Entry 97 (Union List) confer on the Union, w
ill not apply to Kashmir. The order of 1986 purported to apply to the State Article 249,
which empowers Parliament to legislate even on a matter in the State List if a Rajya
Sabha resolution so authorises it by a two-thirds vote. But it so amended Article 249
in its application to Kashmir as in effect to apply Article 248 instead - "any matter
specified in the resolution, being a matter which is not enumerated in the Union List
or in the Concurrent List."

The Union thus acquired the power to legislate not only on all matters in the State
List, but others not mentioned in the Union List or the Concurrent List - the residuary
power. In relation to other States, an amendment to the Constitution would require a
two-thirds vote by both Houses of Parliament plus ratification by the States (Article
368). For Kashmir, executive orders have sufficed since 1953 and can continue till
Doomsday. "Nowhere else, as far as I can see, is there any provision author ising the
executive government to make amendments in the Constitution," President Rajendra
Prasad pointed out to Prime Minister Nehru on September 6, 1952. Nowhere else, in
the world, indeed. Is this the state of things we wish to perpetuate? Uniquely Ka shmir
negotiated the terms of its membership of the Union for five months. Article 370 was
adopted by the Constituent Assembly as a result of those parleys.

YET, all hell broke loose when the State Assembly adopted, on June 26, a resolution
recording its acceptance of the report of the State Autonomy Committee (the Report)
and asked "the Union Government and the Government of Jammu and Kashmir to
take positi ve and effective steps for the implementation of the same." On July 4, the
Union Cabinet said that the resolution was "unacceptable... would set the clock back
and reverse the natural process of harmonising the aspirations of the people of Jammu
& Kashmi r with the integrity of the State" - a patent falsehood, as everyone knows.

The State's Law Minister, P.L. Handoo, said on June 26 that the people "want nothing
more than what they had in 1953." Overworked metaphors (about the clock or the
waters of the Jhelum which flowed since) do not answer two crucial questions: Can
lapse of time sanctify patent constitutional abuse? Can it supply legislative
competence? If Parliament has legislated over the States on a matter on which it had
no power to legislate, under the Constitution, it would be a nullity. Especially if the
State's peo ple have been protesting meanwhile and their voice was stifled through
rigged elections.

Disapproval of Chief Minister Farooq Abdullah's opportunist politics should not blind
one to the constitutional issues. The State's Finance Minister, Abdul Rahim Rather, a
moving spirit behind the Report, resents suggestions of political timing. The repo rt
was placed before the Assembly on April 13, 1999. The State Cabinet endorsed its
recommendations and decided last April to convene a special session of the Assembly
to discuss it. The Government of India was "once again requested to set up a ministeri
al committee in order to initiate a dialogue on the report."

It provides a comprehensive survey of constitutional developments, which is useful in

itself for its documentation. It lists 42 orders under Article 370 and gives the
following opinion: "Not all these orders can be objected to. For instance, none can obj
ect to provisions for direct elections to Parliament in 1966... It is the principle that
matters. Constitutional limits are there to be respected, not violated."

The ruler of Jammu and Kashmir acceded to India by an Instrument of Accession on

October 26, 1947 in respect of only three subjects - defence, foreign affairs and
communications. A schedule listed precisely 16 topics under these heads plus four
others (e lections to Union legislature and the like).

Clause 5 said that the Instrument could not be altered without the State's consent.
Clause 7 read: "Nothing in this Instrument shall be deemed to commit me in any way
to acceptance of any future Constitution of India or fetter my discretion to enter into
arrangements with the Government of India under any such future Constitution."
Kashmir was then governed internally by its own Constitution of 1939.

The Maharaja made an Order on October 30, 1947 appointing Sheikh Abdullah the
Head of the Emergency Administration, replacing it, on March 5, 1948, with an
Interim Government with the Sheikh as Prime Minister. It was enjoined to convene a
National Assemb ly "to frame a Constitution" for the State.

Negotiations were held on May 15 and 16, 1949 at Vallabhbhai Patel's residence in
New Delhi on Kashmir's future set-up. Nehru and Abdullah were present. Foremost
among the topics were "the framing of a Constitution for the State" and "the subjects
in res pect of which the State should accede to the Union of India." On the first, Nehru
recorded in a letter to the Sheikh (on May 18) that both Patel and he agreed that it was
a matter for the State's Constituent Assembly. "In regard to (ii) the Jammu and Kas
hmir State now stands acceded to the Indian Union in respect of three subjects;
namely, foreign affairs, defence and communications. It will be for the Constituent
Assembly of the State when convened, to determine in respect of which other subjects
th e State may accede" (emphasis added, throughout). Article 370 embodies this basic
principle which was reiterated throughout (S.W.J.N. Vol. 11; p. 12).

On June 16, 1949, Sheikh Abdullah, Mirza Mammad Afzal Beg, Maulana Mohammed
Saeed Masoodi and Moti Ram Bagda joined the Constituent Assembly of India.
Negotiations began in earnest on Article 370 (Article 306. A in the draft). N.
Gopalaswamy Ayyangar tri ed to reconcile the differences between Patel and
Abdullah. A text, agreed on October 16, was moved in the Constituent Assembly the
next day, unilaterally altered by Ayyangar. "A trivial change," as he admitted in a letter
to the Sheikh on October 18. Pa tel confirmed it to Nehru on November 3 on his
return from the United States. Beg had withdrawn his amendment after the accord.
Abdullah and he were in the lobby, and rushed to the House when they learnt of the
change. In its original form the draft woul d have made the Sheikh's ouster in 1953
impossible.

ARTICLE 370 embodies six special provisions for Jammu and Kashmir. First, it
exempted the State from the provisions of the Constitution providing for the
governance of the States. Jammu and Kashmir was allowed to have its own
Constitution within the Indi an Union.
Second, Parliament's legislative power over the State was restricted to three subjects -
defence, external affairs and communications. The President could extend to it other
provisions of the Constitution to provide a constitutional framework if they rel ated to
the matters specified in the Instrument of Accession. For this, only "consultation" with
the State government was required since the State had already accepted them by the
Instrument. But, third, if other "constitutional" provisions or other Unio n powers
were to be extended to Kashmir, the prior "concurrence" of the State government was
required.

The fourth feature is that that concurrence was provisional. It had to be ratified by the
State's Constituent Assembly. Article 370(2) says clearly: "If the concurrence of the
Government of the State... be given before the Constituent Assembly for the pu rpose
of framing the Constitution of the State is convened, it shall be placed before such
Assembly for such decision as it may take thereon."

The fifth feature is that the State government's authority to give the "concurrence"
lasts only till the State's Constituent Assembly is "convened". It is an "interim" power.
Once the Constituent Assembly met, the State government could not give i ts own
"concurrence". Still less, after the Assembly met and dispersed. Moreover, the
President cannot exercise his power to extend the Indian Constitution to Kashmir
indefinitely. The power has to stop at the point the State's Constituent Assembly draft
ed the State's Constitution and decided finally what additional subjects to confer on
the Union, and what other provisions of the Constitution of India it should get
extended to the State, rather than having their counterparts embodied in the State
Const itution itself. Once the State's Constituent Assembly had finalised the scheme
and dispersed, the President's extending powers ended completely.

The sixth special feature, the last step in the process, is that Article 370(3) empowers
the President to make an Order abrogating or amending it. But for this also "the
recommendation" of the State's Constituent Assembly "shall be necessary before the
President issues such a notification".

Article 370 cannot be abrogated or amended by recourse to the amending provisions

of the Constitution which apply to all the other States; namely, Article 368. For, in
relation to Kashmir, Article 368 has a proviso which says that no constitutional amend
ment "shall have effect in relation to the State of Jammu and Kashmir" unless applied
by Order of the President under Article 370. That requires the concurrence of the
State's government and ratification by its Constituent Assembly.

Jammu and Kashmir is mentioned among the States of the Union in the First Schedule
as Article 1 (2) requires. But Article 370 (1) (c) says: "The provisions of Article 1 and
of this Article shall apply in relation to that State". Article 1 is thus appl ied to the
State through Article 370. What would be the effect of its abrogation, as the Bharatiya
Janata Party demands?

Ayyangar's exposition of Article 370 in the Constituent Assembly on October 17, 1949
is authoritative. "We have also agreed that the will of the people through the
instrument of the Constituent Assembly will determine the Constitution of the State as
wel l as the sphere of Union jurisdiction over the State... You will remember that
several of these clauses provide for the concurrence of the Government of Jammu and
Kashmir State. Now, these relate particularly to matters which are not mentioned in
the Ins trument of Accession, and it is one of our commitments to the people and
Government of Kashmir that no such additions should be made except with the
consent of the Constituent Assembly which may be called in the State for the purpose
of framing its Co nstitution."

Ayyangar explained that "the provision is made that when the Constituent Assembly
of the State has met and taken its decision both on the Constitution for the State and
on the range of federal jurisdiction over the State, the President may, on the recomm
endation of that Constituent Assembly, issue an Order that this Article 306 (370 in the
draft) shall either cease to be operative, or shall be operative only subject to such
exceptions and modifications as may be specified by him. But before he issued an y
order of that kind, the recommendation of the Constituent Assembly will be a
condition precedent."
THE HINDU PHOTO LIBRARY
Prime Minister Jawaharlal Nehru with Sheikh
Abdullah.

This unique process of Presidential Orders altering

constitutional provisions by a mere executive order ends
with the final decision of the State's Constituent Assembly.
Ayyangar repeatedly said that the State government's
concurrence alone will not do. "That concurrence should
be placed before the Constituent Assembly when it meets
and the Constituent Assembly may take whatever
decisions it likes on those matters." (Constituent Assembly Debates; Vol. 8; pp. 424-
427).

In 1949, no one knew when Kashmir's Constituent Assembly would be elected.

Ayyangar therefore said: "The idea is that even before the Constituent Assembly
meets, it may be necessary... that certain items which are not included in the
Instrument of Access ion would be appropriately added to that list in the Instrument...
and as this may happen before the Constituent Assembly meets, the only authority
from whom we can get consent for the addition is the Government of the State." This
was explicitly only for that interim period.

Article 370 (1) (b) is clear. "The power of Parliament to make laws for the said State
shall be limited to" (1) matters in the Union and Concurrent Lists corresponding to the
broad heads specified in the Instrument of Accession "and (ii) such other matte rs in
the said Lists as, with the concurrence of the Government of the State the President
may by Order specify". An Explanation defined "the Government of the State".
Similar "concurrence" was required when extending provisions regarding Union
instituti ons beyond the agreed ones. But Article 370 (2) stipulated clearly that if that
concurrence is given "before the Constituent Assembly... is convened, it shall be
placed before such Assembly for such decision as it may take thereon".

Once Kashmir's Constituent Assembly was "convened" on November 5, 1951, the

State Government lost all authority to accord its "concurrence" to the Union. With the
Assembly's dispersal on November 17, 1956, after adopting the Constitution of
Jammu and Kas hmir, vanished the only authority which alone could cede: (a) more
powers to the Union and (b) accept Union institutions other than those specified in the
Instrument of Accession. All additions to Union powers since then are
unconstitutional. This unders tanding informed decisions - right until 1957.

THE Constituent Assembly of India adopted the Constitution on November 26, 1949.
A day earlier, the ruler of Kashmir made a Proclamation declaring that it "shall in so
far as it is applicable to the State of Jammu and Kashmir, govern the constitutional r
elationships between this State and the contemplated Union of India". Article 370 is
more than a provision of that solemn document. It is also a sacred compact with the
State. On January 26, 1950, the President made his first Order under Article 370, ext
ending specified provisions of the new Constitution to the State.

On April 20, 1951, the ruler made a Proclamation for convening the State's
Constituent Assembly. It met on November 5, 1951. Two issues came to the fore.
Nehru was eager to secure Kashmir's "closer integration" with India; the Sheikh to
ensure popular go vernance. The Delhi Agreement that followed was announced at a
press conference in Delhi on July 24, 1952 by both. This Union-Centre accord had no
legal force by itself. Only an Order under Article 370 could confer that - after the
Sheikh gave his "concu rrence" formally.

The Sheikh, meanwhile, pressed for an Order to redraft "the Explanation" in Article
370 redefining the State government as one headed by an elected "Sadar-i-Riyasat
(State President)... acting on the advice" of his Ministers.
As for the Sheikh's request, Nehru wrote on July 29, 1952: "It is not a perfectly clear
matter from the legal point of view how far the President can issue notifications under
Article 370 several times." On September 6, 1952, President Rajendra Prasad po inted
out the illegality of such a course in a closely reasoned Note. (It is appended to the
Report.) He questioned "the competence of the President to have repeated recourse to
the extraordinary powers conferred on him" by Article 370. "Any provi sion
authorising the executive government to make amendments in the Constitution" was
an incongruity. He endorsed Ayyangar's views on the finality of a single Order under
Article 370. "I have little doubt myself that the intention is that the power is to be
exercised only once, for then alone would it be possible to determine with precision
which particular provisions should be excepted and which modified."

The President concluded: "The conclusion, therefore, seems to me to be irresistible

that Clause (3) of Article 370 was not intended to be used from time to time as
occasion required. Nor was it intended to be used without any limit as to time. The
correc t view appears to be that recourse is to be had to this clause only when the
Constituent Assembly (sic) (Constitution) of the State has been fully framed." That
was over on November 17, 1956. But he yielded to Nehru's pressure and made the
Order on Novem ber 15, 1952.

Events took a tragic course. The Sheikh was dismissed from office and imprisoned on
August 9, 1953 (vide the writer's article, How and Why Nehru and Abdullah Fell
Out": Economic and Political Weekly; January 30, 1999). On May 14, 1954 came a
compr ehensive Presidential Order under Article 370. Although it was purported to
have been made with the "concurrence" of the State government it drew validity from
a resolution of the Constituent Assembly on February 15, 1954 which approved
extension to the State of some provisions of the Constitution of India. The Order
sought to implement the Delhi Agreement. The Report makes two valid points. Why
the haste since the State's Constitution was yet to be framed? Besides, the order in
some respects went beyon d the Delhi Agreement. It certainly paved the way for more
such Orders - all with "the concurrence of the State Government", each elected
moreover in a rigged poll. Ninetyfour of the 97 Entries in the Union List and 26 of the
47 in the Concurrent List we re extended to Kashmir as were 260 of the 395 Articles
of the Constitution.

Worse, the State's Constitution was overridden by the Centre's orders. Its basic
structure was altered. The head of State elected by the State legislature was replaced
by a Governor nominated by the Centre. Article 356 (imposition of President's Rule)
wa s applied despite provision in the State's Constitution for Governor's rule (Section
92). This was done on November 21, 1964. On November 24, 1966, the Governor
replaced the Sadar-i-Riyasat after the State's Constitution had been amended on April
10, 196 5 by the 6th Amendment in violation of Section 147 of the Constitution.
Section 147 makes itself immune to amendment. But it referred to the Sadar-i-Riyasat
and required his assent to constitutional amendments. He was elected by the Assembly
[Section 27 (2)]. To replace him by the Centre's nominee was to alter the basic
structure.

Article 370 was used freely not only to amend the Constitution of India but also of the
State. On July 23, 1975 an Order was made debarring the State legislature from
amending the State Constitution on matters in respect of the Governor, the Election
Co mmission and even "the composition" of the Upper House, the Legislative
Council.

It would be legitimate to ask how all this could pass muster when there existed a
Supreme Court of India. Three cases it decided tell a sorry tale. In Prem Nath Kaul vs
State of J&K, decided in 1959, a Constitution Bench consisting of five judges
unanimously held that Article 370 (2) "shows that the Constitution-makers attached
great importance to the final decision of the Constituent Assembly, and the
continuance of the exercise of powers conferred on the Parliament and the President
by t he relevant temporary provision of Article 370 (1) is made conditional on the
final approval by the said Constituent Assembly in the said matters". It referred to
Clause 3 and said that "the proviso to Clause (3) also emphasises the importance whi
ch was attached to the final decision of Constituent Assembly of Kashmir in regard to
the relevant matters covered by Article 370". The court ruled that "the Constitution-
makers were obviously anxious that the said relationship should be finally d
etermined by the Constituent Assembly of the State itself."

But, in 1968, in Sampat Prakash vs the State of J&K, another Bench ruled to the
contrary without even referring to the 1959 case. Justice M. Hidayatullah sat on both
Benches. The court held that Article 370 can still be used to make orders thereunder
despite the fact that the State's Constituent Assembly had ceased to exist.

FOUR BASIC flaws stand out in the judgment. First, the Attorney-General cited
Ayyangar's speech only on the India-Pakistan war of 1947, the entanglement with the
United Nations and the conditions in the State. On this basis, the court said, in 1968,
that "the situation that existed when this Article was incorporated in the Constitution
has not materially altered," 21 years later. It ignored completely Ayyangar's exposition
of Article 370 itself; fundamentally, that the Constituent Assembly of Kashmir al one
had the final say.

Secondly, it brushed aside Article 370 (2) which lays down this condition, and said
that it spoke of "concurrence given by the Government of State before the Constituent
Assembly was convened and makes no mention at all of the completion" of its work
or its dissolution.

The supreme power of the State's Constituent Assembly to ratify any change, or refuse
to do so, was clearly indicated. Clause (3) on the cessation of Article 370 makes it
clearer still. But the court picked on this clause to hold that since the Assembly had
made no recommendation that Article 370 be abrogated, it should continue. It, surely,
does not follow that after that body dispersed the Union acquired the power to amass
powers by invoking Article 370 when the decisive ratificatory body was gone.

Thirdly, the Supreme Court totally overlooked the fact that on its interpretation,
Article 370 can be abused by collusive State and Central Governments to override the
State's Constitution and reduce the guarantees to naught. Lastly, the court misconstru
ed the State Constituent Assembly's recommendation of November 17, 1952, referred
to earlier, which merely defined in an explanation "the Government of the State". To
the court this meant that the Assembly had "expressed its agreement to the continued
op eration of this Article by making a recommendation that it should be operative with
this modification only." It had in fact made no such recommendation. The Explanation
said no more than that "for the purposes of this Article, the Government of the State
means..." It does not, and indeed, cannot remove the limitations on the Central
Government's power to concurrence imposed by Clause (2); namely ratification by the
Constituent Assembly.

The court laid down no limit whatever whether as regards the time or the content. "We
must give the widest effect to the meaning of the word 'modification' used in Article
370 (1)". The net result of this ruling was to give a carte blanche to the Government
of India to extend to Kashmir such of the provisions of the Constitution of India as it
pleased.

In 1972, in Mohammed Maqbool Damnoo vs the State of J & K, another Bench blew
sky high the tortuous meaning given to the Explanation. It was a definition which had
become "otiose". But this Bench also did not refer to the 1959 ruling. Cases there are,
albeit rare, when courts have overlooked a precedent. But that is when there is a
plethora of them. Article 370 gave rise only to three cases. The first was studiously
ignored in both that followed. The court found no difference between an elected S
adar and an appointed Governor. "There is no question of such a change being one in
the character of that government from a democratic to a non-democratic system." If
the Constitution of India is amended to empower the Prime Minister to nominate the
Pres ident as Sri Lanka's 1972 Constitution did - would it make no difference to its
democratic character, pray? To this Bench "the essential feature" of Article 370 (1) (b)
and (d) is "the necessity of the concurrence of the State Government", not the Consti
tuent Assembly. This case was decided before the Supreme Court formulated in 1973
the doctrine of the unamendable basic structure of the Constitution.

GIVEN their record, whenever Kashmir is involved, how can anyone ask Kashmiris
to welcome Union institutions (such as the Election Commission) with warmth?

Sheikh Abdullah had no cards to play when he concluded an Accord with Indira
Gandhi and became Chief Minister on February 24, 1975. At the outset, on August 23,
1974, he had written to G. Parthasarathy: "I hope that I have made it abundantly clear
to you that I can assume office only on the basis of the position as it existed on August
8, 1953." Judgment on the changes since "will be deferred until the newly elected
Assembly comes into being". On November 13, 1974, G.P. and M.A. Beg signed
"agreed concl usions" - Article 370 remained; so did the residuary powers of
legislation (except in regard to anti-national acts); Constitutional provisions extended
with changes can be "altered or repealed"; the State could review Central laws on
specified topics (we lfare, culture, and so on) counting on the Centre's "sympathetic
consideration"; a new bar on amendment to the State Constitution regarding the
Governor and the E.C. Differences on "nomenclature" of the Governor and Chief
Minister were "remitted to the p rincipals". Differences persisted on the E.C., Article
356 and other points. On November 25, the Sheikh sought a meeting with Prime
Minister Indira Gandhi. Her reply not only expressed doubt on the usefulness of talks
but also on his commitment to "the b asic features of the State's Constitution" and to
"the democratic functioning" of the government. Hurt, he wrote back ending the
parleys. They met at Pahalgam. An exchange of letters, on February 12, 1975,
clinched the deal on the basis of the Agreed Con clusions.

This was a political accord between an individual, however eminent, and the
Government, like the Punjab Accord (July 24, 1985); the Assam Accord (August 15,
1985); the Nagaland Accord (November 11, 1975); and the Mizoram Accord (June 30,
1986) - e ach between the government and the opposition. It cannot override Article
370; still less sanctify Constitutional abuse. It bound the Sheikh alone and only until
1977.

This was explicitly an accord on "political cooperation between us", as Indira Gandhi
wrote (December 16, 1974). On February 12, 1975, Abdullah recorded that it provided
"a good basis for my cooperation at the political level". In Parliament on March 3,
1975 she called it a "new political understanding". He was made Chief Minister on
February 24, backed by the Congress' majority in the Assembly and on the
understanding of a fresh election soon. Sheikh Abdullah's memoirs Aatish-e-
Chinar (Urdu) rec ord her backtracking on the pledge and the Congress' perfidy in
March 1977 when she lost the Lok Sabha elections. It withdrew support and staked a
claim to form a government. Governor's Rule was imposed. The Sheikh's National
Conference won the elections with a resounding majority on the pledge to restore
Jammu and Kashmir's autonomy, which was also Farooq's pledge in 1996. The 1975
accord had collapsed.

It was, I can reveal, based on gross error. The Agreed Conclusions said (Para 3): "But
provisions of the Constitution already applied to the State of J&K without adaptation
or modification are unalterable." This preposterous assertion was made in the tee th of
the Sampat Prakash case. One order can always be rescinded by another. All the
orders since 1954 can be revoked; they are a nullity anyway. Beg was precariously ill
and relied on advice which GP's "expert" had given him. He was one S. Balakr ishnan
whom R.Venkataraman refers to as "Constitutional Adviser in the Home Ministry" in
his memoirs. It is no disrespect to point out that issues of such complexity and
consequence are for counsel's opinion; not from a solicitor, still less a bureaucrat even
if he had read the law. Even the Law Secretary would have insisted on the Attorney-
General's opinion. Amazed at what Beg had told me in May 1975, I pursued the
matter and eventually met Balakrishnan in 1987. He confirmed that he had, indeed,
given such advice. It was palpably wrong. The 1975 Accord is worse than useless. It is
harmful to the State's rights and interests. It has neither legal efficacy nor moral worth.

THE OTHER SIDE OF HISTORY

Without studying historical events on their merit, it is not fair

to blame Sheikh Muhammad Abdullah for the tragedy that
befell us. We need to have an objective approach towards
history with a particular reference to the man who is accused
of the crimes that others committed, writes M A Murtaza.

Is Kashmir problem due to Accession to India on 26-10-1947 or

the continuum of over four hundred years of transitoriness since
1540 A.D when first gruesome assault on our sovereignty was
made towards the absolute capacity that we were taken into the
year 1588 A.D?
Agha Shahid Ali has the answer:
“And will the blessed women rub the ashes together? Each fall
they gather chinar leaves singing what the hills have reechoed for
four hundred years, the songs of Habba Khatun, the peasant girl
who became the queen. When her husband was exiled from the
valley by the Mughal King Akbar, she went among the people
with her sorrow. Her grief, alive to this day, in her own roused the
people into frenzied opposition to Mughal rule. And since then
Kashmir has never been free”.
Our opposition to Mughal, Sikh, Dogra and New Delhi rule is
our valor and resolve of which we as an uncommon nation, that
thrives under oppression and suppression, should be proud of.
History is witness to the fact that Kashmiris never reconciled to
the outside rule since the fall of Chaks. In the process there was
and still there is no dearth of demagogues, imposters and persons
behind smokescreen by whose treacherous manipulation one
revolution gave rise to another and there was uprising in every
rule since the time of our enslavement.
In 1947, we made tryst with destiny just to escape another
occupation by Afghans. But this decision also proved disastrous,
for the pledge and promise given to us was never redeemed. Thus
at least Delhi Darbar should respect that we are not asking for
freedom for the first time in history. It is our legitimate demand
since 1588. Amazingly our first oppressor was a Muslim.
Strange it looks to observe that the persons responsible much
more than Sheikh Abdullah are not being discussed. Their graves
are not under vigil. Even under vigil the Sheikh’s grave is still
depicting our captivity of being under constant vigil that every
Kashmiri patriot is facing. Here comes the role of Sheikh
Muhammad Abdullah in 1947. To the chagrin of many, mostly
intellectuals, he was a chosen victim, always, of betrayal after
betrayal by both his friends and foes. And over the years of
suppression, consequences that followed culminated in the
present uprising that should teach anyone a lesson, if prepared to
listen and learn. But that is not happening. Thus how far Sheikh
Muhammad Abdullah’s responsibility in the matter of Accession
gets established, I leave it to reader after going through a hand
written letter by Meher Chand Mahajan whose role in the
holocaust of 1947 (Jammu) is known and by courtesy of A.R. Dar
Ex. Chairman legislative council Mahajan’s portrait fixed along
with other dignitaries on the wall of council. The letter is dater
20-12-1947 and addressed to Sardar Patel then Deputy Prime
Minister India and it reads as under:

Prime Minister Jammu and Kashmir 20-12-1947

My Dear Sardar Patel Ji,
“Here with a copy of the letter of Sheikh Abdullah which he
wrote to H.H. before his release. The original signed by him is
with me.
His steadfast loyalty has now evaporated when he wants trial of
H.H before people’s tribunal for ‘Muslim Massacres’ and also
wants his abdication. Taking advantage of his position, he is
ignoring and bypassing H.H in every matter.
Yesterday he came to the palace for tea and discussed his terms
on which settlement should be made with Pakistan. It seems he
has been invited by Pandithji for the meeting of 22nd. He said he
had met the leader of Muslim conference in jail and both of them
were prepared to settle if the independence of Kashmir is
guaranteed by both the domains. With a democratic government
Kashmir should be like Switzerland. I and H.H said it would be,
alright if we were independent as we were not prepared to dissent
on the subject.”
Mahajan was exemplary in the art of double dealing. While
referring to the letter of Sheikh Abdullah which stands also
quoted by Jagmohan in his book, My Frozen Turbulence like
Jaqmohan Mahajan does not quote the letter truthfully. Sheikh
Abdullah’s steadfast loyalty to Maharaja was not to a person but
to the cause for making Kashmir an independent state. Certainly
not an apology as some jurist and thinkers interpret factually not
so. And in the art of double dealing, Mahajan’s letter continues:
“The truth of the matter is that Moslems whether leagues’ or of
the National conference in Kashmir want Moslem domination and
it thus can help extinction of Hindu Raj. Abdullah has said in an
interview that Kashmir should be a republic, obviously a Moslem
state behind this independence move. My view is that the only
salvation of Kashmir and the dynasty of H.H lies in its accession
with Indian domain and no other. Even the peace of East Punjab
depends on the accession of Kashmir with Indian domain. There
should be no compromise on that subject. No one really wants
plebiscite. Abdullah bluffs about it and is very confident but I can
say positively he doesn’t want it. Pakistan asks for it but does not
want it. H.H doesn’t want it. But cause is to push on the fight and
turn out the raiders and you can easily do it and then you can
settle on your own terms. Then Moslem party would be prepared
to join coalition with Abdullah and Hindus, and this would
strengthen H.H’s position once it is settled that it is to remain
acceded to the India domain i.e. it is to remain in your charge.
With Kindest regard”
Kashmir to become a republic or like Switzerland—that was the
intent behind launching of Quit Kashmir Movement, not alone
scrapping of the treaty of Amritsar. And more than that scrapping
of the treaty between Yousuf Chak and Akbar which the treaty
repeated in the same manner in history, in July agreement.
However due to tribal intervention (Oct. 1947) Quit Kashmir
Movement got consigned to the back waters of history to the
unexpected fortune of Nehru who was over possessive in his
tribal love for Kashmir. Tribal intervention qualified everything
but for the application of mind strategically and politically as
well.
 Right from the Mughal era till today the incredible double
dealing in political experimentation has gifted militant Kashmir to
those who are involved in these experiments – (Center’s control)
in every era. Every era passed from uprising to another and what
was in the mind of Late Sheikh Abdullah just two years before his
death, the author being witness, recapitulates:
“I failed to bring back your period. Perhaps the CREATOR did
not destine me to achieve. He will some day empower any one
else to achieve my mission.”
Emotionally wounded Sher-e-Kashmir said these words after
offering Fatiah at the grave of Yaqub Chak who died fighting
Mughals, buried at Bandarkote Kishtawar. The year was 1980
(August). The grave’s custodian is a Pandit and the location is
within his premises. The author does not know now, but then,
every Thursday night candles used to lit the grave.
True Sheikh Muhammad Abdullah’s flesh was not that divine that
he could not have been heir to mistakes. But without going into
events it is not fair to blame him for all our misfortunes.
Mistakes, yes, but never for personal gains. Therefore a debate is
merited, above rancor and hatred, about his position right from
the year 1947 till his arrest on 09-08-1953, to be assessed and
established, in so far as who held power in real sense—Sheikh or
Bakshi Ghulam Muhammad?
But impregnable documentary evidence concludes that right from
the year 1944, Sheikh Muhammad Abdullah started becoming the
only chosen victim of conspiracy hatched by his trusted ones.
Nehru while taking him as friend apparently, however, behind his
back stabbed the friend artistically in making Bakshi to become
another Chanakya in history. This all revolved around, “Land to
the Tillers”. As regards land to tillers, Nehru was more shocked
than the joy of the landless tillers. A revolutionary step indeed but
to the chargin of Pandits, Rajputs and handful Muslim families
i.e. Pandits, Mirzas, Kawosas, Darbus, Shawls etc etc. Nehru
shockingly makes his feelings explicit in a letter to Sheikh, 19th
May 1948:
“I saw some papers today from the states Ministry about a
reference made by the Maharaja regarding certain decisions of
your cabinet about Jagirs. He had asked for directions about both
the procedure to be followed and the merits. The matter was
referred to me by the states Ministry.
On the merit I have little doubt that the Jagirdari system has to go
both in Kashmir and else where. The only question is how and in
what manner, and if necessary by what stages it should go. We
should naturally adopt a course which is both effective and which
creates a little opposition as possible. On the one side it is
obviously desirable to promote social reform measures which
create a good impression on the people. On the other side any step
taken should avoid conflict and new problems.
As regards the procedure to be adopted in such cases I would
suggest that it would smoothen the matter very much if before any
decision a personal talk takes place between you and Bakshi and
the Maharaja. The Maharaja I feel is prepared to agree to anything
provided he is not made to feel that he is ignored and treated with
discourtesy. A previous consultation would remove this
impression. May I suggest that about this particular matter to
which I have referred you might have talk with the Maharaja.
These personal talks are important and help greatly”.
But Sheikh Muhammad Abdullah, made of different brand, did
not succumb. “Land to tillers” became a reality and Nehru was
enraged. And on phone told the Sheikh that Pandit community are
the only sufferers and Sheikh’s response: “I lead downtrodden and
oppressed, India is too big a country to take care of oppressors”.
For many years Late Mian Ghulam Muhammad, then a secretary
to J&K Government, used to narrate this event in history. We
hope to hear more from his heirs for posterity.
Nehru’s another worry was Sheikh Muhammad Abdullah’s dream
of making Kashmir a republic with full support of USSR. In
support of this Nehru’s telegram copy of which is reproduced
here, to Prime Minister UK (dated Oct. 26-1947):
1.”A grave situation has developed in the state of Kashmir. Large
numbers of Afridis and other tribe men from frontiers have
invaded state territory, occupied several towns and massacred
large numbers of non-Muslims. Accordingly to our information
tribesmen have been equipped with motor transport and also with
automatic weapons and have passed through Pakistan territory.
Latest news is that the invaders are proceeding up the Jhelum
Valley road towards the valley of Kashmir
2. We have received urgent appeal for assistance from Kashmir
Government. We would be disposed to any friendly state.
Kashmiri’s Northern frontiers, as you are aware, run in
common with those of three countries,
Afghanistan the Union of Soviet socialist Republic and China.
Security of Kashmir which must depend upon control of
internal tranquility and existence of stable Government, is vital to
security of India especially since part of Southern boundary of
Kashmir and India are common. Helping Kashmir Therefore is an
obligation of national interest to India, we are giving urgent
consideration to question as to what assistance we can give to
state to defend itself.
3. I should like to make it clear that question of aiding Kashmir
in this emergency is not designed in any way to influence the state
to accede to India. Our view which we have repeatedly made
public is that the question of accession in any disputed territory or
state must be decided in accordance with wishes of people and we
adhere to this view. It is quite clear, however, that no free
expression of will of people of Kashmir is possible if external
aggression succeeds in imperiling integrity of its territory.
4. I have thought it desirable to inform you of situation because
of its threat of international complications.”
 And Attlee’s response in 27th October, 1947:
“I have received message from Prime Minister of India…
I have sent Mr. Nehru a reply saying that we have received no
confirmed report of the scale and importance of any incursion
there may have been and begging him not to let his answer to this
appeal (aforesaid) take the form of armed intervention by force of
India”

(Extract from the message to Prime Minister of Pakistan)

Threat of International complication, Nehru also visualized in
getting reprimanded by Russian Leadership upto 1952 for his
extra-interference into the Government of Sheikh Muhammad
Abdullah, inferring his status as Prime Minister of a republic. And
Nehru expresses his anguish explicitly in his letter 10th May,
1949 to Sheikh Abdullah:
“When in London my attention was drawn to your interview with
the Daily Mail correspondent. I was rather taken a back by this
and it created a slight sensation among political circle in London.
I wish you had not given that interview because this kind of thing
leads to wrong interpretation. On my return here I found
Gopalaswami Ayy-Anger was also rather upset about it. A
proposal may be worth considering. But you and I happen to be
responsible position and can not throw out suggestions in the air. I
am afraid the suggestion you made will have a bad effect on the
UN commission. We are passing through a very delicate stage in
this business and less we say the better”.
Bakshi will tell you about talks”
Our Talks! Late G.M. Hamdani alias Zohra over thirty years
back, who was also an accused in that infamous conspiracy case,
often revealed to the author that Sheikh Sahib’s participation in
all important meetings on Kashmir was always scuttled. Instead
Bakshi was trusted fully and Sheikh Abdullah who was God
fearing and never sinned in the art of diplomacy. “He is a great
Leader and not a diplomat”.
While Sheikh Abdullah’s authority was not challenged but behind
everything was done to rid of him and finally came the D-day of
09-08-1953. The great Betrayal in history Saintly Brutus was first
to stab, then majority of the courtiers whose election to the
constituent Assembly was so managed that international observers
were shocked and in jail the Sheikh expressed “JALIB ALSO”.
Bakshi Ghulam Muhammad’s role as an important part of the
conspiracy, Prime Actor being Nehru gets established in the
following,
a) Prime Minister of India in his letter Nov 10, 1953-to Prime
Minister of Pakistan Para 3 & 4 of the letter “I need not discuss
here with various quotations you have given from a few
Newspapers. But I should like to say something about your
reference to Mr. Ghulam Muhammad Bakshi. The Prime Minister
of Kashmir. Mr. Bakshi is the Head of a party and of a
Government holding a very definite view point he expresses that
view point with vigour. Nobody says that he is an impartial and
objective witness of events. He is an actor in them, aiming at a
certain objectives which he has every right to do in his position”.
“Mr. Bakshi’s reference to foreign powers may or may not be
correct. But it is well known that the foreign policies of India and
Pakistan differ considerably. Our policy has often not found
favour with the US government and sometimes not with the
United Kingdom government. Pakistan policy is apparently more
agreeable to these governments. Certain possible consequences
flow from this and any public man may draw his inferences”.
And finally Bakshi himself pleading guilty in his speech to the
constituent Assembly on 17-08-1955:
“I have made it clear on the very first day that the oath of office
and secrecy prevents me from revealing the actual facts. Mr. Beg
has also referred to our talks with Panditji. He was also present in
those meetings and knows all about the situation at that time and
so my cabinet’ colleagues. If I had the permission I would in order
to clear the confusion being created have placed before the house
the correspondence carried on by then Prime Minister Sheikh
Muhammad Abdullah with Pandit Nehru Maulana Azad, the Late
Mr. Rafi Ahmad Kidwai and others. All the letters send by Sheikh
Muhammad Abdullah are signed by him. There are Panditji’s
replies too. All these documents are lying in my possession in
original. Sheikh Muhammad Abdullah letters and Panditji’s
replies would settle all issue I may request Panditji to permit me
to publish all the correspondence I can show not only what
happened just before August 9 but also what had been happening
right from 1948. Thus the world knows whether there was an
intrigue or not. For Mr. Beg’s information, I may also refer here
to recently published book. “Danger in Kashmir” written by Mr.
Korbel who was the Chairman of UNCIP. This book covers all the
meetings between Mr. Korbel and Sheikh Sahib. Let Mr. Beg read
this book. I would also ask the Hon’ble Member to read it
carefully. It will give them an idea of how the situation was
developing.
The author has somewhere earlier defined the role of Dr. Josef
Korbel who happened to know his father, that of a “Diplomatic
Bandits” Korbel’s only aim was to see that Kashmir does not
become republic with the support of USSR whose power then was
threatening the west. Dr. Korbel never trusted Sheikh Abdullah,
instead Bakshi. The relation between Bakshi and he was so deep
that the book should have been dedicated to Bakshi Sahib.
Bakshi-ism betrays absolute suppression which after him
continued unabated till the year 1975 and after 1990 we are
passing through absolute oppression and this oppression’s Agha
Shahid’s heartfelt description of it is dreadful:
 “And the night’s sun there is Srinagar? Guns shoot stars into the
sky, the storm of constellations night after night the infinite that
rages on. It was Idd-ul-Zuha a record of God’s inability for even
He must melt sometime to let Ishamel be executed by the hand of
his father. Srinagar was under curfew. The identity pass may or
may not have helped in the Crack down. Son after son———
never to return from the night of torture — was taken away.
But during suppression — crippled true—always returning!
After tracing in the foregoing events of consequences in history
that so far have remained hidden from many, at least from the
generation who only hear of Sheikh Muhammad Abdullah, it
would be thus appropriate to hear from them their Judgment on
Sheikh Muhammad Adbullah.
History has been abused to such an extent that it only ensures
bleak future and the tyranny of times is only supporting towards
sinning against the truth. Real history is not going to forgive us.
A politician stating that during Yousuf Chak’s rule Sunni
Mosques used to remain locked is only denigrating Late Sheikh
Muhammad Abdullah’s obeisance at the grave of Yousuf many
years back. During Chak’s rule there was no sectarian bias, and a
unified Muslim community in absolute harmony with non-
Muslims.
It was altogether due to barbaric rule of Mirza Haider Daughlat,
supported by one local Qarra Bhauder, that Kashmir’s composite
culture got ugly and there was a sectarian divide in the year 1542.
Since then this menace is the best fodder for all those who never
want us to be ruled by ourselves.

(The writer is Former Chairman, J&K Public Service

Commission)