Review: The (Un)Making of Article 370

Reviewed Work(s): Artide 370: A Constitutional History of Jammu and Kashmir by A G

Noorani
Review by: RAKESH ANKIT
Source: Economic and Political Weekly , FEBRUARY 11, 2012, Vol. 47, No. 6 (FEBRUARY
11, 2012), pp. 33-35
Published by: Economic and Political Weekly

Stable URL: https://www.jstor.org/stable/41419818

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 Kashmir - Karan Singh - made a procla-
The (Un)Making of Article 370 mation declaring that it "shall insofar as
it is applicable to the state of Jammu and
Kashmir, govern the constitutional rela-
RAKESH ANKIT tionships between this State and the
contemplated Union of India" (p 8). On
26 January 1950, the day India became a
of documents on Article 370, republic, President Rajendra Prasad
AG which of Noorani'
whichs contains
documents containspro-book on "temporary is Article a collection pro- 370,
"temporary
Artide 370: A Constitutional History of Jammu
made his first order under Article 370,
visions" in the Indian Constitution with and Kashmir by A G Noorani (New Delhi: OUP), 2011; extending specific provisions of the new
respect to the state of Jammu and Kash- ppxvi+487,Rs850. Indian Constitution to the state of Jam-
mir. It documents the five-month long mu and Kashmir.

negotiations which preceded the enact- chapter which have been in the public
ment of Article 370 on 17 October 1949 domain for long and they really do no Widening Divergence
and, thereafter, traces the constitutional more than set the scene for the negotia- In the next two years, 1950-52, as the
evolution of the state of Jammu and tions leading to the "framing of constitu- state embarked upon convening its own
Kashmir and its relationship with the tion" for the state and "the subjects in Constituent Assembly to frame its own
Union of India, bringing the story to respect of which the state should accede Constitution, the bone of contention
present day. The collection, as Noorani to the Union of India" (p 4). emerged: Nehru was eager to secure
clarifies in his introduction, is confined These negotiations took place over Kashmir's "closer integration" with India;
to the internal Indian aspects of theMay-October 1949. Sheikh Abdullah, the Sheikh Abdullah was eager to preserve
Kashmir question and does not engage prime minister of Kashmir, met Jawa- its autonomy; and it has remained thus
with plebiscite and secession. harlal Nehru and Vallabhbhai Patel in the till today in the day of Nehru's great-
Noorani is a veteran constitutional Indian capital in May, joined the Consti- grandson and Abdullah's grandson.
tuent Assembly of India along with his Indeed, the high point of Noorani's in-
lawyer and writer. His aim is to show the
hollow reality of "the special status"associate,
of in June and corresponded with troduction is the straightforward way in
N Gopalaswamy Ayyangar who, though which he shows the widening diver-
the state of Jammu and Kashmir and his
method is to trace the steps by which minister for railways, was looking after gence of views between Abdullah and
Article 370 was "eroded" by "consciousthe constitutional negotiations with Nehru before and after their Delhi
Kashmir. An exchange between Ayyangar Agreement of July 1952. The documents
executive acts" to the point where "only
to Abdullah in October 1949 (pp 72-76) in Chapters 3 and 4 pertaining to the
the shell" was left (pp 2-3). His hope isand
"retrieve from the wreckage of Article shows the differences between Patel work of the Jammu and Kashmir Con-
and Abdullah on key matters relating stituent
370, a constitutional settlement which to Assembly and Nehru-Abdullah
satisfies the aspirations of the people the correspondence leading to the Delhi
of power of Indian Parliament to make
Jammu and Kashmir" (p 28). To that Agreement bring to light a period and
laws for Kashmir, application of the pro-
end, he makes his own contribution and visions of the Indian Constitution in re- events which have seldom received com-
lation to Kashmir in matters which di-
presents a draft of the article as the last prehensive treatment. Nehru's desire for
item in the book. rectly are related to the three subjects of "a unilateral finalisation of accession by
defence, foreign affairs and communi- the State's Constituent Assembly to the
Noorani's starting point is, as it has
cations specified in the Instrument of exclusion of Pakistan" was diametrically
been for decades of writing on Partition
Accession and, importantly, the ap- opposite to Abdullah's attempt to seek
and accession, the Cabinet Mission of
1946. Apart from the much dissected pointment, status and continuation of "finality by an agreement on Kashmir
the Abdullah ministry in Kashmir. This between India and Pakistan", spelt Ab-
statement of 16 May 1946, Noorani also
is an important reproduction as it shows dullah's "political suicide" (p 10) and,
produces extracts from the Cabinet Mis-
sion's Memorandum on Indian States, how Ayyangar unilaterally amended eventually, led to the "ruthless and un-
the draft text of the article over Abdul- constitutional" dismissal and later arrest
Treaties and Paramountcy, the Indian
lah's protests, gives Patel's justification of Abdullah on 9 August 1953, all cata-
Independence Act of 1947, the Instru-
ment of Accession of the state of Jammu
for this (p 77), paints Abdullah's anguish logued in Chapters 5 and 6.
and Kashmir to the Indian Dominion andand throws light on an event which The next 20 years were a period of
would later have unfortunate and deep sordid governance in the state. Sheikh
correspondence, proclamations and
white paper surrounding its circum- consequences. Abdullah spent 12 years in four different
stances and immediate aftermath (Octo-A day before the Constituent Assem- spells of arrest, detention and intern-
bly of India adopted the Constitutionment
ber 1947- June 1949). There is nothing of in this period. Jammu and Kashmir
new in the 10 documents of the first India on 26 November 1949, the ruler suffered
of successively under the corrupt

Economic & Political weekly ШШ9 February 11, 2012 vol xlvii no 6 33

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Bakshi Ghulam Mohammad and the it "worse than useless" and "harmful to
replaced by that of the governor who is
appointed by the centre and the state
Kashmir's rights and interests" having
ineffective Ghulam Mohammad Sadiq and
the Congressman Syed Mir Qasim, while assembly barred in 1975 from restoring
"neither legal efficacy nor moral worth"
the pre-1965 position.
(pp 17-18). One may add here the politi-
putting together a Constitution and hold-
ing elections starting from 1957 whichcal consequences as well since the
Failure of the Indian State
mounting disenchantment in the state
were farcical and rigged. Noorani brings
with the gap between the ideals The
together a mountain of material relating of largely violent story of Kashmir in
India's democracy and the realitythe
to the work of the Constituent Assembly of last 20 years has been academically
in Srinagar (Chapter 7) and duly pro- and journalistically best understood
New Delhi's relationship with Srinagar
duces the Constitution of Jammu and through the rise and fall of Srinagar's
was to violently erupt in the late 1980s
Kashmir (Chapter 8). By now, however, and provide the most serious challenge
ambitions - be it in demanding azadi or
the essence of Article 370 had been to India's democratic and secular cre- removing the Armed Forces Special
"wrecked" irrevocably by a seemingly ir- dentials throughout the 1990s. Powers Act (afspa) - and the limitations
reversible process of "erosion" (Chapters Today, the constitutional irony is in-(military and political) and strengths
9-11) in which, apart from the central ex- deed total in the case of Jammu and (economic and diplomatic) of the Indian
ecutive, the Indian judiciary also joined Kashmir. Starting from "a special sta-state. Grievances - in particular elector-
in as shown by the flawed judgments of tus" in 1947, it is now, Noorani shows, inal malpractices and human rights viola-
four cases, cited by Noorani, which gave "a status inferior" to that of the other tions - have accumulated against an un-
a carte blanche to New Delhi to do as it states whether it is in relation to the cen-willing, unable or neglectful New Delhi.
pleased in Jammu and Kashmir (pp 14-16). tre's powers to legislate on matters in
In the course of all the legal and military
Noorani is particularly severe, and the State List, pass executive orders to-
wrangling by the Indian government®,
justifiably so, on the 1975 "accord of po- wards president's rule or command re-the people of Kashmir have repeatedly
litical cooperation" between Indira siduary power in relation to the state.sought to rise up.
Gandhi and Sheikh Abdullah. "Based The coveted office of Sadar-i-Riyasat Recent historiography has shown that
(Head of State) was abolished in 1965,the mobilisation and deinstitutionalisation
on a fundamental error of law", he calls

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34 FEBRUARY 11, 2012 VOL XLVII NO 6 Ш Economic & Political WEEKLY

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 EEE=E BOOK REVIEW

being confronted by Nehru. Noorani

institutions of political representative-
of Kashmiri politics, nature of federal
autonomy in Kashmir and cries of ness itself. also skims over the 1990s and does not
ethno-national separatism point to a bring out the enhanced complexities in
Short on Analysis
failure on the part of an Indian state, the way of any constitutional attempts
which has been absorbed in its secular
Noorani is a prolific and vastly knowl- of this nature in the twin-political devel-
edgeable writer but this book is long on
psyche and security concerns, to har- opments of coalition politics in New Del-
accumulation and short on analysis. As a
monise and reconcile nation-building hi and insurgency in Kashmir.
collection of historical documents (let-
and democracy with the Kashmiri aspi- If, all history - constitutional or cultur-
ters, memos, proclamations and white
rations. There is a need to argue, not al - reflects its period then, as Wm Roger
papers), legal judgments and constitu-
merely academically - as has been done Louis wrote, it is best understood while
- but publicly and in policymaking tional amendments, it is a very useful located within that period. If history is
reference book. This is more so as the
circles, for decentralised state struc- minimally, as Robin W Winks observed,
constitutional arrangement between the
tures from redefined premises of demo- three things - what happened in the past,
state of Jammu and Kashmir and the
cracy, sovereignty, legitimacy, citizen- what people believed happened in the
ship and rights. Union of India has not received as much past and what historians say happened in
popular attention as other aspects of the
Kashmir today is locked externally in the past - then Noorani's Ardele 370
Kashmir conflict. But the book essential-
a fourfold scheme of regional rivalry, (New Delhi: oup 2011) attempts only to
ly reads as a series of extracts from the
global intervention, religious identity address the first aspect. It presents before
and conflict resolution and internally documents, or the entire document, in us a mass of material but leaves it to us to

chronological order. While the docu-

within three levels of relationships: bet- examine it. It approaches a historically
ween Srinagar and New Delhi; between ments are grouped around major mile- contentious subject but leaves us to seek
stones along the 60-year history of
the politicians and the public within patterns in this history. Few aspects of
Article
Kashmir; and interactions between its 370 and, to that extent, struc- modern Indian history have seen greater
tured but also selective, they lack a tex-
different population groups. Every sig- shifts in popular or scholarly perceptions,
nificant event in the new century, betual
it narrative and a political context grown so vehemently in terms of the ton-
which could do better justice to the ma-
the 2008 Amaranth agitation, the sub- nage of writing and have added so many
sequent two summers of discontent, terial. The politics around the historical dimensions as the Kashmir dispute. In a
the 2010 initiative of three interlocutors
production of this trail of documents, certain sense, however, Noorani's work
or the latest attempt by the Omar
that Noorani presents, is absent. There is completes a cycle. The constitutional
a vast set of characters, their attitudes
Abdullah ministry to get the afspa question of accession was the paramount
and relationships and concerns which
revoked, can be understood within these Indian focus when the dispute emerged,
political paradigms. could have been discussed and analysed before getting overtaken by the themes of
so as to better unpack this collection
Given this political backdrop, with identity, security and self-determination.
of documents.
which he barely engages, Noorani be- Noorani brings it back as the central con-
lieves that a revised Article 370, denud-If the aim of the book was not to ana- cern as also providing attention to the
lyse but to merely chronicle the constitu-
ing the president and, therefore, the cen- possible "solution to the wider Kashmir
tral government of the power to alter tional
it, history of Jammu and Kashmir, problem".
will fit the fourfold external aspects there
of are some gaps; most notably the
decade of the 1980s. Noorani quotes from Rakesh Ankit ( rakesh.ankit@gmail.com )
dealing with Pakistan (reduction of the
В К Nehru's Nice Guys Finish Second
Line of Control to irrelevance, demilitari- studied history at Delhi and Oxford.

(New Delhi, 1997) but omits his difficult

sation, self-governance in both India and
Pakistan administered parts of Kashmir governorship (1981-84) of the state, his
EPW Index
and a joint management mechanism) removal
as and replacement by Jagmohan
well as dealing with the renewed callsand the subsequent removal of Farooq An author-title index for EPW has been
Abdullah's
for azadi. A constitutional breakthrough, ministry - an act of political prepared for the years from 1968 to 2010.
short-sightedness on the part of Con-
however, is neither imminent nor is it go- The PDFs of the Index have been uploaded,

gress which many believe to be, along-

ing to be as comprehensive as Noorani year-wise, on the EPW web site. Visitors can

thinks. The "pre-1953 status eroded side

as the farcical election of 1987, the
download the Index for all the years from the
site. (The Index for a few years is yet to be
back as 1963 is probably gone for ever. which broke the camel's back in
straw
prepared and will be uploaded when ready.)
the Srinagar Valley against India. В К
Any new constitutional settlement which
Nehru's papers are at nmml and they re-
enjoys popular support and is negotiated EPW would like to acknowledge the help of

freely between the representatives veal,

on in a particularly stunning sequence the staff of the library of the Indira Gandhi
of five letters he wrote to Indira Gandhi
both sides appears improbable given the Institute for Development Research, Mumbai,

over 1983-84, the enormity of immor- in preparing the index under a project
lack of political will, sincerity of purpose
supported by the RD Tata Trust.
and a spirit of compromise, but, above ality which was being contemplated by
all, the recent challenge to the idea and New Delhi against Srinagar and was

Economic & Political WEEKLY

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