Is Article 370 basic to Kashmir’s Accession – Part 2

The day: 17th October 1949.

The last few deliberations in the Constituent Assembly. Article 306 A has been reluctantly taken up for discussion. Gopalaswami Ayyangar had tried his best to delay the discussion, but at a point had to make his pitch. At the end of it:

Mr. President: The article is now open to discussion.

Maulana Hasrat Mohani: Sir. I want to make it clear at the very outset that I am neither opposed to all these concessions being granted to my Friend Sheikh Abdullah, not am I opposed to the acceptance of the Maharaja as the ruler of Kashmir. And if the Maharaja of Kashmir gets further powers and concessions I will be very glad. But what I object to is this. Why do you make. This discrimination about this Ruler? Mr. Ayyangar has himself admitted here that the administration of Kashmir State is not on a very good basis .

The Honourable Shri N. Gopalaswami Ayyangar: That is a wrong statement. I never said so.

Maulana Hasrat Mohani: That it will assume independence afterwards. But may I ask a question? When you make all these concessions for Kashmir I most strongly object to your arbitrary act of compelling the Baroda State to be merged in Bombay. The administration of Baroda State is better than the administration of many other Indian Provinces. It is scandalous that you should compel the Maharaja of Baroda to have his raj merged in Bombay and himself pensioned off. Some people say that he himself voluntarily accepted this merger. I know it is an open secret that he was brought from England and compelled against his will .

Mr. President: Maulana, we are not concerned with the Maharaja of Baroda here.

Maulana Hasrat Mohani: Well, I would not go into any detail. But I say that I object to this sort of thing. If you grant these concessions to the Maharaja of Kashmir you should also withdraw your decision about the merger of Baroda into Bombay and allow all these concessions and many nlore concessions to the Baroda ruler also.

Mr. President:  The question is:

“That with reference to Amendment No. 379 of List XV (Second Week), after article the following new article be inserted:-

·306A. (1) Not withstanding anything contained in this Constitution.

(a) the provisions of article 21lA of this Constitution shall not apply in relation to the

State of Jammu and Kashmir.

(b) the power of Parliament to make laws for the State shall be limited to

……..

 

The Article 306 A of the Draft Constitution corresponds to Art 370 of the Constitution of India. 

 

Let’s start from the beginning. Gopalaswami Ayyangar’s  introduction of Art 306 A (Art 370):

 

The Honourable Shri N. Gopalaswami Ayyangar: Sir, this matter, the matter of this particular motion, relates to the Jammu and Kashmir State. The House is fully aware of , the fact that that State has acceded to the Dominion of India. The history of this accession is also well known. The accession took place OD the 26th October, 1947. Since then, the State has had a chequered history. Conditions are not yet normal in the State. The meaning of this accession is that at present that State is a unit of a federal state, namely the Dominion of India.  This Dominion is getting transformed into a Republic, which will be inaugurated on the 26th January, 1950. The Jammu and Kashmir State, therefore, has to become a unit of the· new Republic of India.

As the House is aware, accession to the Dominion always took place by means of an instrument which had to be accepted by the Ruler of the State and which had to be accepted by the Governor-General of India. That has taken place in this case. As the House is also aware. Instruments of Accession will be a thing of the past in the new Constitution. The States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a document of Accession for the purpose of becoming units of the Republic but they are mentioned in the Constitution itself; and, In the case of practically ail States other than the State of Jammu and Kashmir, their constitutions also, have been embodied in the Constitution for the whole of India. All those other States have agreed to integrate themselves in that way and accept the Constitution provided.

Maulana Hasrat Mohani: Why this discrimination, please?

The Honourable Shri N. Gopalaswami Ayyangar: The discrimination. is due, to the special conditions .of Kashmir. That particular State is not yet ripe for this kind of integration. It is the hope of everbody (sic) here that In due course even Jammu and Kashmir will become ripe for the same sort of integration as has taken place in the Case of other States. (Cheers) At present it is not possible to achieve that integration. There are various reasons, why this is not possible now.

I shall refer again to this a little later.

In the case of the other Indian States or Unions of States there are two or three points which have got to be remembered. They have all accepted the Constitution framed for States in Part I of the new Constitution and those provisions have been adapted so as to suit conditions of Indian States and Unions of States. Secondly; the Centre, that is the Republican Federal Centre will have power to make laws applying in every such State or Union to all Union and Concurrent Subjects. Thirdly, a uniformity of relationship has been established between those States and Unions and the Centre. Kashmir’s’ conditions are, as I have said, special and require special treatment.

I do not want to take much- of the time of the House, but I shall briefly indicate what the special conditions are. In the first place, there has been a war going on within the limits of Jammu and Kashmir State.

There was a cease-fire agreed to at the beginning of this year and that cease-fire is still on. But the conditions in the State are still unusual and abnormal. They have not settled down. It is therefore necessary that the administration of the State should be geared to these unusual conditions until normal life is restored as in the case of the other States.

Part of the State is still in the hands of rebels and enemies.

We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.

Again, the Government of India have committed themselves to the people of Kashmir In certain respects. They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it.  We are also committed, to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the Instrument of a constituent assembly, will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.

 —————————————————————————————————–

The introductory speech did not end there. There is some more and that is also relevant. But what I would like to stress here was that:

1. It was seen as a temporary measure.

2. It was seen as discriminatory.

3. It was not that other States / Rulers did not have this Right. 

OTOH they voluntarily gave up this Right. In recognition of this Supreme Sacrifice the Indian Govt gave them the Privy Purse. And did we keep up that Promise?

(To Continue)

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