Article 370 with Role of Dr. B.R. Ambedkar in Shaping Peaceful Jammu and Kashmir State

When this sub continent was burning due to Indian partition, Mahatma Gandhi visualized a ray of light meaning hope coming from Kashmir in maintaining communal harmony. But to see an imaginary ray of light is different to the statute book light. If a right law is enacted it makes fraternity light to shine among its citizen, a permanent feature and also makes provisions so that unscrupulous elements do not weaken it with the passage of time. The second part to make the fraternity among Indian citizens strong and permanent was assigned to Bharat Ratna Baba Sahib Bhimrao Ramji Ambedkar. He proved worthy of the trust imposed in him by  framing a unique statute book ,in the world democratic history.

Earlier to 1947 the British exercised control over united Indian territory in two ways.  Nearly 60% of Indian territory comprising of various provinces was administered by the representative appointed by the British Parliament. This representative was called Viceroy of India and area under his direct control referred as British India. United India had a population of about 40 crores and area of approximately 42 Lakh Sq. Kms The remaining 40% territory having 100 million populations was under the rule of over 562 princely states ranging in size. States were big and small in size as Hyderabad and Jammu being as big as the Britain mainland, but some were as small as a dot in the world map. Nearly 327 were very small, with some having area as small as 20Km² with annual income as small as Rupees 22,000 to feed and maintain the state population of 3000 or so. These states wee not directly ruled by the British Crown but had liberty to run internal government affairs of health ,law and order, civil liberties, education and developments  as per their wishes and whims. Their relations with the British India were through individual treaties and they recognized the British paramountcy. They were the British protected states against neighbors’ and usurpers for which the British had stationed troops in the state capitals under direct control of a British officer called Resident. With the withdrawal of paramountcy, the princely States would become independent’ and the communal basis of division of British India would not affect the States at all. The communal divide into India and Pakistan applied only to the areas  under the British India

After partition of united India into two separate sovereign countries of Bharat i . e India and Pakistan. India was left with about 35 cores population and an area of 32.88 Lakh Sq. Kms. Besides this free India had numerous religious divides, castes, sub castes all governed by different faiths, customs, living conditions with wide gaps in education, economic, social statues. Divided India had majority poor population, natural divisions, still to be conquered against natural calamities, diseases and many more problems. The migration of population from Pakistan to India and providing safe passage to those migrating from India to Pakistan. With all these man made and natural problems  it was difficult to devise a system of governance for India to keep it united against all odds it inherited with the  division with scares of  the British rule of over  three centuries.  Various Rajas, Maharajas had their own contradictions and their future safeguard worries.  All these problems were requiring short term and also  long term solutions duly enforceable by law of the land. The free Indian Law book was to be  written suggesting possible remedies for all the pressing problems before the nation. Although India claimed to have a battery of  eminent, religious scholars, jurists, politicians, educationists, lawyers, intellectuals in their own way .But the job required the services of a  person who personified  all qualities  in a single human body frame. The Search was  made for such a person in British personalities too, but every body of them too pointed towards a lotus flower a product of the Indian muddy waters.The  person so indicated was none other than  poor man’s lawyer, Dr. Bhimrao Ambedkar, who had  got decorated  himself with world’s highest academic Degrees  of M.A; PhD; M.Sc; D.Sc; D.Litt ; LL.D; Barrister-at Law. He had  struggled to study at Lincoln’s Inn, knew seven languages and had opportunities to study under the guidance of the world renowned professors in the corridors of the world’s rare universities in USA,UK ,libraries and museums’. He had constructed his house Rajgriha to house his personal library at Dadar Bombay for storing thousands of rare books, periodicals, manuscripts. He was editor to many best selling books. He also was editor to some journals. He had gained enough knowledge in world religious political and economic, Constitutional Law, History, Labour Laws and all that was needed to be the counted as world class constructional expertise. He was an authority on subjects of Economics,Law,Sociology,Anthropology and Social engineering. Dr Ambedkar knowledge was extensive, varied, profound and encyclopedic. He was  a writer for thinkers, with thought provoking qualities. Dhanjay Keer a biographer of Dr. Ambedkar had described that a visit to Dr Ambedkar was a visit to  living museum.

 His political acumen ship had been displayed in world conferences including three Round Table Conferences at London held  in between  Nov, 1930 to Dec.1932. Dr Ambedkar’s   suitability for writing free India’s Constitution was supported even by Mahatma Gandhi, the uncrowned king of Indian freedom movement. Mahatma Gandhi although never saw an eye to eye with Dr. Ambedkar for  Constitutional solution to  social, religious, economical, educational and political  freedom to untouchables from centuries old  religious hate and to bring them in main stream of free India, free of their exploitation. But still Mahatma analyzed that it was none else than messiah of Dalits who suited the best choice for framing Constitution of free India with a possible solution to all its problems, priorities, ills with him national mind set. Since framing of the Constitution for free India was a gigantic assignment not only due to the size of the country but its inherited problems too many and only a man of eminence could cope with this job.

Keeping all view the  personnel qualities and qualifications  of head and heart, his tested commitments towards his nation and its people Dr B.R. Ambedkar was called to shield the responsibilities of being the first Law Minister of  free India and subsequently as the Chairman of the Constitution Drafting Committee. This was despite the facts that through out his life he had been the critic of Gandhi and congress. He was not a congress party man and had alredy expressed his strong commitment to leave Hindu religion. He was also branded as stooge of British government by his political and religious opponents. But the call of the hour was so strong  to forget all this and once again an untouchable was found suitable for writing the Constitution Of India as  Maharish  Valmik and Ved Viasa  both untouchables were called to write Ramayana and Mahabhabharata Epics .The fate had favored another untouchable Shri  J.N. Mandal to be the first Law Minister of Pakistan after its independence and he had opportunity to  be the chairman of Constitution Drafting Committee of Pakistan. Shri J.N.Mandal was instrument in getting elected Dr Ambedkar to the Provincial Assembly of Bengal making his way to be the Chairman of the Constitution framing Committee for free India.  The Constitution drafting body had 292 members with seven member Constitution Drafting committee was headed by Dr Rajindra  Prashad , the first President of India as its Chairman.

 The  Draft  for the Constitution of free India was written having 315 articles and 8 schedules consuming as less as 114 days. It was revised thrice to give it its final shape having 395Articles, 3 Schedules.It took the framers to frame and present the final draft of Constitution of India 2 years 11 months and 17 days. In the final draft nearly 7635 amendments were moved  out of which 2473 were replied. The total expenditure on framing the Constitution was worked out  officially to be Rupees 63,96,729.

In the draft constitution Article 306 provided for some temporary provisions to frame laws in respect of certain matters falling in the state list for the first 5 years as it they were in the concurrent list. In the article 306 sub  clauses (A) and (B) were made during draft Constitution discussions .These 306(A)and 306(B) were again re-drafted as 370 and 371 in the final Draft of the Constitution.

During the drafting of the Constitution between 30^th August 1947 to 26^th Nov, 1949 many other things were reeling under compelling circumstances. Although India gained independence on 15^th August, 1947 and the rulers of princely states were given three options to decide their future. They were given the choice either to merge with India or Pakistan or to remain independent.  Some rulers like Hyderabad, Junagadh (now in Gujarat) and J&K were hoodwinking to join any of the two sovereign countries created by the partition meeting fully the spirit of the partition norms. For Hyderabad police action was taken. T he J&K Maharaja Hari Singh also did not exercise his option of joining any of the two domains  and was thinking to remain independent by maintaining cordial relations through  treaties with both domains being his neigh-borers. He even had written to both the Domains to  enter a stand still agreement. Pakistan had even conveyed its agreement to Maharaja’s proposal but also started creating strangulation of supplies like food salt and petrol to J&K state. Also in plain cloths but with modern weapons rajakars ( armed invaders) aided by the Pakistan regular forces started infiltration from across the border . This coupled with other political development made the  Maharaja Hari Singh to sign the Instrument of Accession on October 26^th,1949 (72 days after his given choice to sign it or not) in respect of only three subjects - defence, foreign affairs and communications. This Instrument was accepted next day by Lord Mountbatten the Governor-General of India. The Maharaja made an Order on October 30, 1947 appointing Sheikh Abdullah the Head of the Emergency Administration, replacing it, on March 5, 1948, with an Interim Government with the Sheikh as Prime Minister. It was enjoined to convene a National Assembly "to frame a Constitution" for the State.

  Indian troops started landing in Srinagar and other locations to repel the armed invaders. A complaint was also lodged in the UNO Security Council to this effect which resulted in cease fire between India and Pakistan on 27^th July 1949.

A large number of Indian States were represented in the Indian Constituent Assembly and though it was conceived that the States would have separate Constitutions for their internal administration, but the idea of a separate Constitutions with such  provision had no place in a democratic set-up as this arrangement could create more problems than serving as solution for united India. So, the Rulers and Raj Pramukhs had issued Proclamations making the Constitution of India operative in their States well before 26^th November 1949 the  date of adoption of the final Draft  Constitution Of India.

The State of J&K was represented in the National Level Constituent Assembly by four members namely Sheikh Mohd. Abdulla, Mirza MA Beg,Maulana MS Masudi,and Moti Lal Bigra. However the joint photograph of all members of National Constitution Assembly also carries photograph of Bhagat Chhajju Ram showing him sitting in the front row..

   The Para (7) of the Instrument Of Accession which reads as “ Nothing in this instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter mydiscretion to enter into arrangements with the government of India under any such future constitution”. It was exploited by the Kashmiri leaders  by thinking in terms of autonomy of the State with separate Constitution. Some Indian leaders including Pt. Jawahar Lal Nehru were thinking favorably to wards Kashmiri leaders as they had rejected the two Nation theory of dividing British India and put their lot with India despite the fact that Kashmir had majority Muslim population. In the prevailing circumstances it was though to make certain temporary provisions in respect of J&K State in the Indian Constitution. During discussion by Sheikh Sahib  with Pt. Jawaharlal Nehru on the subject.  Pandit Ji suggested to Sheikh Mohd. Abdulla to discuss it first with Dr Ambedkar the Chief Architect of the Constitutuition making. Since Dr Ambedkar had the conviction of mind that when deciding destinies of nations ,personnel dignities of people, parties or leaders ought to count for nothing. He was against hero worship particularly in politics. He maintained it during all his life. When Sheikh Sahib   came to discuss the proposal with Dr. Ambedkar,he plainly refused to toe with the line of thinking of Sheikh Sahib and Pt. Jawaharlal Nehru in the National interests. 

Professor Balraj Madhok as reported in the Deepavali Special issue of ‘Organiser’ November

14, 2004, on the basis of his talk with Dr Ambedkar on this topic. Dr Ambedkar told Sheikh Sahib“Mr. Abdullah, you want that India should defend Kashmir, India should develop Kashmir and Kashmiri ‘s  should have equal rights as the citizens of India, but you don’t want India and any citizen of India to have any rights in Kashmir. I am the Law minister of India. I cannot betray the interest of my country.”

Upon this Pt Nehru asked Gopalaswami Ayyangar Minister with out portfolio in his Cabinet  to draft the necessary Legislation and piloted it in the National Constitution Assembly.  While piloting the bill Ayyanger is reported to have said “Till India became a Republic, the relationship of all the States with the Government of India was based on the Instrument of Accession. In the case of other Indian States, the Instruments of Accession will be a thing of the past in the new Constitution; the States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a document of accession for becoming units of the Republic. It would not be so in the case of Kashmir since that particular State is not yet ripe for this kind of integration due to special conditions prevailing in Kashmir. In the first place there has been a war going on within the limits of Jammu and Kashmir State — part of the State is still in the hands of the enemies, and in the second place, the Government of India has committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity will be given to the people of the State to decide for themselves the nature of their Constitution”.

 This legislation was numbered 306-A and was passed with out any further amendments in it. It was virtually a decision of Pt Jawaharlal Nehru with the  reported support of Moulana Azad another Cabinet Minister . Even Home Minister Patel the Iron man of India had his reservations but he did not like to oppose the Prime Minister, taking the Art.306-A as his child. According to the speech made by Dr. Shyama Prasad Mookerjee at Kanpur on 29th December 1952 Ayyangar had made a statement in the Constituent Assembly that in order to keep the door open for the day when Jammu & Kashmir State would merge with India and fully accept the Constitution of India, he had labeled Article 370 as a ‘Temporary’ provision. But discussions in support and to against Art. 370 are continuing since then.

 During the second revision of the draft Constitution ,the National Assembly for Constitution had a break of 15 days  in September 1949 when Dr Ambedkar spent a few days at Srinagar Kashmir  to have little rest.  Surely he might have met some people there to assess the impact of the new developments in the country then .  He is reported to have reached back Delhi on October 3, 1949.

 Owing to his differences with Congress and Pt Jawaharlal Nehru for backing out of promise to get passed Hindu Code Bill as drafted by Dr Ambedkar on the intensions of the Prime Minister, he tendered his resigned from the Union Minister as Law on 28^th September 1951. The Modern Manu sacrificed his Cabinet Minister’s post for the cause of women of India, who were treated even worst than untouchables. While resigning Dr Ambedkar sighted five sounding reasons for doing so . In the third reason he wrote that the Congress ‘s  Kashmir policy was wrong. He said that Hindu and Buddhist part of Kashmir be made part of India and Muslim dominated part be given to Pakistan. He also suggested to have a strong Indian centric Forign Policy,which India was lacking. The treatment meted out  to him personally  in matters of allotment portfolios and to Scheduled Castes in matters of employments and their empowerment was un-natural.

The concessions Maharaja Hari Singh granted to the Scheduled Caste in 1931 were after attending the Round Table Conference where Dr.Baba Sahib Ambedkar ‘s  speeches had shaken the conscious of right thinking Indians and British.Dr Ambedkar when explained the plight of 20% of Hindu Population in India  even worst than animals and repitiles.Maharaja Hari Singh granted permission to allow use of public wells and tanks to the Scheduled Castes. He ordered opening of temple doors  to them. He accorded sanctions to give scholarships to their school going  children. He nominated two SC members to Praja Sabha  and ordered not to discriminate any SC on the basis of their low caste tags. The Untouchable students were allowed to attend class room cases along with the other high caste students.

Dr Ambedkar a democrat to the core  was a great visionary. He never supported the Art.370.The state of Jammu and Kashmir State Governments  by banking on the support of Art. 370 have made selective application of the Laws passed by the Parliament.  It has created more problems than solving them. The reforms carried by Sheikh Sahib were taken much before this article cam into application. There after his political heirs has only diluted those revolutionary provisions.

The worst suffers of the selective application of rules passed by the Parliament in J&K are the  poor Reserved Categories people such as Scheduled Castes, Scheduled Tribes and OBC’s particularly in matter of Reservation in  recruitments  and promotions. These rules came into force in Union of India except in J&K even before Indian independence. A number of hunger strikes,dharnas,agitations,resolutions by scheduled caste peoples have failed to get their rightful share in services or promotions. Even Bhagat Amar Nath Laid his life for the denied rights of the SC’s in the state. The first government SRO in 1971 was issued25 years after Indian got independence.This  has now been given the shape of an act after lapse of an  another35 years.. But practically against 8% fixed quota in services has not crossed even 4% mark. Recently nearly a lakh of recruitments were made in different department under the garb of Rehbere  Talim and other such flimsy names throwing  share of Reservation claims of SC’s  to winds. Even in the matters of nominations in the Legislative Councils from 1952-1996, out of 172 nominations only 6 were members of SC’s. In the Indian Parliament from 1952-1998 as many as 78 MP’s ( RS30 &LS48) were elected or nominated but  none from the SC’s. Since 1952 not even a single person belonging to SC communities have seen the Parliament from with in as its member. Host of  Govt. department including Education universities being run on the Government funds do not bother to give practical effects to the reservation rules. These universities have either H.E. the Governor of the State  or the Chief Minister as Vice Chancellor.  If they are helpless or unmindful to the grave injustice to the poor SC,ST,OBC persons then  one does not know ,where to appeal for justice. These anomalies would have been avoided had the opposition to Art.370 by Bharat Ratana Baba Sahib Bhimrao Ambedkar been acceded to by then political masters. The integration of minds not of words matters which is lacking.

Er H.R.Phonsa

Writer can be contacted on hrphonsa@gmail.com

References:-

1. Dr Ambedkar,Life and Mission by Dhananjay Keer

2. Dr Ambedkar Writtings and Speeches Vol 13 Govt of Maharastra publication

3 Pasmanda Awam Ka Messiah Bharat Ratana Dr. baba Sahib Bhimrao Ambedkar   

    By S.N.Dogra Jani Pura Jammu( Urdu)

4.Jammu and Kashmir 50 yearsInformation Department J&K Government.

5. Dr.Ambedkar Jeewan Ate Kirtan( Punjabi) By L.R.Bali  editor Bheem Patrika Jallander

6.Dr Ambedkar Chintan aur Vichar( Hindi) Dr Rajinder Mohan Bhatnagar

7.Dr B.R.Ambedkar the Messiah of the Down trodden by Janak Singh.

8.Writer’s article “First SC’s in J&K” published in the Annual Report 2012 of the

   All J&K Retired Employees Forum for welfare of underprivileged.

9. The Truth  about Article 370 by  Arvind Lavakare

10. Limitation of Art. 370    Autonomy: Myth and Reality by Dr. M. K. Teng