in sight.

The dragon of terrorism continues to threaten peace

and life of our citizens..
Publisher’s Note Former Union Minister, Shri Chaman Lal Gupta, pres-
ently leader of BJP Legislature Party in J&K assembly, who
has watched the events from a very close quarter as a na-
Kashmir is burning and burning because of the faults tive of the State, has written the booklet "Ek Desh Mein Do
of the weaknead policies of the successive Congress lead- Nishan, Do Vidhan, Do Pradhan" detailing the history of
ership which dealt with the merger of Jammu & Kashmir the problem. It was the late Dr. Syama Prasad Mookerjee,
with India. India's first Deputy Prime Minister and Home the first President of Bharatiya Jana Sangh who laid down
Minister, Sardar Ballabhbhai Patel, was successful in inte- his life fighting against the situation under which the coun-
grating more than 500 princely States into the Indian try had two flags, two constitutions and two prime minis-
Union through a fine display of firmness, farsightedness ters in the same country. J&K, though just another State of
and persuasion. When the Hyderabad and Junagarh States the country, was enjoying a privilege which no other State
displayed some resistance and ulterior motives, he was firm of the country was enjoying although all the States had
in dealing with them and made them fall in line with the integrated itself into the Indian Union in similar circum-
rest of the States. J&K was the only State with which India's stances. Dr. Mookerjee had given the slogan that Bharatiya
first Prime Minister Shri Jawaharlal Nehru dealt with him- Jana Sangh will never allow Ek Desh Mein Do Nishan, Do
self directly and did not allow Shri Patel to interfere al- Vidhan, Do Pradhan under any circumstances.
though he was the Home Minister of India. To snatch this Dr. Mookerjee Smruti Nyas is publishing this booklet
matter out of the hands of the Home Ministry, Pandit to make the people understand what were follies that were
Nehru, strangely, brought the issue of J&K under the pur- then committed by the Nehru government and why did
view of the ministry of external affairs. That cost the coun- Dr. Mookerjee have to make the supreme sacrifice of his
try very dearly. It is because of the folly of Pandit Nehru to life for the unity, territorial integrity and sovereignty of the
order ceasefire to the advancing contingents of Indian country.
Army to push the aggressor Pakistan out of the sacred soil
of Jammu & Kashmir that the problem has now become a
cancer for the country. Besides having spent immensely
Publisher
Dr. Mookerjee Smruti Nyas,
large sums of money and fighting three wars with Paki-
PP-66, Subramanya Bharati Marg,
stan in defending the State from aggression, the country New Delhi - 110 003
has also lost over sixty thousand of our innocent civilians
and security forces. Yet, there is no solution to the problem October 2010
 all subjects of the States in the Union, on subjects included

Ek Desh Mein
in the Union and Concurrent lists, it cannot do so in
relation to Jammu and Kashmir. On October 26, 1947,
Maharaja Hari Singh, as the sovereign ruler of Jammu and
Do Nishan, Do Vidhan, Do Pradhan? Kashmir, signed the Instrument of Accession through which
he acceded to the Dominion of India. He accepted that the
Prof. Chaman Lal Gupta matters specified in the Scheduled to the Instrument of
(Ex Union Minister) Accession would now vest in the Indian Legislature to make
laws for Jammu and Kashmir. Article 370, originally
numbered as Article 306A, however, placed the State on a
separate constitutional pedestal. Since, then, it has remained
a legal and psychological barrier between Jammu and
Kashmir and the rest of the country, preventing the State’s
integration with India’s mainstream political, social and
economic activity. As it exists now, Article 370 is included
Article 370 provides special status to J & K in that
in Part XXI of the Constitution, which is titled “Temporary,
the Parliament has powers to frame laws for all subjects
Transitional and Special Provisions”. The origin of this
of States of the Union, it cannot do so in relation to J&K.
Article lies in the vacillation of the leadership of the time;
Rejection of the draft constitutional provision for the
especially Jawaharlal Nehru, regarding this Princely State’s
states by J&K was the first step towards rejecting
accession to India.
integrative policy of India. Claim of separate political
identity was admitted by Nehru who exercised “Control” Towards a ‘special status’ and Nehru’s role
over J&K affairs. From the very beginning, after there was no option but
The most counter-productive provision in the to accept Hari Singh’s offer of accession, Nehru was keen
Constitution of India is Article 370 which provides that that Jammu and Kashmir should not be treated at par with
notwithstanding anything contained in the Constitution, the other Princely States that had joined the Dominion of
the power of Parliament to make laws for the State of India and which were later integrated into the “Union of
Jammu and Kashmir shall be limited. The Article limits India”. He was aware of Sheikh Abdullah’s political
Parliament’s jurisdiction over the State to Defence, Foreign aspirations which contradicted those of Sardar Patel who
Affairs and Communications. All other laws framed by wanted to forge a united country on the basis of his vision
the Central Legislature require the consent of the State. of India as a single nation State. The Instrument of
While Parliament has unfettered power to frame laws for Accession signed by Hari Singh was no different from that

1 2
signed by other rulers of princely States. It required the concurrence. All of them accepted the provisions except
Princely States to surrender their sovereignty on three the Government of Jammu & Kashmir. This was the first
subjects – Foreign Affairs, Defence and Communications. step towards rejecting the integrative polity of India.
The credit for negating the balkanizing effect of such an
For a better appreciation of the folly of incorporating
accession goes to the founding fathers of the Indian
Art 370, we need to understand the forces at work at that
Constitution, and especially to Sardar Patel’s role as States
moment of independent India’s history. By then the
Minister. For a while after accession, the Constituent
National Conference, led by Sheikh Abdullah, had taken
Assembly acknowledged the right of the acceding states to
control of the reigns of power in Jammu and Kashmir and
prepare their separate constitutions and devise their
it had begun to claim a separate political identity for the
relationship with the Union.
State on the strength of its Muslim majority population.
States not to have constituent assemblies The claim was admitted by Nehru who exercised ‘control’
In November 1948, the Ministry of States constituted a over Jammu and Kashmir affairs to the exclusion of
special committee to prepare broad guidelines for the everybody else barring N Gopalaswami Ayyangar who,
Constituent assemblies of the States. But the process of by virtue of the fact that he had served as Hari Singh’s
setting up constituent Assemblies was extremely slow. Only Dewan and had close links with Shiekh Abdullah, was
three states, Saurashtra Union, Travancore and Cochin and appointed as Minister without portfolio and entrusted the
Mysore were prompt in setting up constituent assemblies. task to deal with Kashmir. Sardar was not consulted by
To overcome this problem, the States Ministry organised a Nehru while taking this decision. V Shankar, Vallabhbhai
conference of the premiers of the States in Delhi in 1949. Patel’s secretary and author of My Reminiscences of Sardar
The premiers decided at the conference not to wait for the Patel informs us that Nehru was unable to face Sardar and
setting up of separate constituent assemblies but to entrust looked for ‘outside support’ for his Kashmir policies, which
the task to the constituent assembly of India. The State he found in Ayyanagar and John Mathai. Shankar also
subjects were to be decided upon in consultation with the talks about the ‘wrong assessment’ of Sheikh Abdullah by
States. In a sense this step laid the foundation of an Nehru and Ayyangar and how they allowed him to ‘dictate
irreversible Union of the States into a composite whole in terms’ against the better sense of assessment of his influence
which the Union government and Parliament were to in the state’. Nehru believed that ‘only Sheikh Abdullah
emerge as paramount authority over the entire territory of could swing the vote and was prepared to make any
the Republic of India. Accordingly, the Drafting Committee concessions.’
of the Constituent Assembly prepared a draft of the Sheikh Abdullah had asked for special status for J&K
constitutional provisions for the States and this was on the basis that it is a Muslim majority State. By
circulated among the State Governments for their accepting this Congress was legitimizing Jinnah’s two
3 4
nation theory. Soon after January 01 1949, when ceasefire therefore constrained once again that the choice is finally
came into operation, tone and tenor of Sheikh Abdullah between the Maharaja and the people and if the choice is
changed and he asked for abdication of Maharaja Hari not made soon, it might lead us into very serious trouble
Singh which would help him in winning the plebiscite. both militarily and politically. The only alternative is that
His Highness should abdicate in favour of his son and that
Legitimising Jinnah theory
there should be no reservation whatsoever, in the
It is an irony that Nehru was convinced of Sheikh administration of the various subjects under the Ministers’
Abdullah’s case for a separate political identity for Jammu (Sardar Patel’s correspondence, Vol I). He followed this up
and Kashmir on the basis of its Muslim majority. By with his revealing interview to a British, newspaper The
capitulating to his demand, Nehru and other Congress Scottsman, published on April 14, 1949 in which he said,
leaders of the time were also legitimizing Mohammed Ali “Accession on either side cannot bring peace... we want to
Jinnah’s pernicious two-nation theory. Nehru’s willingness live in friendship with both dominations. Perhaps a middle
to accommodate Sheikh Abdullah’s aspirations amounted path between them, with economic cooperation with each,
to accepting the existence of a sub-national identity based will be only way of doing it. But an independent Kashmir
on religion which the Indian constitution was to later reject. must be guaranteed not only by India and Pakistan, but
Also, by institutionalizing political power on the basis of also by Britain, the United States and other members of
the Muslim majority of the State, he and Sheikh Abdullah the United Nations.” He stressed: “When during the crisis
subordinated Jammu and Kashmir’s Hindus, Buddhists India accepted the Maharaja’s accession, Pandit Nehru
and Sikhs to the permanent status of minorities. It must be insisted that it was only provisional and that the people
noted here that no other constituent part of India was given must decide later.”
a special status on similar grounds. On his part Nehru
argued that he needed to keep the National Conference on Patel outraged
his side, keeping in view the ongoing debate in the UN on Outraged by his views, Sardar Patel wrote to Ayyangar,
Jammu and Kashmir. pointing out Sheikh Abdullah’s conversion to an
independent Kashmir. Ayyangar, in turn, asked Dwarka
Sheikh Abdullah changes tone
Nath Kachru, Government of India’s nominee. Informing
Sheikh Abdullah was aware of Nehru’s views and took Sardar Patel of the action that had been taken, Ayyangar
full advantage of this reality. As soon as the UN brokered wrote: “I have asked him to inform the Sheikh that, reading
ceasefire came into operation on January 1, 1949, the tone between the lines, I suspect a plan, the first step of which
and tenor of Sheikh Abdullah’s statements changed. To is this blessing by the premier of Kashmir of the idea of an
begin with, he refused to acknowledge the constitutional independent Kashmir and this public expression of his
primacy of the Maharaja and wrote to Nehru: ‘I am conviction that accession to India will not bring peace, and
5 6
the first step of which may well be perhaps one of the which were agreed to only a few months before. Nor would
greatest betrayals of history...” Nehru could not have been it be fair on my part to conceal from you my own feeling
ignorant of what his close associate described as the while Sheikh Abdullah has been allowed to depart, from
impending “one of the greatest betrayals of history.” Yet time to time as suited his inclinations, from the pledged
he chose to pander to Sheikh Abdullah’s whims and fancies. and written word, to act consistently in breach of the
loyalty which he professed to me prior to his release from
UN’s increasing interest
jail and the oath of allegiance which he took when he
Meanwhile, as the UN began to take an increasing assumed office, and to indulge openly along with his
interest in the affairs of Jammu and Kashmir at the behest colleagues in a campaign of vilification and foul calumny
of Pakistan, Sheikh Abdullah became more vocal about his against me, both inside the State and outside.”
lack of faith in the finality of the accession. Congress
leaders, with a view to placate Sheikh Abdullah, decided Sheikh Abdullah breaching understanding
to ask Hari Singh to leave Jammu and Kashmir The Maharaja concluded by seeking an assurance from
temporarily. In order to convince him, they fell back upon Patel that this was not a prelude to his abdication, saying,
Sardar Patel whom the Maharaja trusted. (Later, the “I regard such a demand from my Prime Minister and his
Congress was to betray both Sardar Patel and Hari Singh). colleagues as a clear breach of the many understandings
By a special cable, Sardar Patel invited Hari Singh to come on which constitutional arrangements have been made
to Delhi to discuss matters which ‘admit of no delay’. On from time to time and a positive act of his disloyalty,
arrival, Hari Singh was told by Patel that Sheikh Abdullah treachery and deception.” Sardar Patel assured the
was insisting on his abdication as this would help him in Maharaja: “Regarding the points which your Highness has
winning the plebiscite. Much against his better judgment, referred to me, I should like to state that the question of
Patel went on to tell Hari Singh that his absence from the Your Highness abdication does not arise. We have made
State would be in the interest of Jammu and Kashmir and the position quite plain to Sheikh Mohammad Abdullah…”
India. Hari Singh conveyed his distress to Patel: “I would
In May 1949, NC once again insisted upon abdication
not, however, be human if I did not express my keen sense
on Maharaja Hari Singh and an agreement was also
of disappointment and bewilderment at having been called
arrived at deciding modalities of relation of the State
upon to make such a sacrifice of personal prestige, honour
with the Union. It was decided that the State will have
and position when all along I have been content to follow,
its own Constituent Assembly; Sheikh Abdullah sought
sometimes even against my own judgment and conscience,
clarifications on the agreement which amounted to its
the advice in regard to the constitutional position in the
non-acceptance. Four members were nominated to
State which I have been receiving from the Prime Minister
Constituent Assembly of India. In June 1949 Maharaja
of India or yourself, sometimes against the arrangements
7 8
Hari Singh announced his decision to leave the State IV. The division of powers between the State and the
nominating Yuvraj Karan Singh as Regent. Union would be based on the terms specified in the
Instrument of Accession and the Union’s jurisdiction would
Nehru strikes a deal with Abdullah
extend to the subjects in respect of which the dominion
After Maharaja Hari Singh moved from the State, Government had assumed powers by virtue of the
leaders of the National Conference were invited to Delhi Instrument of Accession;
for a conference to work out the constitutional relationship
of Jammu and Kashmir with India. The meeting took place V. The Constituent Assembly of the State would
in May 1949. During the discussions, the National determine such other subjects which would be transferred
Conference leaders insisted on the Mahraja’s abdication. to the Union and in respect of which the Union would
More importantly, they refused to accept the inclusion of assume jurisdiction over the State;
the State into the territory of India and the applications of VI. The provision of the Constitution of India with
the provisions of the Indian constitution on Jammu and regard to the jurisdiction of the Union, citizenship of the
Kashmir. They went to the extent of demanding the Union, fundamental rights and the related legal safeguards,
withdrawal of the Indian Army from the State and principles of State policy and the jurisdiction of the federal
restoration of Kashmir’s right to have its own defence force. judiciary would extend to the State, subject to the
The National Conference delegates were told that they were modification that the provisions would not impinge upon
raising issues which had already been determined by the the special domiciliary rights in the State and the economic
Instrument of Accession. The conference, they were reforms the Interim Government would under take;
reminded, was aimed at deciding the modalities of the
Union. An agreement was finally arrived at and it VII. The administrative and operational control of the
envisaged: State Army would remain vested in the Indian Army;

I. The provisions of the Constitution of India with regard VIII. The President of the Indian Union would be vested
to the government in the States would not apply to Jammu with the powers to modify or terminate the operation of
and Kashmir State; the specific provisions of the Constitution of India in regard
to Jammu and Kashmir State, on the recommendations of
II. The Constitution of the state would be framed by the Constituent Assembly of the State.
the Constituent Assembly of Jammu and Kashmir, which
would represent the people of the State; (Sardar Patel’s Correspondence, Vol I, p 226)

III. The future of the ruling family of the Maharaja Capitulation, which was to become the hallmark of
would be decided by the Constituent Assembly of the State; successive Congress regimes at the Centre in their dealings
with Jammu and Kashmir, had begun.
9 10
Abdullah backs out, Nehru capitulates to ensure that the Muslim majority character of the State
Not even a day had passed after these arrangements would not be impaired and the only safeguard to protect it
were worked out when Sheikh Abdullah wrote to Nehru would be to keep Jammu and Kashmir out of the
and sought clarification on various issues which amounted Constitutional organization of India. Sheikh Abdullah did
to their non-acceptance. Nehru feigned dismay and not apprise Nehru or anybody else of these views till the
reiterated the points covered by the agreement. He then draft provisions of the Constitution of India which were
visited Srinagar in the last week of May 1949, and held evolved in the light of the agreement were sent to him for
further discussions with Sheikh Abdullah and his approval.
colleagues. He assured them that the provisions of the Draft Article 306-A was prepared and before it could
Constitution of India not included in the Instrument of be discussed in the Congress party, Nehru left for foreign
Accession would not be extended to the State and the tour leaving Gopalaswamy Ayyangar to present it.
Constituent Assembly of the State would be vested with Congress party was furious on being apprised of the
the residuary authority to formulate constitutional draft. Even Sheikh Abdullah did not accept for different
provisions with regard to matters which were not covered reasons though. To please Nehru, Ayyangar agreed to
by the Constitution of India. (Syed Mir Qasim — Savani redraft the Article which now made Constitution of India
Hayat). In the light of the agreement, the interim applicable to the State restricted to Article 1.
Government of Jammu and Kashmir, under the authority
of the Maharaja, nominated four members to represent the i. A Constituent Assembly would be convened in
State in the Constituent Assembly of India in May 1949. Jammu and Kashmir to draft the Constitution of the
The representatives joined on June 6, 1949, Maharaja Hari State;
Singh announced his decision to leave the State and ii. Provisions of the Constitution of India with regard
nominated his son, Yuvraj Karan Singh Regent of the State. to territories of India, Indian citizenship, fundamental
Soon after this, the National Conference assumed complete rights and the related legal safeguards and the
control over the Government of Jammu and Kashmir and Directive Principles of State Policy would apply to
began trying to wriggle out of the agreement which they the State;
had entered into with Nehru.
iii. The other provisions of the Constitution of India
A number of closed-door meetings were held to discuss would apply to the State with such exceptions as were
the agreement at which only Muslim members of the mutually agreed upon between the Government of
National Conference hierarchy were invited. A number of India and the State Government;
leaders and officials had opposed the discussions. The most
iv. The Union would exercise powers with regard to the
significant outcome of these meetings was that they decided
11 12
 subjects which were specified by the President of India protest. According to Shankar, “The announcement was
to correspond with the subjects transferred to the followed by a storm of angry protests from all sides and
Dominion government by the Instrument of Gopalaswami Ayyangar found himself a lone defender
Accession, in consultation with the State Government, with Maulana Abul Kalam Azad an ineffective supporter.
and such other subjects as would be specified by the Metaphorically, the situation may be succinctly described
President of India in consultation with the State by saying that both Gopalaswami Ayyanagar and his
Government proposal were torn to pieces by the Party.” The proposals,
were in reality, that of Nehru, Ayyangar was merely trying
v. The President of India would be empowered to
to sell it. On facing such a hostile reaction, Ayyangar rushed
modify, restrict or suspend the operation of the
to Sardar Patel and appealed to him to come to his rescue.
provisions of Article 306-A on the recommendations
Sardar heard Ayyangar and lapsed into silence. To
made by the Constituent Assembly of Jammu and
Shankar’s query as to what reply he would like to give, he
Kashmir State.
said he would think it over.
Having finalised this draft in secrecy and in consultation
The Sardar convened a meeting of the Congress
with Sheikh Abdullah, Nehru proceeded on a foreign tour.
Executive the following day. The details of what followed
He entrusted the task of piloting the draft through the
as recorded in Vol II of Shankar’s My Reminiscences of
Constituent Assembly to Ayyangar. The subsequent protest
Sardar Patel (p 61-64): “The meeting was one of the
against the draft in the Congress can be reconstructed from
stormiest I have ever witnessed... The opinion in
V Shankar’s account (My Reminiscence of Sardar Patel) and
opposition to Gopalaswami’s formula was forcefully and
from Sardar Patel’s Correspondence.
even militantly expressed... even Maulana Azad was
Storm of protest in Congress shouted down.” It was left to Sardar to bring the
According to Shankar: “In the (Congress) party there discussion down to a practical place and to plead that
was a strong body of opinion which looked askance at any because of international complications, a provisional
suggestion of discrimination between the Jammu and approach alone could be made.
Kashmir and Union and was not prepared to go beyond Why did Patel agree to placate the Congress members?
certain limits in providing for the special position of Jammu Shankar provides the answer: “I was somewhat taken
and Kashmir. In fact, he had not taken any part in framing aback at Sardar’s acquiescence in the draft formula of
the draft proposals with the result that he heard the Gopalaswami Ayyangar and strongly felt that Sardar had
proposals only when Gopalaswamy Ayyangar announced compromised the position of the Indian Union and other
them to the Congress Party.” When Ayyangar put up the states in accepting the formula as the basis... He said, ‘I
draft for the party’s consideration, there were howl of was deeply concerned at the situation. Gopalaswami had
13 14
acted under Panditji’s advice. If Jawaharlal were here I to redraft the Article. The new draft restricted the
could have had it out with him. But how could I do so application of the Constitution of India to the State to Article
with Gopalaswami who was only acting under orders? If I 1 which defined the territories of the Union and the
did, people would have said that I was taking revenge on provisions relating to Indian citizenship.
his confidant when he was away.... I then asked why he
At the behest of NC, a new draft of the Agreement
(Sardar Patel) had let down the country and the other states
was made by Ayyangar but that was also rejected by
whose Constituent Assemblies had been scrapped in
Abdullah on 17 October 1949, original draft was
accordance with his advice and policy... He said after all,
presented to Constituent Assembly of India and passed
neither Sheikh Abdullah nor Gopalaswami was permanent.
without NC members moving their amendment and
The future would depend on the strength and guts of the
Article 306A, was renumbered as Article 370.
Indian government and if we cannot have confidence in
Constitution of all states except Jammu and Kashmir
our own strength we do not deserve to exist as a nation.
were embodied in the Constitution of India. Jammu and
Jawaharlal Royega Kashmir was to determine sphere of Union jurisdiction
To others, Sardar said, “Jawaharlal Royega.” Even while through its own Constituent Assembly. On 24 July 1952,
all this was happening, the working committee of the Nehru in his speech to Parliament absolved himself and
National Conference refused to accept this draft. It put the blame on Patel who was dead by then.
disapproved of the preamble to the Article which stipulated Ayyangar then wrote to Patel informing him of the
that it was of a transitional nature. It also objected to the change and the background to it, saying, “I have since
application of citizenship, fundamental rights and the thought over the matter and dictated a draft which,
related constitutional and legal guarantees as these would without giving up the essential stand we have taken in our
prejudice the domiciliary State Subjects Rules in force in original draft, readjusts it, in minor particulars in a way
the State. Sheikh Abdullah communicated to Ayyangar on which I am hoping Sheikh Abdullah would agree to.” Patel
October 12, 1949, the view of his party. Ayyangar had a replied: “I do not at all like any change after our party had
meeting with Sheikh Abdullah and Mirza Afzal Beg on approved of the whole arrangement in the presence of
October 14 in which he tried to persuade them to accept Sheikh Sahib himself. Whenever Sheikh Sahib wishes to
the draft Article. back out, he always confronts us with his duty to the
The latter stuck to their stand. Ayyangar was people. Of course, he owes a duty to India or to the Indian
“dismayed” at the attitude of the National Conference Government, or even on a personal basis, to you and the
leaders. Nehru was away in the United States. In this Prime Minister who have all gone out to accommodate him.
situation and with a view to please Nehru, Ayyangar agreed In these circumstances any question of my approval does

15 16
not arise, if you feel it the right thing to do, you can go on October 17,1949. The National Conference
ahead with….” representatives sulked and watched the proceedings with
a grim look on their faces without participating in the
But even the revised draft was not acceptable to Sheikh
discussions. The President of the Constituent Assembly
Abdullah. He wanted to have the draft amended and
waited for the National Conference members to move their
Mirza Afzal Beg gave notice of amendment. Finally,
amendment but they did not budge. Finally, the draft was
Ayyangar drew up a new draft in consultation with Beg
voted and included in the Constitution after being
which stipulated:
renumbered as Article 370. On November 25, 1949, the
i. Article I would apply to the State and the State would Regent of the State, Yuvraj Karan Singh, by a proclamation
be included in the territories of the Union of India: ordered that the relations between the State and the Union
of India would be governed by the Constitution of India.
ii. No other provision of the Constitution of India would
be applied to the State, except with the approval of Ayyangar’s defence in Constituent Assembly
the interim Government of the State. In the Constituent Assembly, the principal address in
iii. The division of powers between the Union and the support of Article 370 came from Ayyangar “As the House
State would be determined in accordance with the is aware, Instruments of Accession will be a thing of the
terms of the Instrument of Accession past in the new Constitution. The States have been
integrated with the Federal Republic in such a manner that
iv. The President of India would be empowered to
they do not have to accede or execute a document of
terminate or modify the operation of the constitutional
accession for the purpose of becoming units of the Republic,
provisions with regard to the State on the
but they are mentioned in the Constitution itself; and in
recommendation of the Constituent Assembly of the
the case of practically all the States other than the State of
State;
Jammu and Kashmir, their Constitutions also have been
v. The State would be construed to mean the Maharaja embodied in the Constitution for the whole of India.” At
acting on the advice of the Council of Ministers this Maulana Hasrat Mohani facetiously remarked: “Why
appointed under his proclamation dated March 5, this discrimination please?”
1948. But, yet once again, the amended draft was
Ayyangar answered back: “That particular State is not
also rejected by the National Conference.
yet ripe for this kind of integration. It is the hope of
Ayyangar and Azad tried in vain to persuade Sheikh everybody here that in due course even Jammu and
Abdullah and his colleagues, but they did not relent. Kashmir will become ripe for the same sort of integration
Ultimately the original draft was presented to the House as has taken place in the case of other states. We are also

17 18
committed to ascertaining the will of the people by means still remain inapplicable.
of plebiscite provided that peaceful and normal conditions
The proposal were embodied in draft Article 306-A,
are restored and the impartiality of the plebiscite could be
and they stipulated: i) The provisions of the Constitution
guaranted. We have also agreed that will of the people
of India with regard to Part B States would not apply to
through the instrument of a Constituent Assembly, will
Jammu and Kashmir State: He wrote to Sheikh Abdullah
determine the Constitution of the State as well as the sphere
saying, “I am anxiously keen now as ever I have been to
of Union jurisdiction over the State… at the present
see that you are not given any cause for genuine or even
moment, we could establish only an interim system. Article
imagined grievances in regard to the policy that the
306-A (later renumbered as Article 370) is an attempt to
Government of India is following in relation to Kashmir. I
establish such a system.”
have, therefore, since you left me this morning, tried to
Later, of course, as was his wont, Nehru absolved find a way out of the present situation in regard to Article
himself of all responsibility when things started going 306-A. I do hope you would appreciate the gesture I am
wrong. Making a statement on the affairs of Jammu and making personally, I should like you to move this draft
Kashmir in the Lok Sabha on July 24, 1952 (by then Sardar yourself in the House.”
Patel was dead) – statement that dealt with the invasion
According to Nehru, “This came to an end in November:
by Pakistan, the accession, the case in the UN – he gave his
I think, of 1949 when we were designing our Constitution
version of why integration with the rest of the country has
in the Constituent Assembly. Well, we could not leave
progressed slower in the case of this State: “The matter
everything quite vague and fluid there, something had to
has been before the UN, we had pledged to proceed with
be stated in our Constitution about Jammu and Kashmir
the consent of the people of Kashmir.” And Sardar Patel
State. That problem had to be faced by Sardar Patel. Now,
was all this time dealing with these matters”, Without
he did not wish to say very much, we wanted to leave it,
betting an eyelid, he passed on the blame to Sardar Patel
we all wanted to leave it in a fluid condition because of
for something for which he alone was responsible, for
these various factor, and gradually to develop those
something against which Sardar Patel had made his
relations. As a result of this, a rather unusual provision
displeasure know in no uncertain terms.
was made in our Constitution relating to Jammu and
Article 370 came in for criticism in Lok Sabha. Nehru Kashmir…”
took the stand that the Article was dealt with by Sardar
Selective amnesia?
in his absence and he was not responsible for it. Though
various provisions of Indian Constitution have been Selective amnesia? Or intenational distortion of the truth
made applicable to the State through Presidential orders by the man who claimed that he knew “more about
issued from time to time, yet there are vast areas which Kashmir” than anybody else”? was Nehru’s absence from

19 20
the country in October 1949 a mere coincidence or planned applicable to the State. However, there are vast areas which
with a purpose? By then Ayyangar had succeeded to still remain inapplicable. Article 352 regarding
Sardar’s chair and Shankar was a Joint Secretary in his proclamation of Emergency is applicable only in a limited
Ministry. He records in his memories: “When I was working way. The provisions relating to financial emergency are
as his (Ayyangar’s) Joint Secretary in July 1952 the same also applicable in a limited way. The Jammu and Kashmir
Article came in for criticism in the Lok Sabha. In defence, Constitution creates a large number of legal problems,
Pandit Nehru took the stand that the Article was dealt with particularly in relation to the right to hold property, the
by Sardar in his absence and he was not responsible for it. right to citizenship and the right to settlement of persons
I met Gopalaswami the same evening… I questioned the living in other parts of the country.
bona fides of Pandit Nehru’s stand. Gopalaswami’s reaction
Dual Citizenship
was one of anger and he said, “It is an ill-return to Sardar
for the magnanimity he had shown in accepting Panditji’s The citizens of India are not treated as citizens of
point of view against his better judgment.” Jammu and Kashmir. They have no right of settlement in
the State. Even though the Constitution of India recognizes
Nehru’s gift: An albatross around India’s neck a single citizenship, the people of Jammu and Kashmir have
Thus came in Article 370 into the Constitution as a a dual citizenship: They are citizens of India as well as
purely temporary and transitional provision. The enactment citizens of Jammu and Kashmir. “Non-subjects” cannot
of this Article was a result of the Congress leadership’s hold property in Jammu and Kashmir and even though
political myopia. The Nehruvian thinking on Kashmir did they may be living there they do not have the right to vote.
not have the foresight to realize that its policy would hang Women in the state are issued state subject certificates
like an albatross around the country’s neck in the coming which are only valid up to the time of marriage.
decades. Under various Presidential orders issued from time
Anti Women provisions
to time under Article 370, various provisions of the Indian
Constitution have been made applicable to the State of Women who marry outside the State lose their right in
Jammu and Kashmir, but many provisions still remain property; they also lose the right of inheritance from their
inapplicable. The Constituent Assembly of the State framed parents. On the Government building in Jammu and
its own Constitution. Both the Indian Constitution and the Kashmir the State Flag as well as the National Flag are
Constitution of the State of Jammu and Kashmir provide flown.
that the State of Jammu and Kashmir is an integral part of Invalid argument
the Indian Union. Provisions such as Article 356, the
An argument is regularly advanced that Article 370 is
jurisdiction of the Supreme Court, the Election Commission
necessary to enable Kashmiris to “preserve their culture
and the Comptroller and Auditor General have been made

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and satisfy their regional aspirations”. The argument is has been extremely reluctant to invest in the Kashmir Valley.
wholly misconceived. There is no nexus between a law There is a lurking fear in the minds of industrialists that
which weakens a nation’s integrity and popular regional investment in the Valley will not be a safe proposition. This
culture. Has the culture of Bengalis, Tamils and has directly resulted in curtailment of job opportunities.
Maharashtrians been adversely affected in the absence of The people have to primarily resort to tourism related
Central laws not being applicable to those regions? On the industry for their survival. There has been some economic
contrary, has not the changing demographic pattern of progress made by artisans of various kinds. However, even
these states spread the message of these regional cultures in the area of tourism large scale investment from outside
to various corners of the country? has not been forthcoming. The Kashmiri people have thus
suffered directly on account of Article 370 in terms of
Article 370 has resulted in creation of separatist
economic progress and job opportunities. Their main
movement, very little industrial investment, few
dependence has either been on tourism or on opportunities
educational institution of higher or technical knowledge,
in the government sector. Educational institutions in the
lack of healthy financial legislation, corruption,
Valley have also been comparatively fewer in number.
psychological barriers between Kashmir and rest of
India, dependence on Central aid and creation of sub- Beneficiaries who?
national psyche. Who are the beneficiaries? Not the people. The
Regional aspirations are satisfied by decentralization beneficiaries of Article 370 were thus not Kashmiri people
of power in the hands of democratically elected State but the ruling political elite and also a small vested interest
Governments, local bodies and panchayats. This is never of Kashmiri businessmen. Politicians used the bogey of
achieved by perpetuating a separatist psyche and Article 370 to create a separatist psyche and secure their
alienation. In the background of these events it is relevant own political positions. The rich in the Valley prevailed
to note as to what political and economic consequences upon the local politicians and did not permit healthy
have taken place on account of Article 370. This Article financial legislation in the State. The provisions of beneficial
has hardly served the people of Jammu and Kashmir. The laws such as Wealth Tax, Gift Tax and Urban Land Ceiling
direct consequences of the special status for Jammu and Act have not been permitted to operate in the Valley.
Kashmir has been that persons outside the Kashmir Valley Whenever the corrupt and tax evaders have been raided,
have been prevented from purchasing immovable property the bogey of Article 370 has been used to frustrate the raids.
in the State. Added to this has been the separatist The political consequences of Article 370 on India as a
movement and the insurgency. nation have been disastrous. Article 370 has symbolized
As a result, industry from other parts of the country divisive thinking. It has institutionalized and

23 24
constitutionalised separatism. It has created a psychological model to the other states where similar demands have come
barrier between Kashmir and the rest of India. It has up. The country has not recovered from such shocks in
prevented the political and economic integration of Jammu Punjab and tremors of this are being felt in the North-East.
and Kashmir with the rest of the country. It has perpetuated Article 370 was perhaps the single greatest Nehruvian
a political order where the State is dependent upon Central blunder. The Partition of India was the result of Jinnah’s
grants and subsidies wherein the ruling mafia could survive two-nation theory whereby Kashmir became a third sub-
on the strength of favouritism and nepotism. nation. Article 370 is directly responsible for the creation
of a Sheikhdom or a Sultanate and, eventually, the spread
Refugees in own motherland
of anarchy.
A direct consequence of non-state subjects not being
allowed to purchase property in Kashmir Valley has
prevented the citizens of India from settling down in the
Valley. Similarly except those driven out of the valley due
to insurgency, very few Kshmiris have ventured out to other
parts of the country. Today we see Bengalis, Biharis, Tamils
etc. in large numbers settled in various parts of the country.
Except for refugees, how many Kashmiris do we find? As
a result, there has been no social interaction and the
demographic component of the State, especially the Valley,
„
did not become broad-based. Article 370 is the culprit. It
has created a sub-national psyche for which the country
continues to pay every day. It has resulted in the single
greatest failure of Indian secularism wherein the entire
minority community of the Kashmir Valley was compelled
to become refugee in its own country. Their houses were
burned, their women raped, their men killed and they
continue to suffer in refugee camps.

Article 370 has prevented the emergence of an

alternative ideological movement in Kashmir which would
have resisted this separatist thinking. Besides being a charter
for national disintegration, Article 370 represents a dubious

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