Our Supreme Court’s verdict on the four 35A petitions can perhaps end the debate on discrimination between two categories of citizens in the same State territory
Always the smart-Alec in life, Omar Abdullah is at it once more. This time it’s the matter of “Autonomy” for Jammu & Kashmir.
Probably buoyed by P.Chidambaram’s publicly twisting the Azadi of the Kashmir lexicon to mean “autonomy” and nothing more, Omar sounded the latter bugle himself. In a newspaper report attributed to Agencies, Omar Abdullah said “We have our own flag and constitution and these have been there we have because we decided to have our own identity…If we are labelled as anti-national for seeking the preservation and restoration of constitutional guarantees given to us, so be it.”
Omar is wrong. The J&K State flag and the J&K State Constitution were anything but constitutional guarantees. The flag was permitted under the Delhi Agreement, 1952, between governments of J&K and the Indian government; it was accepted by the Union Parliament on August 7, 1952 —
Historical record shows that Maharaja Hari Singh was in no condition to make constitutional or other demands of the Dominion of India when he signed the Accession agreement.
Almost five years after Hari Singh, the Maharaja of J&K had signed the British mandated Instrument of Accession to the Indian Dominion on 26th September 1947! Further, the Constitution of the State of J&K followed the promulgation issued by the Yuvraj of J&K on 1st May 1951 — nearly four years after signing of the Instrument of Accession!
In fact, the historical record shows that Maharaja Hari Singh was in no condition to make constitutional or other demands of the Dominion of India when he signed the Accession agreement. The so-called Tribal Invasion from Pakistan territory on October 20, 1947, with ‘bren guns, mortars and flamethrowers had resulted in the Maharaja becoming a nervous wreck, what with the raiders fast approaching Srinagar, the summer capital of J&K, the Dogra Army and the National Militia (a voluntary force of the National Conference Party) unable to cope with the enemy’s onrush, destroying and looting whatever their way. To save his own life, the Maharaja let his people face the crisis, and left Srinagar and went to Jammu after appointing Sheikh Abdullah as the emergency administrator. The latter advised him to accede to India and ask for immediate military help. Thus came the J&K accession to India and our first war with Pakistan.
In hindsight and in a tragic irony of history, J&K would have got all the autonomy the Abdullahs and the Muftis want if they had only followed the key ingredients of the Instrument of Accession designed by the British.
Following are those key issues they could have welcomed:
- Allow the Indian Dominion to make only laws in respect of Communications, Defense and External Affairs
- The terms of the Instrument shall not be varied except by an amendment of the Indian Independence Act, 1947 of the British Parliament
- Nothing in the Instrument shall empower the Dominion Legislature to make any laws making it compulsory for J&K State to acquire land for any purpose except for the purpose applicable to the State but on terms as may be agreed upon or determined by an arbitrator to be appointed by the Chief Justice of India
- Nothing in the Instrument shall be deemed to commit the State in any way to acceptance of any future Constitution of India or fetter the State’s discretion to enter into such agreement with the Government of India
- Nothing in the Instrument affects the continuance of its signatory’s sovereignty over the State, or save as provided by or under this Instrument, the exercise of the signatory’s powers, authority and rights now enjoyed by the signatory.
- The Instrument is executed on behalf of the State and is to be construed as a reference to the signatory including a reference to his heirs and successors.
After the above discussion — perhaps the first of its kind — some questions remain unanswered in our history.
Why, for instance, didn’t Karan Singh, the son and heir of Maharaja Hari Singh who signed the Accession agreement to the Indian Dominion, go ahead with sticking to its concomitants? Why did he not choose to insist in implementing it in letter and spirit that would have given all the autonomy that its Abdullahs, Muftis and Majid Hydaris are either shouting for or are thirsting for? Was the Yuvraj so afraid of Shere-e-Kashmir and his community who had more sinister dreams than mere autonomy?
Why did Jawaharlal Nehru himself not persuade Yuvraj Karan Singh to fully implement the contents of the Instrument of Accession? p>
Was Sheikh Abdullah himself content with our Constitution’s Article 370 that provided enough opportunities for ruling the State with his ideal of a “responsible government” that was assured of financial support from a large-hearted exchequer in New Delhi? Did he dream of his own dynastic rule instead of the princely Dogra one? Did he not visualize the emergence of a strong nationalist section of India that wants J&K’s full merger with India that is Bharat? Did he believe that creation of Article 35A specifically for his State would allow him and his community to practice discrimination between them and “other” residents of the State?
And why did Jawaharlal Nehru himself not persuade Yuvraj Karan Singh to fully implement the contents of the Instrument of Accession? Was he such a democrat he despised any kind of aristocracy in India? By providing certain clauses in Article 370 that permitted India’s laws and constitutional provisions to be applicable to J&K, was he aiming at a once princely state to become a truly democratic entity? Was that the reason why he designated Article 370 as a “Temporary” provision in the Constitution of India? Or did he permit all that he did to fulfil the ambitions of Sheikh, the apple of his eye for intimately personal reasons?
With both Nehru and Sher-e-Kashmir no longer in this world, one can only speculate as to why it all happened the way it did.
Meanwhile, Omar and ‘Chiddu’ can wrestle with the exact meaning of the Urdu word called Azadi. And one can keep wondering whether Omar is arrogant or ignorant — or a little of both.
Our Supreme Court’s verdict on the four 35A petitions can perhaps end at least the debate on discrimination between two categories of citizens in the same State territory.
1. Text in Blue points to additional data on the topic.
2. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.