The abolition of Article 370 led to dubious drumbeating about the final integration of Kashmir into India. In 1954, when the Presidential Order (1954) was issued comprehensively determining the extent of Union control over Kashmir, the same kind of trumpet blowing occurred. I call it drumbeating and trumpet blowing, as I find it distasteful.
There was again a heated debate, based on no evidence at all, about who supported what in terms of the merger of states. Sardar Patel was projected as the pilot of uniform ‘national integration’ while Jawaharlal Nehru was demonised for his failure to achieve the same kind of integration, as piloted by Patel for other states. Even BR Ambedkar was put in the picture frame for his opposition to Nehru’s scheme of merger for Kashmir. Not satisfied, even Shyama Prasad Mukherji was alleged to have opposed it. What is amazing is that even the Government of India promoted this view and there was debate in the temple a democracy called Parliament.
Is this true even remotely? There is not even an iota of evidence, either in any correspondence preceding the Constitution, or in the debates held in the Constituent Assembly of India. Neither Patel nor Ambedkar or Mukherji uttered a word of objection in this regard. In fact, there is a statement of Patel in favour of Article 370 because it is he who conducted the negotiations for merger on various occasions with the Government of Jammu and Kashmir.
I am not going into the issue whether Patel had, in fact, suggested forgoing of Kashmir. Ambedkar was chairman of the drafting Committee which incorporated Article 306 (Article 370) in the Draft Constitution, likewise Mukherji was also a minister in the Central Cabinet as well as a member of the Constituent Assembly when the draft Article 306 was debated.
The contemporaneous documents, the negotiations between the Union and the Government of Jammu and Kashmir, and the Constituent Assembly debates, do affirm the position that J&K was a special case being a border state. Kashmir did not accept a complete cession of sovereignty in favour of India. Only limited external sovereignty was ceded, while internal sovereignty was retained by the Raja when the accession took place in 1948-49.
The framers of our Constitution were men of great foresight and wisdom. Most of them were active freedom fighters who had spent years of incarceration in British jails during the freedom struggle. At least their loyalty to the nation cannot be debated. These wise men, during the debates on the draft Article 306, categorically accepted the special status for Kashmir and guaranteed it till Kashmir decided otherwise. All were unquestionably on the same page when Article 370 was enacted in the Constitution. Article 370 was, in fact, the guarantee of special status to Kashmir. It was the sole tunnel through which the constitutional relationship between the Union and the State of J&K was to travel.
There is a mistaken belief that this status could be abrogated by the Union by issue of Presidential proclamations under this very Article 370, enlarging the Union’s jurisdiction over the State. This is a clear misconception as would follow unequivocally from the reading of the debates in the Constituent Assembly of India on Article 370, as well as proper in-depth analysis of it.
The wise men who framed the Constitution and with it Article 370, not only guaranteed a special status for J&K, but they also guaranteed that the state would have its own Constituent Assembly to enact a Constitution for the state. Till that was to happen, the constitutional relationship was to be regulated largely through the tunnel of Article 370, with the concurrence of the Constituent Assembly of J&K.
The Constituent Assembly was assumed to be the expression of the will of the people. A careful analysis of Article 370 (2 & 3) would establish this factum of supremacy of the Constituent Assembly of J&K and its Constitution, that was promulgated in 1956-57. It was neither the creation of Article 370 nor any other part of the Constitution of India. It was independent.
Constitutions are ‘sui generis’ and are not temporary creations, unlike laws made under the Constitution. Even the amendatory power of the Union Parliament under Article 368 was kept out by making it inapplicable. These foundational facts have to be properly appreciated because the framers had ordained so in their wisdom and foresight.
There are two things that are meaningful and interesting that need to be understood. Article 1 carves out a federal structure when it states that "India is a Union of States" but J&K was not made part of this federal structure by virtue of Article 1 alone. It is Article 370, in fact, which allows Article 1 to operate on Kashmir. But for Article 370, Kashmir would not have been part of the "Union of States”. The protagonists of nationalism and "integration” forget this one important fact.
The other factor overlooked is that the real integration of Kashmir into the Indian Union was guaranteed by the Constitution of J&K when it categorically proclaimed so in its Article 3. This Article was also made un-amendable. This is how the Kashmiris’ corroborated their immutable option of merging in the Union. What can we call this? Is it something less than the desired hallowed "integration" of J&K and the Union, or if I may say so, are we not questioning the wisdom of the framers of our own Constitution and doubting their patriotism and their nationalism?
The dictionary meaning of “integration" simply states, “to make parts into a whole”. In other words, to complete the whole thing, (Union) our Constitution does not define any particular manner of “integration". This was deliberately kept fluid and flexible. The word "integration" is not used anywhere in the body or the spirit of our Constitution. The word “accession” has been used only in relation to Instruments of Accession, which provided ceding of states into the Union. Kashmir was different in this regard from other mergers. The framers were creating a federal structure without any limitation on its character and shape. They were, therefore, flexible.
The federal structure in our Constitution does not even remotely promote any particular kind of integration of states, nor does it require any kind of uniformity in the integration of all states. Neither the framers nor Parliament, acting as Constituent Assembly, post-Constitution, ever accepted the principle of uniformity in merger and integration. Then why this “unsolicited and irrational clamour” about final integration of Kashmir? It is distasteful, because it portrays Kashmiris as those who were reluctant to integrate and, therefore, had to be compelled by the force of the nation to integrate as others.
However, neither the Government of India nor the proponents of this uniformity give one reason for why this was required. The statements accompanying the abrogation of Article 370 made by the Home Minister as well as those around him, pitched this as a sublime national cause. Controversies that were, in fact, imaginary were raked up to buttress the nationalism and patriotism causes. No one stood up to reason these assumptions.
The question that begs an answer from the powers that be is that, why is uniform integration necessary before one can claim, more importantly, the Kashmiris, that Kashmir has now been truly integrated? Whose definition of integration is this? Is it that of the nationalist patriots or is it one that is prescribed by the law and the Constitution? A question further arises, can we interpret the word “integration” as per one’s whims and fancies, ignoring the Constitutional mandate?
Every nation has got to have some moral code to tie up the loose ends. Our Constitution is one such golden thread that binds the nation. It bases itself on the touchstone of federalism. It creates this nation as a federal structure, aligning the States as per their peculiarities. It contained the seeds of cultural as well as linguistic federalism, which has kept the nation together, all these years. Force was rarely used to compel merger. Kashmir itself ceded and sealed the merger permanently. Yet, we doubt that merger in the name of some fancy “integration” unknown to the Constitution.
This reminds me of what Nehruji said on June 26, 1952, “And 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- presuming, of course, that the people of Kashmir do not want it. Are we going to coerce and compel them and thereby justify the very charges that are brought by some misguided people outside this country against us?
Do not think that you are dealing with a part of Uttar Pradesh, Bihar or Gujarat. You are dealing with an area, historically and geographically and in all manner of things, with a certain background. If we bring our local ideas and local prejudices everywhere, we will never consolidate. We have to be men of vision and there has to be a broad-minded acceptance of facts in order to integrate really. And real integration comes of the mind and the heart and not of some clauses which you may impose on other people.”
This essay would be incomplete without the quote of another doyen amongst Indians, Rabindranath Tagore. In 1908, the poet said, “Patriotism can't be our final spiritual shelter. I would not buy glass for the price of diamonds and I would never allow patriotism to triumph over humanity as long as we live". The creator of our National Anthem was echoing the same sentiments as the creator of Modern India. They reflected the spirit that pervaded our federal structure, as visualised in Article 1, when it proclaims “India is a Union of States”. It is not by compulsion or force but compassion for the people - "humanity of Tagore”.
Respect for the Constitution is the only road to true nationalism. Those who do not respect the Constitution cannot be patriotic. Kashmir is not merely a piece of land, only to be fought for. It is the people of Kashmir, who opted voluntarily to integrate with India, need to be protected and preserved. Their ‘Kashmiriyat’ needs to be preserved. This is what Article 355 provides when it requires Union to protect the States against external aggression. We, therefore, have to reflect on what has been done. By an Executive Order, issued in the name of President under Article 370, what has been abrogated is the Constitution of Kashmir which the Kashmiris had given onto themselves.