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Abstract
Article 370 of the Indian constitution gives the northern province of Jammu and Kashmir special status within the union. Today that provision forms a nucleus of fierce political contention between secularists and religious nationalists in India, despite the manifest whittling down of the article's most significant aspects. This development is counterintuitive: the original intent of the article's introduction had no relation to questions of religion. This essay attempts to understand this unanticipated role, as a marker of the state's secularity or lack thereof, the article has come to play in Indian politics. It contends that the seeds were sown even at the time of shaping the Indian constitution of a perspective that viewed the people of Jammu and Kashmir according to their religious affiliations.
Notes
1 However, in the Constituent Assembly debates Jawaharlal Nehru and the drafter of article 370, N. Gopalaswami Ayyangar, insisted on the technicality that the accession was complete and all that remained was a confirmation by the people. The assumption was that a positive affirmation was forthcoming. Constituent Assembly Debates [henceforth CAD], vol. VIII, 27 May 1949 (no page numbers in the digitized records of the debates). http://parliamentofindia.nic.in/ls/debates/debates.htm.
2 Although the word ‘secular’ as a description of the Indian state was only added to the preamble through the forty-second amendment in 1976, it was always implied both in the assembly debates and in the constitution it produced.
3 CAD, vol. VIII, 27 May 1949.
4 Mahavir Tyagi cited in Gyanendra Pandey, Remembering Partition: Violence, Nationalism and History in South Asia. Cambridge: Cambridge University Press, 2001, p. 163.
5 Vallabhbhai Patel cited in Pandey, Remembering Partition, p. 163.
6 CAD, vol. IX, 20 Aug 1949. The article numbers in the draft constitution differed from those in the final version that came into force on 26 January 1950. Article 280 became article 352 in the final version.
7 See Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, translated by D. Heller-Roazen. Stanford, CA: Stanford University Press, 1998. See also the sequel: Giorgio Agamben, State of Exception, translated by Kevin Attell. Chicago: University of Chicago Press, 2005.
8 CAD, vol. IX, 20 Aug 1949.
9 Agamben, via Carl Schmitt, argues this in the context of Western states but his views are equally relevant for the Indian state.
10 CAD, vol. IX, 20 Aug 1949.
11 Ibid.
12 In Hyderabad the Muslim nizam and his infamous Muslim razakars (private militia) were accused of unleashing terror to resist the state's accession to India; in Bengal the Noakhali riots had seen Muslim aggression against Hindus in late 1946; and in the case of Kashmir, Muslim Pakistan and the Muslim tribal raiders it had mustered were seen as the aggressors who provoked the first war with India in October 1947.
13 CAD, vol. VIII, 27 May 1949.
14 CAD, vol. I, 21 Dec 1946; vol. III, 28 Apr 1947; and vol. VII, 4 Nov 1948.
15 N. Gopalaswami Ayyangar was a distinguished civil servant who had been closely associated with J&K in various capacities, including serving as the princely state's prime minister from 1937 to 1943 and as a member of its council of state from 1943 to 1947. He was the principal drafter of article 370.
16 CAD, vol. VIII, 27 May 1949.
17 CAD, vol. VIII, 27 May 1949.
18 The All Jammu and Muslim Conference had been founded in 1932 and included Muslim representatives from both Kashmir and Jammu. In 1939, Sheikh Abdullah renamed the party the All Jammu and Kashmir National Conference. The Jammu members broke away and formed a separate party in 1941 by reviving the older name, Muslim Conference, under the leadership of Choudhary Ghulam Abbas.
19 These worthy boycotters included the NC under Sheikh Abdullah's leadership.
20 CAD, vol. VIII, 27 May 1949.
21 In the end, the four representatives from J&K who joined the Constituent Assembly on 16 June 1949 were Sheikh Mohammad Abdullah, Mirza Mohammad Afzal Beg, Maulana Mohammad Sayeed Masoodi and Moti Ram Baigra.
22 Balraj Puri, Jammu and Kashmir: Triumph and Tragedy of Indian Federalisation. New Delhi: Sterling, 1981, p. 93.
23 A.G. Noorani, ‘Kashmir: Blunders of the Past’. Frontline Vol. 23. Issue 25 (2006). www.frontline.in/static/html/fl2325/stories/20061229001008100.htm, accessed 3 Jan 2018.
24 Ian Copland, State, Community and Neighbourhood in Princely North India, c. 1900–1950. Palgrave MacMillan UK, 2005, p. 154.
25 Noorani, ‘Kashmir: Blunders of the Past’.
26 Copland, p. 156.
27 S.K. Sharma and S.R. Bakshi (Eds.), Nehru and Kashmir. Jammu: Jay Kay Book house, 1995, p. 308.
28 Needless to say, when this Muslim-ness began to exceed state-ascription – as it did most resoundingly from 1990 onwards – and was re-appropriated as an idiom of resistance among Kashmiris, it had to be declared illegitimate and erased.
29 A.G. Noorani, ‘Kashmir: Blunders of the Past’.
30 CAD, vol. VII, 15 Nov 1948.
31 CAD, vol. VII, 3 Dec 1948.
32 The immediate – though not the only – provocation for Nehru's intervention was the speech made earlier that day by Sardar Bhopinder Singh Man (East Punjab), who objected to what he saw as a discriminatory policy adopted against Hindu and Sikh refugees but favouring Muslims wishing to return from Pakistan. For him this represented a “weak sort of secularism” that demonstrated partiality towards even Muslims like the Meos who had questioned the integrity of India before Partition. CAD, vol. IX, 12 Aug 1949.
33 Ibid.
34 Particularly revealing of a Hindu majoritarian mind-set are the debates on rights relating to religion, especially on the question of the right of minorities to propagate their faith. See CAD, vol. III, 1 May 1947. See also Govind Ballabh Pant's discussion of safeguards for minorities warning them at the same time not to look outside the territorial confines of India for the protection of their rights. As he put it, the surest assurance for the minorities would come from the “goodwill” of the majority. CAD, vol. II, 24 Jan 1947. Importantly, these views were expressed in the assembly before Partition had become an irrevocable certainty. Partition, it would appear from the tenor of some of the participants in these debates, hardened such majoritarian views but did not create them.
35 Christians, too, were put on notice but mostly on the question of proselytization. Their numbers were presumably too small either to constitute a threat to power or to alter the character of India.
36 Vallabhbhai Patel cited in Pandey, Remembering Partition, pp. 162–163.
37 CAD, vol. VII, 15 Nov 1948.
38 CAD, vol. X, 17 Oct 1949.
39 Letters exchanged between S.M. Abdullah and N.G. Ayyangar, dated 17 and 18 October 1949, in A.G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir. New Delhi: Oxford University Press, 2014, pp. 72–77.
40 CAD, vol. XI, 21 Nov 1949.
41 CAD, vol. XI, 19 Nov 1949.
42 Government of India, Ministry of Law and Justice, The Constitution of India (As modified up to the 1st December, 2007), pp. 243–244 and 357–396. The appendices reflect changes made in 1954 and in 1964–1965. The latter represented a significant departure from the original article. These revised articles extended to Kashmir, inter alia, the central government's authority to dismiss elected state governments and appropriate the latter's legislative powers.
43 See Noorani, Article 370, and Sumantra Bose, The Challenge in Kashmir: Democracy, Self-Determination and a Just Peace. New Delhi: Sage, 1997.
44 PTI, ‘Kashmiri Pandits demand homeland, revocation of Article 370’. The Indian Express, August 27, 2017. http://indianexpress.com/article/india/kashmiri-pandits-demand-homeland-revocation-of-article-370-4816348/, accessed 20 Feb 2018.
45 Hari Om Mahajan, ‘When Nehru Government Tried to Omit the Word “Jammu” From “Jammu and Kashmir”’. Swarajya, July 29, 2017. https://swarajyamag.com/politics/when-nehru-government-tried-to-omit-the-word-jammu-from-jammu-and-kashmir, accessed 22 Feb 2018.