Law Minister Mr Rijiju, Mr Nehru also denied J&K people right to send representatives to constituent assembly and omitted Jammu from state nomenclature

Prof Hari Om

Union Law Minister Kiren Rijiju’s article in News18, ’75th Anniversary of Five Nehruvian Blunders on Kashmir’ (Oct 27, 2022) and ‘Nehru’s 5 Blunders on Kashmir – The Real Story’ (Nov 14, 2022) are not based on heresy; these are based on solid archival material. Only un-historians and blissfully ignorant or biased politicians could disagree with the Law Minister. However, what the Law Minister has said in these two articles constitutes only one important part of the ‘real Story’. The other part of the story is also real and it, I think, warrants attention of the Law Minister. It is widely believed that Jammu and Kashmir came in for discussion in the Indian Constituent Assembly, only on 17 October 1949. That was when Article 306-A (Article 370) was adopted and the state was permitted to have a special relationship with the Union Government. This assessment is partially correct. A scrutiny of the pproceedings of the Indian Constituent Assembly reveals that the issues concerning Jammu and Kashmir were discussed twice – first on 27 May 1949, and again on 17 October 1949. It also shows that the focus on 27 May was far sharper and more revealing than it was on 17 October. Article 370 was designed to give Jammu and Kashmir the right to have its own constitution and a flag, other than the National flag. The Article was adopted in no time, despite the fact that a Muslim member of the Constituent Assembly, Maulana Hasrat Mohani, had warned that the grant of special status to Kashmir (on the score of religion) would enable it to ‘assume independence afterwards’ ( Constituent Assembly Debates, Book No 5, Vol. Nos. X-XII, 6 Oct 1949 to 24 Jan 1950, reprinted by Lok Sabha Secretariat, New Delhi, Second Edition, 1989, p. 428).
It would be interesting to reflect on 27 May discussion, which is less known but is equally relevant – something that kept the Constituent Assembly engrossed in squabbles and tortuous discussions for hours together.
In October 1947, when Jammu and Kashmir acceded to the Indian Dominion, it was hoped that the Congress Government at the Centre would recognise the natural right of the people of the state to return representatives of their choice to the Indian Constituent Assembly. This hope stemmed from the Congress Working Committee resolution (17-18 June 1934) as well as the April 1936 resolution, adopted by the Congress at its Lucknow session. The 1934 resolution had told the British Government in clear terms that ‘the Constitution must be framed by a Constituent Assembly elected on an adult franchise or a franchise which approximated to it as nearly as possible’. As for the one adopted at Lucknow, it had rejected the Indian Councils Act of 1935 as ‘a charter of bondage’ and declared that no Constitution ‘imposed by an outside authority and no Constitution which curtails the sovereignty of the people can be accepted’. The belief of the people of Jammu and Kashmir was that they would have a real say in the matter. This belief was further strengthened in 1946 when the Congress urged the Cabinet Mission to permit all male and female adults to elect the Indian Constituent Assembly and to accept the Muslim League’s sectarian demand, which sought election on the basis of a separate register (suggestion not accepted).
Paradoxically, the people of Jammu and Kashmir could not send representatives of their choice to the Constituent Assembly. The Congress dominated Constituent Assembly did not involve the people of the state in the process of Indian Constitution-making nor did it follow those election rules, which the 1946 Cabinet Mission Plan had laid down for the princely states. On the contrary, it vouched for a formula which was nothing but a negation of what the Congress had supported. It only pleased one person- Sheikh Abdullah and his religio-political formation, the National Conference (NC).
How else would one interpret the adoption of the motion on 27 May 1949, moved by the Minister of Kashmir Affairs, Gopalaswami Ayyangar, and the speech he made while introducing it? The motion read, “Notwithstanding anything contained in paragraph 4 of the Constituent Assembly Rules all the seats in the Assembly allotted to the State of Kashmir may be filled by nomination and the representatives of the State to be chosen to fill such seats may be nominated by the ruler of Kashmir (read Maharaja Hari Singh) on the advice of his Prime Minister (read Sheikh Abdullah).” Ayyangar’s speech said further added, “We have to choose a method by which we could get representatives into this Assembly.
We are today in a position to bring to this House four persons who could be said to be fairly representative of the population of Kashmir. The point that I wish to urge is that, while two of the representatives would in any case under the present rules be persons who could be nominated by a ruler, we are suggesting that all the four persons should be nominated by the ruler on the advice of his Prime Minister.”
The Prime Minister happens to represent the largest political party in the State. Apart from that, we have got to remember that the Prime Minister and his government (NC Government) are not based upon the Jammu and Kashmir Praja Sabha (Legislative Assembly set up in 1934) but based rather on the fact that they represent the largest political party. Therefore, it is only appropriate that the head of this party, who is also the Prime Minister, should have the privilege of advising the ruler as to who would be proper representatives of Kashmir in the Constituent Assembly. This motion generated a lot of heat in the Constituent Assembly, which debated this issue for hours as objections after objections were raised against the suggested formula. Members of the Assembly such as Pandit Lakshmi Kanta Maitra (West Bengal), H V Kamath (CP and Berar) and K T Shah (Bihar) vehemently opposed the formal motion on five counts. One, it provided for a mechanism which was not in conformity with ‘such rules as contained in Rule 4 of the Constituent Assembly Rules.’ According to Rule 4, the seats allotted to the princely states had to be filled by not less than half by the elected members of the legislature of the states concerned and the remainder to be nominated by the ruler himself.
Two, it made an unjust and invidious distinction between Jammu and Kashmir and other princely states. Three, it was designed to empower one individual, Sheikh Abdullah, to take a decision on who should or should not represent the state in the Constituent Assembly, as also the future politico-constitutional ties between the state and New Delhi. Four, the motion was, undoubtedly, designed to render the people and their elected Assembly ineffective.
Five, it had the potential of harming Indian interests in Kashmir and giving cause to the forces inimical to the country, to challenge its stand that the people of the state were solidly behind it. K T Shah was most severe in his criticism of the motion, and he urged the Constituent Assembly to repudiate the motion outright.
Also, he fervently solicited the support of the elected Praja Sabha. Justifying his suggestion, Shah said, “Had the situation been in the state as normal and peaceful as in other cases, I would have certainly followed the same precedent, and required that at least part of the representatives should be representatives of the people chosen by their representatives in a proper form. But as the situation is there today, with all the complications that have arisen, all the representatives of the people must be elected. If this party, the National Conference, claims to represent the entire or at least a large majority of the people of Kashmir, then there is no reason to fear that they cannot send representatives according to their wishes. They need not, therefore, shirk the suggestion I am making.”
This criticism shows that Shah had two primary arguments. One, that Sheikh Abdullah and his political formation did not represent the general will. Two, that the suggestion of Ayyangar, if accepted, might harm the country’s vital interests. He elaborated on the first point in these words, ‘I am constrained to point out that the developments in the history of Jammu and Kashmir in three and half years should not be overlooked. You must not overlook the agitation that was started in February 1946, whereby a responsible party or the leader of that responsible party had started a campaign of ‘Quit Kashmir’ and in consequence thereof events developed and created difficulties that have since ensued. I do not like the House to be a party to anything that might look as if it was a surrender to one man’s wishes, that nothing can be done until the Maharaja is removed or complete power is handed over to him’. (The Sheikh had told Prime Minister Nehru that he would not be in a position to run the administration efficiently until Maharaja Hari Singh was removed from his position’. ‘Whether or not he holds the complete confidence of all the people has yet to be proved. I am aware he may have a large following; but at the same time, if you want proof beyond the possibility of doubt, there is no reason why you should not send an invitation for an election even under the limited franchise that is prevailing. If you have adult franchise, that would be better. But even under the limited franchise of 1946, if you hold an election, you will get the true representatives of the people.’
As for the other issue, Shah opined: ‘You must also not forget that the events that have happened have invested the other countries (the United States and the United Kingdom) and the sister Dominion (Pakistan) and those outside with interest in the matter.
That being so they will not take any decision unilaterally made by us without demur. If you want to have peace restored, if you want to live in peace with your neighbour, you should not give needless occasion for them to say that here you are purchasing a design and committing an act and taking steps whereby your own declarations, and what is more, whatever interests the others (the people of Jammu and Ladakh) may have are being jeopardised. If that is going to be a slur on the good name of this country, and its claim to stand always for the people or for those who are oppressed, then I think that it is not too much to demand that the representatives, in this case, should be wholly elected, and should be the true reflex of the people’. It is important to note that all of Professor Shah’s pleas and his unambiguous warning, regarding the grave evils that would follow on the introduction of the formula as suggested by the formal motion, were turned down by Ayyangar and Prime Minister Nehru. Both of them defended the motion which, in a sense, was designed to undermine the importance of the people, the Praja Sabha, and the ruler of the state. This was the case, despite the fact that they candidly acknowledged that the process they had suggested for the state was ‘not ideal’.
To quote what Prime Minister Nehru said in defence of the motion: ‘It amazed me to hear Shah propose that the so-called Praja Sabha of Kashmir should send representatives to this House. He should know that there is nothing more bogus than the Praja Sabha. He ought to know that the whole circumstances under which the last elections were held in 1946-1947 were fantastic and farcical. He ought to know that it was boycotted by all decent people. And the type of people who got in the Praja Sabha was the type who had opposed the freedom movement throughout, who had done every injury possible to the idea of freedom of Kashmir till then….I admit that it is not desirable for any member of this House to come by nomination or be selected by some narrow process. Though the process suggested for Kashmir is not ideal, yet I do think that it is the better process. It is the process where you get a popular government with a representative of the popular party at the head of it, recommending to the ruler that certain names should go. Even from the view of democracy, that is not an incorrect process. It is hundred percent correct’.
Among several objections raised against this May 27 motion, the one that also stood out was the omission of ‘Jammu’ from the nomenclature of the state. Prominent among those who opposed the motion were Pandit Lakshmi Kanta Maitra and Prof K T Shah, who even possessed first-hand knowledge of the state and its people, as well as the kind of political upheavals it had witnessed since 1931. Shah remained associated with the affairs of this princely state for 15 long years and was its Planning Advisor for a few years before October 1947. He also knew what shape things would take in Jammu and Kashmir in the days to come, as he held a 15-day interaction with National Conference (NC) President Sheikh Mohammed Abdullah, who had come all the way from Srinagar to Mumbai to discuss with him his New Kashmir Plan. The NC adopted the ‘New Kashmir’ programme in September 1944.
They demanded that ‘the Treaty of Amritsar dated March 16, 1846, signed between Maharaja Gulab Singh and the then British Government of India, which was in the nature of sale deed and was thus an insult to the people the State (Kashmir) must go lock, stock and barrel’ ( Report of the State Autonomy Committee, Jammu, April 1999, P. 11).
While Pandit Maitra repeatedly asked,…if the word ‘Kashmir’ includes both Jammu and Kashmir’… Prof Shah moved an amendment to the motion and made an appeal to the Constituent Assembly to ensure that the words ‘Jammu and’ figure before the word ‘Kashmir wherever it occurs’.
Moving the amendment, Prof Shah said, ‘…There is some significance in this matter, which makes it more than ever necessary that you (Ayyangar) should not omit the other part (Jammu), and, if one may say so, the first part of the title of that ancient state. By calling it the State of Kashmir only you are perpetrating an error…May I ask…if we have made a mistake in the first instance, if we have been carried away by the importance of one sect (Sunni Muslims) of the state, by the importance of personages (the Sheikh and his colleagues) connected with that part of the state, is that any reason why we should forget the other side and no less important part of the state; and in this formal document continue to perpetuate that mistake and speak only of Kashmir, when we really mean Jammu and Kashmir? It is a fact not denied by the mover that is the correct name of the state…’
Prof Shah also told the Constituent Assembly that the relations between Kashmir and Jammu were not very cordial. To make his point, he said, ‘Those at any rate who remember the campaign of the present Prime Minister (Sheikh Abdullah) of the state in connection with (the 1946) Quit Kashmir movement will realize that in the sequence of events that have happened, it is liable, if you describe it in this manner, to be gravely misunderstood wherever such nomenclature is allowed to be used; and our public records will be disfigured to that extent…In regard to the State of Jammu and Kashmir until about the communal rising in 1931, it was for all practical administrative purposes actually divided into two provinces more or less distinct, though under the same ruler…’
He did not stop here, “‘The matter of nomenclature is not merely a matter of verbal emendation that it has behind it a significance in the sequence of events, not confined only to this House or this country.
It has repercussions outside this country…Therefore, we must be careful in every word that we use, so that our expression, our nomenclature, our whole wording is in conformity with the situation and the correct facts…” In reply to Pandit Maitra, Ayyangar said: ‘Kashmir means Jammu and Kashmir.’ He also justified his motion saying, ‘…in the Draft Constitution, the Schedule mentions the State of Kashmir’ and ‘in the list that is attached to the Constituent Assembly Rules, it is already described as Kashmir’. He urged the members not to make this an issue and ‘let this description of the State of Kashmir stand, because if you change it, we will have to change other things which are already in our Statutes and Rules…’ In other words, Ayyangar expressed his unwillingness to insert the words ‘Jammu and’ before Kashmir for reasons better known to him and which failed to carry conviction with Pandit Maitra and Prof Shah – evident from the questions they raised in response to Ayyangar’s lengthy statement on the nomenclature of the state.
Convinced that Ayyangar would not be in a position to convince Pandit Maitra and Prof Shah, Prime Minister Jawaharlal Nehru himself took the stage. He defended Ayyangar and said that his stand was ‘correct.’ Nehru said, ‘I have been connected with Kashmir in many ways, and, in a sense, I belong to Kashmir more particularly than to any part of India. I have been connected with the fight of freedom in Kashmir…And so, if I venture to say anything in this House, I do so with greater authority than Prof Shah can presume to have on the subject…’
Then, PM Nehru made a lengthy statement to counter the arguments of Prof Shah and in praise of Sheikh Abdullah, his NC, and the Quit Kashmir Movement. At the same time, he suggested ‘a small change in the wording of the motion’ with a view to ‘removing’ what he called ‘a slight confusion in the people’s mind.’ What he actually suggested was that the ‘State be described as Kashmir State and then, putting within brackets, the words otherwise known as the State of Kashmir and Jammu’. It needs to be recalled that the state at no point of time during 1846-1949 was styled as the ‘State of Kashmir and Jammu.’
It was always known as the State of Jammu and Kashmir, with Jammu as its permanent capital. It should also be underscored that the practice of moving the State Secretariat from Jammu to Kashmir and back was started during the time of Maharaja Ranbir Singh (1857-1885).
The deadlock continued till Ayyangar moved an amendment to his motion and suggested that the name of the state be read as ‘the State of Kashmir (otherwise known as the State of Jammu and Kashmir).’ The Constituent Assembly adopted the amended motion. Thus, Jammu, which had ruled over Kashmir for 101 years, found space in the nomenclature of the state, though within brackets. The introduction of the word ‘Jammu’ in the official name happened primarily because of the efforts of the unyielding Prof Shah, with the support of Pandit Maitra. Had they, like other members of the Constituent Assembly, remained mum or toed the official line, Jammu would have disappeared from the name of the State (Constituent Assembly Debates, Book No 3, Vol VIII, May 16, 1949 to June 16, 1949, Reprinted by Lok Sabha Secretariat, New Delhi, Second Reprint, 1989, pp. 357-373).
All this should further set the record straight and establish that Nehru committed one blunder after another to muddy Indian waters in J&K.