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Article 370: a constitutional history of Jammu and Kashmir

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DOI: 10.1177/0306396814542921

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Article 370: a constitutional history of Jammu and Kashmir

Aijaz Ashraf Wani
Race Class 2014 56: 93
DOI: 10.1177/0306396814542921

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542921
research-article2014
RAC0010.1177/0306396814542921Race & Class

Review
SAGE
Los Angeles,
London,
New Delhi,
Singapore,
Washington DC

Article 370: a constitutional history of Jammu and Kashmir

By A. G. NOORANI (Oxford, Oxford University Press, 2011), 480 pp.
£30.00

Jammu and Kashmir (J&K) has the distinction of being the only State in the Indian
Union that negotiated its terms of accession. The result of the parleys, spread
over months, between the Central and State leaderships was the special status
given to the State within the Indian Union, providing greater autonomy and
legalised through Article 370 of the constitution. However, from October 1949
when the Constituent Assembly of India inserted Article 306A, which from 17
November 1952 became operative as Article 370, J&K state was ensured auton-
omy within the Indian Constitution. Right away it became a bone of contention
between two diametrically opposing groups, within the State and at the Centre.
One school of thought, commonly known as the Integrationists (adhered to
by the Vishwa Hindu Parashad and Bharatiya Janata Party [BJP]), vehemently
opposed granting any special position to J&K and demanded full integration of
the State in the Indian Union. Its slogan from the beginning was ‘Ek Pradhan, Ek
Vidhan, Ek Nishan’ (One PM, One Constitution, One Flag). Scholars who sup-
ported this school argued that the militancy and secessionist movement in J&K
was the result of the undue privilege meted out under Article 370.
In opposition, there is a very strong demand, essentially voiced by the J&K
National Conference but supported by many groups and scholars both within
and outside the State, for maintaining the special status. This school favours the
restoration of the autonomy that it maintains has been severely eroded since the
Delhi Agreement of 1952. Its proponents strongly contest the argument of their
opponents that autonomy was in any way responsible for the emergence of the
secessionist movement in J&K. On the contrary, they argue it was the breach of
trust and the continuous erosion of autonomy on the part of India (done illegally
and unconstitutionally) which resulted in creating that sense of alienation
among the people of the State. This school strongly supports the restoration of
autonomy as the only viable solution to the vexed Kashmir problem.

Race & Class

Copyright © 2014 Institute of Race Relations, Vol. 56(2): 93­–95
10.1177/0306396814542921 http://rac.sagepub.com

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94  Race & Class 56(2)

Legal luminary, columnist and author A. G. Noorani essentially belongs to the

latter school of thought. His book, Article 370: a constitutional history of Jammu and
Kashmir covers a wide range of politico-constitutional developments in the J&K
State from 1947 to 2010, tracing the checkered story of the relationship between
the State and the Indian Union so as to give a comprehensive picture of how the
history of broken promises unfolded and how, in the absence of a cohesive coun-
ter-fight, power won out.
From J&K’s accession to India in 1947 to various negotiations thereafter –
Sheikh Abdullah’s arrest to the framing of the State’s constitution, the granting
special status down to its complete erosion and the replacement of Sadr-i-Riyasat
and finally providing a draft proposal for the restoration of Article 370 – the
twelve chapters cover every aspect of the constitutional history of the State. The
author not only exposes many Central leaders but also puts Kashmiri leaders in
the dock for not rising up against the ‘injustice’ meted out to their people.
Noorani states that Sheikh Abdullah and Home Minister Sardar Vallabhbhai
Patel had serious disagreements over the original draft of Article 370, and it was
unilaterally altered by N. Gopalaswamy Ayyangar without the consent of the
Sheikh and his colleagues. Had the originally agreed draft been approved, the
dismissal of Sheikh Abdullah later in 1953 would have been impossible. ‘It was
an unfortunate breach that created distrust’, concludes Noorani.
The book reveals that Nehru ditched his friend Sheikh Abdullah, for even he
was for abrogation of Article 370. Nehru told the Lok Sabha on 27 November
1963, that

it has been eroded, if I may use the word, and many things have been done in
the last few years which have made the relationship of Kashmir with the Union
of India very close. There is no doubt that Kashmir is fully integrated … We
feel this process of gradual erosion of Article 370 is going on. Some fresh steps
are being taken and in the next month or two they will be completed. We
should allow it to go on.

Article 370 should come as a big jolt to the BJP and other anti-autonomy groups
as it provides documentary evidence to show that Article 370 had the full approval
of the late Shyama Prasad Mukerjee – whom the BJP invariably invoke while
voicing opposition to Article 370. The book also states that this constitutional
provision also had the complete approval of the then Home Minister Sardar Patel,
whom again the BJP cite as a strong opponent of Nehru’s move to grant special
status to J&K.
Noorani states that Article 370 was a solemn compact, resulting from serious
negotiations, with neither side mandated to amend or abrogate it unilaterally,
except in accordance with the terms of that provision. However, the reality always
remained somewhat different. He quotes the then-Home Minister Gulzari Lal
Nanda in the Lok Sabha on 4 December 1964: ‘With regard to the rest of India, if

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 Review 95

a state’s powers are to be curbed, and correspondingly those of the Union

enlarged, the elaborate procedure laid down in Article 368 will have to be fol-
lowed. However, in the case of J&K, a mere executive order by the President
under Article 370 would suffice.’ That is exactly what happened; at the end of the
day, Article 370 became a fiasco.
Here we have a strong case for restoring full autonomy to Jammu and Kashmir.
Via ninety-two historical documents which are reproduced, the book suggests
revisiting Article 370 with a draft proposal. Noorani believes that with political
will, sincerity of purpose and a spirit of compromise, it would not be difficult to
retrieve from the wreckage of Article 370 a constitutional settlement to satisfy the
aspirations of the people of Jammu and Kashmir. Though the arguments and
facts documented in the book are not new, its uniqueness lies in the evidence it
provides to support the arguments. The author has painstakingly collected
together rare, often unseen and unnoticed, letters, memoranda, White Papers,
proclamations and amendments that give this book authenticity and make it an
indispensable source on Kashmir.
One can hardly find any gaps and its only drawback is that its language may
restrict its readership a bit. Since the book is mostly in the form of Resolutions,
White Papers and proceedings, in the form of what one might call constitutional
language, it may be difficult for everyone to understand. A bit of commentary on
the part of the author on these documents would have been appreciated. Also,
the price of the book is slightly on the high side.
However, this in no way takes credit away from the author. It is a book that can
be studied by all, irrespective of discipline – an essential read for all policymakers
and students of Kashmiri history and politics.

University of Kashmir AIJAZ ASHRAF WANI

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