J&K: Reverse swing

New Delhi’s interlocutors for Jammu and Kashmir (J&K) are back in the news. Last week, there were some media reports that they had recommended the restoration of pre-1953 status for the state. In the wake of these reports, there was uproar in the state legislative assembly. The Bharatiya Janata Party and its allies staged a walkout, branding the reported recommendation as “anti-India” and demanding that the central government reject it out of hand. As of this writing, it is not clear if the interlocutors have indeed made such a recommendation.

Nevertheless, it is important to understand what the restoration of the pre-1953 status means and why it is likely to feature in any serious effort to address the Kashmir problem.
The issue of Kashmir’s autonomy, including the pre-1953 status, has been the subject of much myth-making. On the one hand, the Sangh Parivar and its associates have for long demanded the wholesale abrogation of Article 370, never mind reverting to pre-1953 status. Article 370, they claim, inhibits the “complete integration” of the state with India. From a historical and constitutional standpoint, this is utterly untenable. On the other hand, champions of Kashmir’s cause present even pre-1953 status as little more than an effort by New Delhi to whittle down the state’s autonomy. To be sure, successive central governments are responsible for reducing the state’s autonomy to a cruel joke. But the pre-1953 arrangements remain an important attempt at reconciling the autonomy of Kashmir with the imperatives of the Indian constitution.
Let’s start from the beginning. The Maharaja of J&K acceded to the Indian Union in October 1947. The Instrument of Accession specified only three subjects for accession: foreign affairs, defence and communications. In March 1948, the Maharaja appointed an interim government in the state, with Sheikh Abdullah as prime minister. The interim government was also tasked with convening an Assembly for framing a constitution for the state. Meantime, the constituent assembly of India was conducting its deliberations. Sheikh Abdullah and three of his colleagues joined the Indian constituent assembly as members, and negotiated Kashmir’s future relationship with India. This led to the adoption of Article 370 in the Indian constitution.
Article 370 restricted the Union’s legislative power over Kashmir to the three subjects in the Instrument of Accession. To extend other provisions of the Indian constitution, the state government’s prior concurrence would have to be obtained. Further, this concurrence would have to be upheld by the constituent assembly of Kashmir, so that the provisions would be reflected in the state’s constitution. This implied that once Kashmir’s constituent assembly met, framed the state’s constitution, and dissolved, there could be no further extension of the Union’s legislative power. It was thus that the state’s autonomy was guaranteed by the Indian constitution.
Another provision of Article 370 is worth underlining. Article 370(1)(c) explicitly mentions that Article 1 of the Indian constitution applies to Kashmir through Article 370. Article 1 lists the states of the Union. This means that it is Article 370 that binds the state of J&K to the Indian Union. The removal of Article 370 would render the state independent of India. There was a good reason why the article was framed in this fashion. In 1949, when these discussions took place, it was likely a plebiscite would be held in the state. The framers of the Indian constitution had to take into account the possibility that they may have to let go of J&K. The Sangh Parivar’s demand for removing Article 370 betrays their naiveté and ignorance.
The constituent assembly of Kashmir met for the first time in November 1951. Even as it got down to its work, Abdullah wanted to depose the Maharaja and end dynastic rule in Kashmir. Jawaharlal Nehru had no love lost for the Maharaja. But the move to depose the ruler raised serious constitutional issues; for the Maharaja was recognised by the President of India. More important, it underscored the need to settle the broad principles governing the relationship between Kashmir and India. This was necessary to ensure that Kashmir’s constitution consorted smoothly with that of India. Following intense negotiations, Nehru and Abdullah concluded an accord in July 1952.
Under the “Delhi Agreement” the union’s authority would be confined to the three subjects of accession; the residuary powers would be vested in the Kashmir government. The residents of the state would be citizens of India but the state legislature would define and regulate their rights and privileges. The head of the state would be recognised by the President of India on the recommendation of the state legislature. Delhi could only exercise emergency powers on the request of the state government. These were the contours of the “pre-1953” autonomous status for Kashmir.
Unfortunately, the accord failed to hold following the rift between Nehru and Sheikh Abdullah (which resulted in the latter’s imprisonment). Thereafter, successive Indian governments sought to shore up their slipping hold on Kashmir by creatively undermining the state’s autonomy. For instance, by a gross misuse of Article 370’s provisions the central government continued to extend its powers over Kashmir by merely seeking the approval of pliant state legislatures. New Delhi argued that since the constituent assembly of Kashmir had wound up in November 1956, the powers granted to that body should be vested in the state legislature. The intention of the framers of the constitution was, of course, just the opposite. What is worse, this reading was upheld by the Supreme Court, thereby making a mockery of Article 370.
Any sincere attempt to bridge the gulf between India and Kashmir will have to undo this travesty. The autonomy report advanced by the National Conference government in 1999 made some concrete suggestions in this regard. It candidly accepted that not all the presidential orders made under Article 370 since 1953 need to be rescinded. The important thing was to reaffirm and uphold the principle that constitutional limits ought to be respected. The Delhi Agreement of 1952 could yet provide a useful starting point.

Srinath Raghavan is a Senior Fellow at the Centre for Policy Research, New Delhi