ArticlePDF Available

THE INDIAN CONSTITUENT ASSEMBLY AND THE MAKING OF HINDUS AND MUSLIMS IN JAMMU AND KASHMIR

Authors:

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.
Full Terms & Conditions of access and use can be found at
http://www.tandfonline.com/action/journalInformation?journalCode=raaf20
Asian Affairs
ISSN: 0306-8374 (Print) 1477-1500 (Online) Journal homepage: http://www.tandfonline.com/loi/raaf20
THE INDIAN CONSTITUENT ASSEMBLY AND THE
MAKING OF HINDUS AND MUSLIMS IN JAMMU
AND KASHMIR
Mridu Rai
To cite this article: Mridu Rai (2018): THE INDIAN CONSTITUENT ASSEMBLY AND
THE MAKING OF HINDUS AND MUSLIMS IN JAMMU AND KASHMIR, Asian Affairs, DOI:
10.1080/03068374.2018.1468659
To link to this article: https://doi.org/10.1080/03068374.2018.1468659
Published online: 11 Jun 2018.
Submit your article to this journal
View related articles
View Crossmark data
THE INDIAN CONSTITUENT ASSEMBLY AND THE
MAKING OF HINDUS AND MUSLIMS IN JAMMU
AND KASHMIR
MRIDU RAI
Mridu Rai is a professor of history at Presidency University, Kolkata,
India. She is the author of Hindu Rulers, Muslim Subjects: Islam, Rights
and the History of Kashmir (2004) and of essays appearing in academic
and popular publications. Email: mridu.his@presiuniv.ac.in
When Indias constitution came into force on 26 January 1950, it
included a unique provision: article 370 that gave Jammu and
Kashmir a special status within the union. That state would have sep-
arate laws, its own ag, constitution and denition of citizenship,
while still forming a part of the territory of India. Its autonomy was
guaranteed except for the concession of some specic powers to the
central government. And even these ties to the union were conditional
on its people conrming their erstwhile rulers accession to India
through a plebiscite.
1
A fundamental principle underlying the Indian constitution is the states
secularism.
2
Thus, article 370 was a power-sharing pact with no refer-
ence to religion intended to ease the regions integration within the
union. Yet Jammu and Kashmirs very entry into the constituent assem-
blys deliberations was attended by a religiously informed understand-
ing of its people. Casting long shadows into the present, article 370
remains an instrument for chiselling Kashmiris into Hindus and
Muslims and the heart of a debate pitting Hindu nationalists against
secular nationalists in India. However, as this article maintains, the reli-
gious reference to the people of Jammu and Kashmir, even before the
inauguration of the Indian republic, was common to both religious
nationalists and self-avowed secularists among the constitutions
framers. The attempt here is to understand the paradox of a secular pro-
vision by a purportedly secular state opening the doors to a politics of
religion.
© 2018 The Royal Society for Asian Affairs
Asian Affairs, 2018
https://doi.org/10.1080/03068374.2018.1468659
The suspect Muslim in the constituent assembly debates
While the Constituent Assembly of India (CA) had begun its labours on 9
December 1946, the question of Jammu and Kashmir (J&K) only became
the subject of substantive discussions on 27 May 1949.
3
The delay was
attributed to the disturbances besetting the region at the time, especially
the recent war with Pakistan precisely for control over that states territories
which was ended through a United Nations mediated ceasere only
months earlier in January 1949. These restive conditions had meant that
the state had not yet sent representatives to the constitution-framing body.
By the time the question of J&K appeared on the roster of business, as
Gyanendra Pandey has shown, an understanding of the nation as Hindu
at its core and a concomitant suspicion of Muslims among several of
the assemblys members had become manifest. Informed by the recent
Partition, on 26 May 1949, in a debate on minority rights, a Congress
member of the CA from the United Provinces, Mahavir Tyagi, cautioned
potential Muslim candidates for elections to the legislatures: The
Muslims, he said speaking of them as a monolithic entity, already
know they will not be returned for some time to come, so long as they
do not rehabilitate themselves among the masses and assure the rest of
the people that they are one with them.
4
Similar sentiments emanated
from no less a personage than Vallabhbhai Patel, the deputy prime min-
ister and home minister. In words saturated with menace, Patel told
Muslim members of the CA not to pretend to say Oh, our affection is
great for you. We have seen your affection Let us forget that affec-
tion. Muslims would have to prove they were not the disloyal other
in the implicitly Hindu nation by essentially agreeing with the views of
the majority even on minority rights. Ask yourself, he commanded
Muslim representatives in the House, whether you really want to
stand here and cooperate with us or you want to play disruptive tactics
…” (sic).
5
While these words were addressed specically to Muslim members of the
CA, the implication that the real intended audience was the community at
large became difcult to miss. The gure of the always potentially dis-
loyal Muslim looking to enfeeble the state from within was the foil
explicitly or implicitly around which Indias founding persons built
the new state and its norms of governance. This was evident in delibera-
tions on many issues but one discussed here as illustrative was the debate
over emergencyprovisions. Here, too, the fth column of the Muslim
community was made to loom ominously, providing useful pretexts.
2 THE INDIAN CONSTITUENT ASSEMBLY
On 20 August 1949, B.R. Ambedkar introduced an amended version of
article 280 for discussion.
6
Disagreement broke out over the proposed
power of the state to suspend certain fundamental rights in an emergency.
At issue were liberties that articles 13, 15 and 25 protected: the rights to
freedom of speech, protection of life and personal liberty, and the right to
seek constitutional remedy (for violations of fundamental rights) respect-
ively. In defending Ambedkars proposed emergency protocols, Alladi
Krishnaswami Ayyar (Madras) articulated what Giorgio Agamben
would later theorize, in a different context, as the state of exception.
7
Ayyar argued that the various freedoms and rights of citizens would
be secured in times of peacebut only so long as the security of the
State is guaranteed. In his view the latter was already, two years after
its independence, in peril: We are envisaging a situation threatened by
war, in a country with multitudinous people, with possibly divided loyal-
ties, though technically they may be citizens of India. The danger of war
may retreat in the indeterminate future but until then the constitution-
makers could not proceed on the footing that in regard to all citizens
of this country their loyalty is assured.
8
It does not require particularly
ne skills of perception to detect Tyagis and Patels perdious Indian
Muslim lurking in the picture; a gure rendered more dangerous
because of the war with Pakistan. Intriguingly, however, as mentioned
above, the war with Pakistan had been ended months earlier in January
1949. That threat, then, was already being treated as never-ending. A con-
comitant implication was of a permanently suspect Muslim community
within the borders of India.
Thakur Das Bhargava (East Punjab) and H.V. Kamath (Central Provinces
& Berar) cautioned that the denition of the term emergencywas
dangerously imprecise, leaving it entirely to the executive branch there-
fore, the political party in power to decide when such a situation had
arisen. Since citizensliberties were entailed, Bhargava wished to
protect these from any future panicky Cabinet. Both Bhargava and
Kamath were concerned not to give the executive more power than
was necessary. This was no trivial anxiety since at issue was a vital attri-
bute of sovereign power: the right to identify and declare an emergency
(or state of exception) and therefore suspend the ordinary operation of
laws.
9
As Kamath insisted, by these emergency provisions we are
seeking to lay the foundation of a totalitarian State, a Police State a
State where the rights and liberties of millions of innocent men and
women will be in continual jeopardy. Questioning further the necessity
for such drastic measures, Kamath saliently pointed out that despite
troublein Hyderabad, Kashmir, West Bengal and elsewhere, the
THE INDIAN CONSTITUENT ASSEMBLY 3
Central Government has lived and is getting on very well without pro-
claiming a state of emergency.
10
R.K. Sidhva (CP & Berar) joined the debate expressing antipodal views.
Agreeing that emergencywas a very exible wordhe insisted with
tautological certitude that it cannot be denied that an emergency is an
emergency. To buttress his point, he trotted out the usual suspects:
there are people outside who are enemies of the country, in this
country and also outside, mischief mongers who are out to create mis-
chief.Itwasagainst them”–his cryptic language poorly disguising
his reference to Pakistan and Indian Muslims that he wished to
protect Indias independence and for that he was prepared to sacrice
a little of [his] own freedom.
11
With Sidhvas intervention the argument had come full circle and radical
emergency powers for the executive were justied on the grounds of the
inassimilable Muslim. All dissenting voices were ignored. It is worth
noting that in the debates over emergency powers repeated references
were made to crises in Kashmir, Hyderabad and West Bengal; in all
three areas the alleged aggressors were Muslims.
12
Framed this way,
the idea of a loyal Indian Muslim was never going to materialize; and
so India and its security were permanently endangered and war and emer-
gency always around the corner if not already roiling parts of the country
such as Kashmir. In the latter, its Muslim majority living in territory con-
tiguous to the Muslim enemys became a particular cause for concern.
Jammu and Kashmir in the constituent assembly
On 27 May 1949, the assembly began its rst substantial discussions
relating to J&K.
13
The exchanges between certain members, though
lively, lasted only for a day (until the matter of J&K was taken up one
last time on 17 October 1949). Contention erupted over how the states
representatives to the CA would be chosen. It had been decided in
earlier discussions that, on the basis of population, J&K would be entitled
to send four representatives out of the 93 allotted to princely states.
14
But
the matter of choosing them had been left in abeyance because of the pre-
vailing disturbed conditions. N. Gopalaswami Ayyangar (Madras)
15
began the days business by moving for new rules to select the states
representatives. He acknowledged that until then, where legislatures
existed in princely states they had elected 50 per cent of the representa-
tives and the ruler nominated the rest. However, he argued, in Kashmirs
4 THE INDIAN CONSTITUENT ASSEMBLY
case the Praja Sabha its legislative assembly was dead, having last
held elections in winter 194647 and meeting only once before the war
with Pakistan intervened. In the circumstances, Ayyangar proposed that
Sheikh Mohammad Abdullah, the states prime minister and also the
leader of its most popular party, the All Jammu and Kashmir National
Conference (NC), be allowed to advisethe maharaja on the four repre-
sentatives he would nominate.
16
K.T. Shah (Bihar) immediately challenged this proposal. He argued that
technically, no matter how moribund, the Praja Sabha still existed. It
should, therefore, be allowed the rightto elect the states representa-
tives. So far his intervention was unexceptionable in democratic terms.
What was more problematical was Shahs imbrication of religious and
regional identities in order to question Sheikh Abdullahs qualication
to nominate the states representatives (via the maharaja). Against Ayyan-
gars contention that Abdullahs government represent[ed] the majority
of the Kashmir population, Shah noted that the population of Jammu
and Kashmir, put together, is something like 76 per cent Muslims and
24 per cent Hindus, including Dogras and other non-Muslims. If the
existing Praja Sabha were deemed inadequate, Shah suggested fresh elec-
tions to form a new one. He added that if the NC claims to represent the
entire or at least a large majority of the people of Kashmir, implicitly
doubting that it did, then there is no reason to fear that they cannot
send their representatives.
This linking of representativeness with the religious composition of the
states subjects was troubling to some. H.V. Kamath, for instance, under-
stood Shahs proposition to mean the revival of separate electorates, a
prospect that appalled him. While Rajendra Prasad, as president of the
CA, set those fears to rest, Shahs reference to religion had set the cat
among the pigeons. Going further, K.T. Shah asked members to remem-
berbesides the composition of the population of Kashmir, its geo-
graphical position, its connection and the possibilities [of what] may
happen there. These were dark hints to piece together in their minds
the disparate facts of Kashmiri Muslims, Kashmirs territorial contiguity
with Pakistan, and Muslim loyalty to Pakistan, to contemplate the result
of this explosive combination.
Shah demonstrated particular solicitude for the people of Jammu. He
suggested that the states name as it appeared in Ayyangars motion be
altered to describe it more correctlyas the State of Jammu and
Kashmir. Shah insisted that his proposed amendment carried more
THE INDIAN CONSTITUENT ASSEMBLY 5
signicance than a mere verbal emendation. Others, too, had objected
to Ayyangars nomenclature. Lakshmi Kanta Maitra (West Bengal),
though eventually satised by Ayyangars assurance that the designation
State of Kashmirincluded Jammu and Ladakh, still demanded that the
states nominees represent both these regions. And H.V. Kamath added
concern that Mirpur and Poonch also be represented. Shah, unlike
these others, in challenging Ayyangars (and Jawaharlal Nehrus)
Kashmir-centrism, was concerned solely with Jammus inclusion, not
the proper representation of all parts of the state.
Criticizing the Ayyangar-Nehru stance, he asked:
if we have been carried away by the importance of one section of the State, by the
importance of the personages connected with that part of the State, is that any
reason why we should forget the other and no less important part of the State?
His speech on that day was strewn also with elliptical references to the Quit
Kashmircampaign started by the leader of a responsible partyand
blaming it for the eventsthat followed and all the difculties that have
since ensued. These allusions are intriguing in that the Quit Kashmir move-
ment Abdullah and the Kashmiri Muslim-dominated NC had launched in
1946 called for the revocation of the Treaty of Amritsar through which
the British had handed the Valley to the Dogra maharajas a hundred
years earlier. The agitation was in opposition to monarchical rule and was
not framed in religious terms. Perhaps Shah was picking up on the trepida-
tion it had caused among Hindu subjects until then comfortably ensconced
in the states power structure. Insofar as it is possible to make any reasonable
inferences from his speech a collection of throwaway insinuations Shah
was urging a shift from the governments cosseting of Sheikh Abdullah, an
undependable gure somehow made culpable for instability in the state,
which in turn opened it up for Pakistans interference. He urged recognizing
instead the political worth (and centrality) of Jammu and its presumably
more reliably loyal people. I do not like this House to be a party to anything
that might look as if it was a surrender to one mans wishes,hesaid,
especially since Whether or not he holds the complete condence of all
the people of Kashmir has yet to be proved.
17
Nevertheless, K.T. Shahs assessment of Abdullahs limited popularity in
Jammu and Ladakh was correct. Indeed, Ladakhi politicians resented the
prospect of rule by Kashmiris with whom they felt no afnity either cul-
turally or politically. In Jammu, most Hindus were veering to Hindu
right-wing groups such as the Praja Parishad, the Rashtriya Swayamsevak
6 THE INDIAN CONSTITUENT ASSEMBLY
Sangh (RSS) and eventually the Bharatiya Jan Sangh (BJS). Most
Muslims in Jammu had been supporters of the Muslim Conference,
18
which remained antithetical to the NC and for merger with Pakistan.
However, Shahs own advocacy for privileging Jammu was based on
equally dubious grounds; Jammu-based leaders, including the Maharaja
Hari Singh (r. 19251952), were held in little regard in Kashmir,
where Abdullah was lionized, quite literally (his admirers had long
dubbed him Sher-e-Kashmir [lion of Kashmir]). Shahs proposal for
fresh elections being shot down on the grounds of the unstable conditions
in the state, he reverted to his suggestion that the Praja Sabha send the
states representatives.
In the end, it took Jawaharlal Nehrus railroading to settle the issue along
his preferred lines, which were those put forward by Ayyangar. Nehru
dismissed the Praja Sabha as a bogus body. The elections to it had
been held in fantastic and farcicalcircumstances and all decent
people in Kashmirhad boycotted them.
19
Nehru admitted that the prac-
tice of nomination was not desirablebut argued that in the current con-
ditions Ayyangars proposal was the best option. It would produce the
closest possible approximation to a democratic process since the nominat-
ing ruler would be acting on the recommendation of the head of a popular
government formed by a popular party. Nehru also made a small conces-
sion on the name of the state. In order to allay what he called a slight
confusion in peoples minds,hebeg[ged]Ayyangar to insert a modi-
cation in brackets: the state would now be termed the State of Kashmir
(otherwise known as the State of Jammu and Kashmir).
20
Although
Jammu made it into the parentheses, Ladakh was still missing. Clearly,
it was already the red herring conveniently dragged across the trail in
the contentious politics between Jammu and Kashmir and between
Delhi and Srinagar.
21
Hindu politics in Jammu
There were political developments outside the halls of the central legisla-
tive assembly that provide a useful background to Shahs and Nehrus
positions on the question of Jammu versus Kashmir. The spectre of ple-
biscite, in the words of Balraj Puri, was hanging over Jammu and
Ladakh. That plebiscite had been promised to all the states people by
Lord Louis Mountbatten, the last viceroy and rst governor-general of
India, and conrmed by Nehru, upon the maharajas signing the instru-
ment of accession to India in late October 1947. By it, the states
THE INDIAN CONSTITUENT ASSEMBLY 7
people would be given the opportunity to either conrm or reject the
accession. Fear that a state-wide plebiscite would go in Pakistans
favour made people in Jammu and Ladakh receptiveto proposals for
dividing the state and holding zonal plebiscitesinstead. Sheikh Abdul-
lah opposed outright any division of the state.
22
Nehru was aware of these moves, especially by Hindu groups in Jammu,
and the maharajas involvement in them. In a letter to Patel dated 17 April
1949, citing an intelligence report, he mentioned a growing Hindu agita-
tion in Jammu provincefor the zonal plebiscite animated by the belief
that a plebiscite for the whole of Kashmir is bound to be lost and therefore
let us save Jammu at least. He reminded Patel that the maharaja, Hari
Singh, had made a similar proposal a few months earlier. The movement
was spearheaded by the Jammu-based Praja Parishad, a political party
founded in November 1947 by the RSS activist Balraj Madhok. It rep-
resented overwhelmingly the interests of Hindu landlords and former of-
cials of the Dogra state. And, as the intelligence ofcer informed Nehru, it
was nanced by the maharaja, who was also dipping liberally into the
funds of the Dharmarth Trust (a religious endowment controlled by the
Dogra rulers) to whip up propaganda. In the end, Nehru was condent
that Jammu province was not running away from [India]and reminded
Patel that the prize we [India] are ghting for is the valley of Kashmir.
23
Fear among Muslims in both Kashmir and Jammu had already been
aroused by the maharajas, his state troopsand the RSSs roles in the
massacre of close to 80,000 of their numbers in Jammu at the end of
1947.
24
Sheikh Abdullah had written to Nehru and Gandhi in December
1947 about how during Hari Singhsight from Srinagar to Jammu, after
the tribal invasion, he had organised killings of Muslims in Jammu
for weeks under his very nose’”.
25
Refugee accounts and those of
English eyewitnesses corroborate Sheikh Abdullahs version of the
maharajas collusion in the pogrom. Hari Singh was seen with 4 truck-
loads of arms at Khana Chak (Jammu District), red the rst shot at the
Jammu refugee camp on [Eid] day, and gave orders to killat several
other places in the region. Furthermore, he distributed arms to the
RSS, even watched the slaughter of Muslims from his car at Narayana
(Mirpur). By and large, he set an example of fanaticism and extreme
sadism to his ofcers, to the troops and to assassins from outside the
State …”.
26
It is unlikely Shah was speaking in support of the maharajas or the Praja
Parishads course of action. But it is equally improbable he was unaware
8 THE INDIAN CONSTITUENT ASSEMBLY
of these manoeuvres and slogans promoting a Hindu Jammu separated
from Kashmir. Some of his language reected the same concerns: his
highlighting the religious make-up of the state and the implicit concern
that the interests of its substantial Hindu minority mentioning speci-
cally the Dogras be protected, his advocacy for recognising the impor-
tance of Jammu, and the assertion that Sheikh Abdullah did not speak for
the people who lived in that portion of the state.
Contrary to received wisdom, Nehru was not past dofng his cap to reli-
gion when it suited. For the secularists in the Congress Nehru among
them possession of Kashmir was vital to fullling Indias national
self-denition along lines no less tied to religious identity. As late as in
1953, Nehru proclaimed: Kashmir is symbolic as it illustrates that we
are a secular State, that Kashmir, with a large majority of Muslims, has
nevertheless, of its own free will, wished to be associated with
India.
27
Paradoxically, then, emphasizing the Muslim-ness of Kashmir
became instrumental to burnishing Indias secularity.
28
Accordingly, Nehru was concerned with the effect the agitations in
Jammu involving the Praja Parishad and the RSS and later joined by
the BJS (founded in 1951) were having on Kashmirs Muslim majority,
poised delicately as they were in choosing between India and Pakistan in
any future plebiscite. Addressing a rally in Calcutta on 1 January 1952,
Nehru asked his audience to
imagine what would have happened in Kashmir if the Jan Sangh or any other com-
munal party had been at the helm of affairs. The people of Kashmir say that they are
fed up with this communalism. Why should they live in a country where the Jan
Sangh and the Rashtriya Swayamsewak Sangh are constantly beleaguering
them? They will go elsewhere and they will not stay with us.
29
The unnamed object of Nehrus protective concern was the gure of the
secular but also Muslim Kashmiri.
Secularism in the constituent assembly
Interestingly, then, the religious lens through which the people of J&K
came to be understood was the product not just of the politics of avow-
edly religious nationalists but also of self-professed secularists such as
K.T. Shah and, even more, Jawaharlal Nehru. K.T. Shah is associated
with two attempts (both failed) to have the word secularintroduced
into the constitutions preamble. In the session of 15 November 1948,
THE INDIAN CONSTITUENT ASSEMBLY 9
since it was ruled that the preamble would not be discussed at that time,
Shah sought to have the state described as a secular, federal, socialist
union via an amendment to an article then under consideration. He
spoke about how these terms would reect the hopes and aspirations
of large numbers of people; according to him, emphasizing the secularity
of the statewas particularly necessary given the recent excessescom-
mitted in the name of religion. Ambedkar turned down Shahs pro-
posed amendment. As he saw it, the constitutions purpose was merely
to provide a mechanism for regulating the work of the various
organs of the Stateand not tie down the people to live in a particular
form. To protect democracy people should be allowed to decide for
themselves, according to time and circumstances, how society should
be arranged without the constitution constraining that choice for all
time to come. It should be noted that Ambedkars comments addressed
specically the term socialistbut by refusing the entire amendment
his objection applied also to the other terms Shah wished included.
30
Shah made another attempt at having the descriptor secularincluded
in the constitution on 3 December 1948 and his amendment was nega-
tivedonce more, this time without a single comment from the oor.
31
Despite these demonstrated efforts in the direction of embedding secular-
ism by word (to be followed by deed) in the constitutions document,
Shahs arguments in the context of Kashmir could not escape the reli-
gious frame within which the region was discussed. Indeed both Shahs
and Nehrus rationalizations for their preferred policies with regard to
J&K may have helped create or, at least, reinforce that religiously
informed perspective without actually acknowledging its existence.
Much of the responsibility for the blurred lines between religion and secu-
larity lies with the absence of any substantive debate on the very idea of
secularism in the constituent assembly. An understanding of the concept
was rather more assumed than carefully dened.
In the assemblys meeting on 12 August 1949, Nehru rose to register his
strong protestagainst two terms thrown about a lotin the debates. The
rst was appeasement, which critics used to characterize his govern-
ments policies with regard to Pakistan and to Muslims. What his
opponents called appeasement, Nehru defended as abiding by the prin-
ciples of justice and equity. The other term he found bandied about
too loosely was the word secularto describe the Indian state. For him
it was not the principle that was at issue but its being brought in at
every conceivable step and at every conceivable stage. Nehrus annoy-
ance was no doubt also piqued by all manner of individuals claiming to
10 THE INDIAN CONSTITUENT ASSEMBLY
speak in the name of secularism while actually defending religious inter-
ests;
32
he suggested to those gentlemen who use this word oftenthat
they check its meaning in a dictionary. For Nehru, that India should be
a secular state was axiomatic and normatively in line with every other
state except a very few misguided and backward countries in the
world. It was so self-evidently true that there was no need to constantly
refer to that word in the sense that we have done something very
mighty.
33
But there lay the problem: even at moments when gures like Nehru
identied conicting interpretations of the term, they made no move to
stop the clock and seek a debated consensus on the understanding of a
vital aspect of the new state. What were debated were the nature and
quantum of rights to be afforded different communities and even in
these discussions the tone of some of the speakers was dangerously
infused with sentiments of religious majoritarianism.
34
An overwhelming
number of members of the CA referred to secularism merely as a frame of
mind that was the antithesis of the religious hatred that had precipitated
Partition. For this, they held the Muslim League and the British respon-
sible. With the British leaving, the onus lay mostly on Indian Muslims
35
to expiate their errors and restore Indias innate secular character. Val-
labhbhai Patels words, received with rousing applause, encapsulated
many of his fellow-membersunderstanding of secularism: speaking on
minority rights, he deemed such demands responsible for the division
of the country. Those who want that kind of thing have a place in Paki-
stan, not here we are laying the foundations of One Nation,he
warned. Patel thundered to the Muslims: You must change your attitude,
adapt yourself to the changed conditions.
36
Secular India was essentially
not-Pakistan.
K.T. Shah had perhaps come closest to provoking a debate when he had
asked in November 1948 why, having been told time and again from
every platform that [India] is a secular State the term could not be
added or inserted in the constitution itself. According to him, the
purpose of such insertion and perhaps also the debate he might have
expected to precede it was to guard against any possibility of misun-
derstanding or misapprehension.
37
When he spoke of the ideas of a
secular, federal and socialist India expressing the hopes and aspirations
of people, he was signalling that these were not reected in the reality
then current. One can only speculate that had such a substantive debate
taken place, perhaps the inconsistencies in their own stances between
their secularism and their religious understanding of the Jammu and
THE INDIAN CONSTITUENT ASSEMBLY 11
Kashmir issue would have become usefully clear to Shah and Nehru
themselves. As it was, Indias secularity was un-interrogated even as
J&K was made to join to the union.
Article 370
Compared with the lively disputations that marked proceedings about
J&K on 27 May 1949, and especially compared with the political noise
generated by Hindu right-wingers around it ever since its passage,
article 306A (370 in the nal version) was added to the draft constitution
rather tamely on 17 October 1949. As mentioned earlier, that article
granted J&K a special status that, among other considerations, limited
the union governments legislative jurisdiction to the subjects mentioned
in the instrument of accession Maharaja Hari Singh signed on 26 October
1947. These were foreign affairs, defence, currency and communications.
Among the few demurrals to Ayyangars motion introducing article 306A
came from Hasrat Mohani (UP), who could not see why J&K was being
treated more liberally than other princely states. Ayyangar argued that
the discrimination was due to the special conditions of Kashmir
which meant it was not yet ripe for this [same] kind of integration.
Among the unique circumstances Ayyangar cited were the war with Paki-
stan, the unstable cease-re, the continued presence of rebels and
enemiesin the states territory and the entanglementof the govern-
ment of India in the United Nations.
38
No other member rose to speak
and article 306A was passed unopposed. There are two constituencies
whose silence sounds particularly loud in retrospect: not a single one
of the four representatives from J&K stood up to either praise or bury
the article.
39
Neither did Dr. Shyama Prasad Mookerjee, then a minister
in Nehrus government, speak a word of condemnation: despite the fact
that less than two years later he led the BJS (which he founded in
1951) into supporting the Praja Parishads demand for the abrogation
of article 370.
Over a month after it was ensconced in the constitution, the special status
of J&K did draw some belated comments. Sardar Bhopinder Singh Man,
a Sikh representative from East Punjab, inveighing against the over-con-
centration of powerat the centre reckoned that Kashmir had escaped
with a very enviable position in the Union.
40
More in line with the
Hindu majoritarian integrationist perspective were the views expressed
by Dr. Raghu Vira, a Sanskrit scholar and representative from CP and
Berar. For him the failure to integrate J&K fully into the Indian union
12 THE INDIAN CONSTITUENT ASSEMBLY
represented the assembly members’“indifference to [their] duty to the
nation. His references are still the stock-in-trade of Hindu supremacists.
Following a lament about the shrinking of Indias territory from its his-
torical and natural boundariesthat had extended to the river Oxus
(receded to the river Ravi since Partition), he regretted the capitulation
that article 370 represented. He wrung his hands over the betrayal of
the people in Jammu and Ladakh who longed to accede to India uncon-
ditionally. He invoked the great cost in money and the blood of Indian
soldiers spilled in vain since India had not yet succeeded in making
Kashmir [her] own. Neither could the Indian parliament make laws
for J&K nor could the Indian ag y in Kashmir without their ag
unfurled alongside.
41
It seems extraordinary that Raghu Vira, like Moo-
kerjee, did not vocalize his objections on 17 October 1949. But fortu-
nately for him, the Praja Parishad in Jammu had already begun its
agitation in early 1949 for the states full integration with India. And
by 1951, Shyama Prasad Mookerjee would gift the movement the
slogan of one constitution, one ag and one sovereign head(ek
vidhan, ek nishan, ek pradhan).
Epilogue
While the text of article 370 is only two pages long, there are two exten-
sive appendices running to 26 pages that qualify its provisions.
42
These reveal the long history of political interventions by the centre
working with puppet politicians in J&K that have changed the articles
character. As countless other works have shown, the autonomy cove-
nanted in it was unremittingly abraded beginning in 1953.
43
Today, its
main role is to provoke, on the one hand, the anger of mostly Kashmiri
Muslims who see betrayal in its nullity and, on the other, the ire of
Hindu nationalists who see in it the appeasementof Kashmiri
Muslims, read as fundamentalists and separatist traitors.
General elections held in May 2014 brought the Hindu nationalist Bhar-
atiya Janata Party (BJP) to national power with a commanding majority.
The year ended with another record-making electoral victory for the
party, this time in the Jammu region. Though its declared goal had
been to obtain a majority in the entire state, the BJP won no seats in
either the valley or in Ladakh. Nevertheless, this was the rst time the
party had made a signicant enough inroad in the state to form a coalition
government with the Kashmir-based Peoples Democratic Party. Since
2014, then, Kashmir has been feeling, more directly than ever before,
THE INDIAN CONSTITUENT ASSEMBLY 13
the heat of the rhetoric and agendas of the BJP and its afliates, the RSS
and the Vishwa Hindu Parishad.
In terms that K.T. Shah might have recognized, Kashmir, which the BJP
does not control, is isolated through various discursive strategies to make
it serve as both a dangerous exception but also a containable menace. A
speciality of the Hindu Right though adopted by other Indian political
parties as well has been a distilling of religious essences along territorial
lines within the state. In this view Jammu is Hindu, Ladakh Buddhist and
Kashmir Muslim, and the outcome of the 2014 elections is adduced to
conrm this understanding. In the BJPs eyes its majority win there
made Hindu Jammu a reality and, by not winning any seats in the
valley, reinforced the erroneous paradigm that Kashmir is Muslim. But
it won no seats in Ladakh either. Yet a supposedly Buddhist Ladakh
the BJPs ideology claims Buddhists as their ownon the erroneous
premise that their religion is an offshoot of Hinduism is automatically
assimilable in the Hindu nation.
Among the causes long espoused by the Hindu Right, as discussed, has
been the revocation of J&Ks special status exemplied by article 370.
Despite its conspicuous whittling down, a bone of contention that has
recently been highlighted is the reservation of certain entitlements to per-
manent residents: the rights to acquire immovable property, to vote in
elections and eligibility for certain government positions in the state.
Article 35A of the Indian constitution added through a Presidential
Order in 1954 and issued under article 370 not only permits the states
legislature to dene who permanent residents are but also guarantees
these special provisions to them.
Ironically, these were (except voting rights) benecences Maharaja Hari
Singh had granted in the early 20
th
century following agitations spear-
headed by his more privileged Hindu subjects, especially the Kashmiri
Pandits; their concern had been to stem the accumulation of wealth
(including land) and the cornering of positions in the administrations
higher rungs by growing numbers of outsiders. Today this dispensation
is reviled as the brainchild of Kashmiri Muslim separatism. So the abro-
gation of these privileges indeed the exorcism of even the spectral pres-
ence of article 370 is demanded as blasphemy against the cult of
national integration. Dr. Raghu Vira would have been in sympathy. In
the view of Hindu supremacists, article 35A is an obstacle to the only sat-
isfactory resolution of the Kashmir problem: inundating the state with
(Hindu) Indians armed with the right to vote and to acquire land.
14 THE INDIAN CONSTITUENT ASSEMBLY
Speaking in late 2017, Hari Om Mahajan, formerly a senior leader of the
BJPs J&K unit, described article 35A as discriminatory and unconstitu-
tional. He raised the bogey also of a Muslim invasion of Jammu through
the settling of Rohingyas and Bangladeshi Muslims. He warned that the
ongoing demographic attrition in Jammu needs to be reversed at every
cost, especially because, as he asserted, Jammu is the backbone of
the nation in the state.
44
Given the centrality of Jammu for India that
he asserts, it should come as no surprise that Mahajan has also expressed
unstinting admiration for K.T. Shahs efforts in the constituent assembly
on behalf of the region.
45
The ghosts of the assembly have not yet been laid to rest. Nor can they be
since the broader context in which Indias constitution-makers worked to
forge a republic and into which they sought to absorb Kashmir has not
changed. As this essay has argued, that context was suffused with reli-
giously informed perspectives. If the history of Kashmir in the constituent
assembly teaches us anything it is that, contrary to a widely held percep-
tion today especially in Hindu right-wing circles, rather than a Kashmiri
communalism (Islamic fundamentalism) infecting Indian secularism, the
malady may just as plausibly have spread in the other direction.
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 acces-
sion was complete and all that remained was a conrmation by the people. The
assumption was that a positive afrmation was forthcoming. Constituent Assembly
Debates [henceforth CAD], vol. VIII, 27 May 1949 (no page numbers in the digi-
tized records of the debates). http://parliamentondia.nic.in/ls/debates/debates.htm.
2. Although the word secularas 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 nal version that came into force on 26 January 1950. Article
280 became article 352 in the nal 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
THE INDIAN CONSTITUENT ASSEMBLY 15
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 states 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 rst 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 states
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 Abdullahs 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/2325/stories/20061229001008100.htm, accessed 3
Jan 2018.
24. Ian Copland, State, Community and Neighbourhood in Princely North India,
c. 19001950. 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.
16 THE INDIAN CONSTITUENT ASSEMBLY
30. CAD, vol. VII, 15 Nov 1948.
31. CAD, vol. VII, 3 Dec 1948.
32. The immediate though not the only provocation for Nehrus 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 secularismthat demonstrated partiality towards
even Muslims like the Meos who had questioned the integrity of India before Par-
tition. 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 Pants discussionof safeguards
for minorities warning them at the same time not to look outside the territorial connes
of India for the protection of their rights. As he put it, the surest assurance for the min-
orities would come from the goodwillof 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 partici-
pants 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. 162163.
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. 7277.
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
modied up to the 1
st
December, 2007), pp. 243244 and 357396. The appendices
reect changes made in 1954 and in 19641965. The latter represented a signicant
departure from the original article. These revised articles extended to Kashmir, inter
alia, the central governments authority to dismiss elected state governments and
appropriate the latters legislative powers.
43. See Noorani, Article 370, and Sumantra Bose, The Challenge in Kashmir: Democ-
racy, 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.
THE INDIAN CONSTITUENT ASSEMBLY 17
... On October 17, 1949, Article 370 was added to the Indian Constitution, conferring a special status on what became circumscribed as the State of Jammu and Kashmir, that included neighboring Ladakh. N. Gopalswami Ayyangar, who drafted the article, argued that as a result of the restive conditions in Jammu and Kashmir, the region was not ready for full integration (Rai 2018). The war with Pakistan, circumstances of the signing of the Treaty, popular anti-Dogra (Hindu) sentiments in the valley, and a growing people's movement provided grounds of "exceptional circumstances," namely the religious composition of the state, for the justification of the special status. ...
... As argued by Rai (2018), during the drafting of the Constitution, there was no clear discussion about the definition of secularism. It was expressed in the form of "principled distance" (Bhargava 2013). ...
Article
Full-text available
Over the last seven decades, the Constitution of India has gone through many changes and its purpose questioned as much as it serves the basis for legislation in the country. This article historically traces the events of 2019 concerning itself with the abrogation of Article 370, (that promised internal autonomy to Kashmir), and the amendment to the Citizenship Act that discriminates against Muslims by the Indian Parliament. Concerning itself with the Kashmir question, through the article I attempt to examine political events of 2019 both historically and ethnographically, bringing to fore the relationship of Indians with its constitution. The article explores this through an ambivalence around secularism and dichotomies of independence/occupation of Kashmir through an ethnographic engagement with Kashmiris at a protest site in Delhi. The article notes how the events of 2019 concerning Kashmir, further entrench India’s fraught engagement with the region since India’s independence from colonial rule in 1947.
... In the following years, even though the UN arbitrated various plebiscite proposals, they all failed due to the competing claims of the two contesting countries. The succeeding monarch of Kashmir proclaimed the formation of a constituent assembly (see Rai 2018). This mechanism paved the way for elections and negotiating Article 370 with the government of India. ...
Article
Full-text available
Since July 2016, Indian-administered Kashmir has again raged with mass protests favouring self-determination and freedom from India. In the protests more than ninety-eight people have been killed, over eleven thousand wounded, and more than eight hundred Kashmiris injured in the eyes or blinded by Indian troops using force against protestors and non-protestors alike. Since 1947, when the region was temporarily bifurcated between India and Pakistan, Indian-administered Kashmir has clamoured for a plebiscite, which the United Nations mandated so that the Kashmiri people could choose their own fate. The original options in the plebiscite were mergers with either of the two countries, but Kashmiris have increasingly demanded that a third option for an independent Kashmiri nation-state be added. While the majority of the Kashmiris seek independence, a small faction favours merger with Pakistan. Despite continuing demands for an independent nationhood – one that preceded the creation of India and Pakistan – Kashmir continues to be perceived simplistically as a bilateral dispute between the two nation-states. Using the analytic of “right to maim,” this essay illustrates how the Indian state “blinds” Kashmiri subjects by perfecting a technology of punishment that produces bodies incapable of physical resistance and as a representational threat to the rest of society. By making maiming as a punishment central, this essay will examine India's control of the Kashmir valley as a de facto military occupation.
Article
This paper investigates the framework of Islamist politics of Jama'at e Islami in Indian-administered Kashmir. Even though Jama'at e Islami creates the notion of “other” in the Indian state and challenges it but Kashmir's provincial relationship with India also forces it to work within the limits set up by the same state. This paper, thus, conceptualizes the relationship between Indian state and Islamists in a Muslim Majority region that demands the right to self-determination. In doing so, the paper interrogates Jama'at e Islami's rhetorical opposition to the political doctrine of Indian secularism and raises queries about minority rights and their place in the Islamist project.
Book
Ian Copland’s aim in this book is to explain why, during the colonial period, the erstwhile Indian ‘princely’ states experienced per capita significantly less Muslim-Sikh and Muslim-Hindu communal violence than the provinces of British India, and how the enviable situation of the states in this respect became eroded over time. His answers to these questions shed new light on the growth of popular organisations in princely India, on relations between the Hindu and Sikh princes and the communal parties in British India, and on governance as a factor in communal riot production and prevention.
Book
This collection of documents on Article 370 of the Constitution of India contains 'temporary provisions' with respect to the State of Jammu and Kashmir. This book presents documents on the five-month long negotiations which preceded its enactment on 17 October 1949. It explains the significance of the article, describes how it was eroded, and traces the Constitutional evolution of the State and its relationship with the Union of India thereafter. It covers the period from 1946 to 2010. From Jammu and Kashmir's accession to India in 1947 to the various negotiations thereafter, including Sheikh Abdullah's arrest to the framing of the Constitution of Jammu and Kashmir, and the replacement of Sadar-i-Riyasat, this book examines in detail the little-known constitutional history of the state.
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
  • However
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.
The article numbers in the draft constitution differed from those in the final version that came into force on 26
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.
Sovereign Power and Bare Life, translated by D. Heller-Roazen
  • See Giorgio Agamben
  • Homo Sacer
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.
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
  • N Gopalaswami
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.
  • Balraj Puri
  • Kashmir Jammu
Balraj Puri, Jammu and Kashmir: Triumph and Tragedy of Indian Federalisation. New Delhi: Sterling, 1981, p. 93.
Kashmir: Blunders of the Past
  • Noorani
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.
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
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.
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
  • Ministry Government Of India
  • Justice Law
Government of India, Ministry of Law and Justice, The Constitution of India (As modified up to the 1 st 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.