Article 370 History

I think all political parties are wrong about what they are saying on Article 370 of the constitution.  Article 370 was never supposed to be permanent. You can read about the frustration Nehru with Sheikh Abdullah in his letter on 27-April-1953. I believe it was always an arrangement to make sure the accession of J & K happened without much problem. I believe most stakeholders at that time understood that it will go away when circumstances were much better.
So, what has happened now is no different in what has been going on over the year. The only thing that is different is the speed with which it was done. I would have actually liked political class to own up their gradual integration process that has been ongoing over the years rather than taking the line that they took right now.  Here is a brief account of what happened. These notes that leaders of that era sent to each other are great insight into what was going on in their heads.
Maharaja Hari Singh signed the instrument of access on 26 October 1947. This was formalized under article 370 later. Under this, the following rights were awarded to the Central Government.

• Defense
• External Affairs
• Communications
• Ancillary -- related to the election to the central legislature

Following is the list of significant events after the signing of the instrument of accession.

• 27-October-1947 Maharaja Hari Singh sends a letter to Lord Mountbatten requesting him to accept the accession because he needs help from India and India can not provide the help unless accession is complete.
• 27-October-1947 Lord Mountbatten replies accepting the accession and also making a note that as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people.
• 30-October-1947 Maharaja issues emergency administration order appointing Sheikh Mohammad Abdullah as head of administration.
• 05-March-1948 Maharaja issues a proclamation appointing a popular interim government
• 09-June-1949 Maharaja issues proclamation entrusting Karan Singh with all Maharaja's powers in his absence due to ill health.

Sardar Patel's Letter to Nehru on 03-November-1949 Justifying the Alteration

New Delhi 

3 November 1949 

My dear Jawaharlal,

There was some difficulty about the provision relating to Kashmir. Sheikh Sahib went back on the agreement which he had reached with you in regard to the provision relating to Kashmir. He insisted on certain changes of a fundamental character which would exclude in their application to Kashmir the provisions relating to citizenship and fundamental rights and make it necessary in all these matters as well as others not covered by the accession to three subjects to seek the concurrence of the State Government which is sought to define as the Maharaja acting on the advice of the Council of Ministers appointed under the proclamation of 8 March 1948. After a great deal of discussion, I could persuade the party to accept all the changes except the last one, which was modified so as to cover not merely the first Ministry so appointed but any subsequent Ministries which may be appointed under that proclamation. Sheikh Sahib has not reconciled himself to this change, but we could not accommodate him in this matter and the provision was passed through the House as we had modified. After this he wrote a letter to Gopalaswami Ayyangar threatening to resign from the membership of the Constituent Assembly. Gopalaswami has replied asking him to defer his decision until you returned.

Yours sincerely, 

Vallabhbhai Patel 

The Hon’ble Pandit Jawaharlal Nehru
Prime Minister

• 25-November-1949 Yuvaraj Karan Singh accepts the new constitution as drafted by the constituent assembly
• 26-January-1950 First government order applying the constitution to J & K

Nehru's Letter to Sheikh Abdullah on 27-April-1953

New Delhi 

April 27, 1953 

My dear Shaikh Saheb,

[…]

I am writing to you, however, about a matter, which has been distressing me for some time. This is the very slow progress made by your committees etc., in regard to giving formal shape to the relationship of Kashmir with India, in terms of the agreement arrived at last year. Normally, I would have thought that, in a matter of this kind, there would have been some speed in implementation. It is now about nine months or so since that agreement was arrived at. I know of course the difficulties you have had to face.
[…]

But the fact remains that this continuing trouble is a strain on all of us. We should like to see the end of it. It would no doubt have ended long ago if we could have said definitely that the Jammu and Kashmir Government had finally implemented the agreement arrived at last year. The only thing that keeps going this trouble and agitation is the charge that even the Agreement has not been implemented. We have no reply to that or rather the reply we have given grows more and more stale as time goes on.
[…]

If that is so, then this matter at least should be tackled with speed and settled. I do not mind how long the rest of your Constitution takes. If it is said that this a part of the entire Constitution and must, therefore wait for it, that argument could have equally applied to the change made in the headship of the State. If that can be isolated, so can other matters we had agreed upon.

My own view about the Constitution has all along been that it is always better to have a brief and flexible Constitution. We have made a mistake, I think, in having too long and complicated a Constitution of India and we are regretting it. If I had another chance, I would not repeat this error, because it comes in the way all the time.

The Constitution of Jammu and Kashmir State will necessarily have to fit into the Constitution of India, if Jammu and Kashmir State is a constituent unit of India and is part of the territory of India. But for the moment I am not concerned with the whole Constitution but only with that part which defines the relationship to India. I fear that the longer we delay this, the more difficult the situation becomes.

Yours sincerely, 

Jawaharlal Nehru

• June 1953 Maulana Abul Kalam Azad was apprised of developments related to the 8 member workin committee on the future of Kashmir which was discussing Plebcite and Independence. 
• July 1953 Nehru was informed about this decision
• August 1953 On August 8, 1953, just two days before the next working committee meeting, Sheikh Abdullah was arrested along with many of his colleagues. 

Nehru's Note on Sheikh Abdullah's Arrest

The present drift and the resulting confusion cannot be allowed to go on. The policy of Government must be clearly stated to the public. The members of Government should not speak in different voices. In order to remove doubt about this policy, a brief memorandum might be prepared and placed before the Cabinet. In this Government’s policy should be precisely stated. Apart from other major issues, there might be some reference in it to certain economic issues also; or, if it is preferred, the economic issues can be stated in a separate note. Among these economic issues might be mentioned the raising of the price of procurement of rice, the removal of the customs barrier, etc., the object of all this being to lessen the burden on the common man. 

The main point clarified in the memorandum should be the future of the State which has given rise to so much argument in public recently. Members of Government should be asked to support the policy laid down in its entirety. 

If, as is probable, some members of Government do not agree with this policy and this statement, the majority should nevertheless accept that policy. If the minority refuse to abide by it, the continuation of the present Government becomes impossible. The Head of the State should be informed accordingly. He should ask for the resignation of the Government because it cannot function as a team and pursue its contradictory policies. If the resignation is offered, then the Head of the State should call upon another person representing the majority view to form a new Government. 

It will be desirable not to allow any marked lapse of time between the demand for resignation and the formation of the new Government. The Head of the State should send for all members of Government and inform them of his decision and ask for their resignations. If the resignations are not forthcoming, he should have an order ready for the dismissal of the Government because it cannot fulfil its functions properly. Immediately he should entrust the formation of the new Government to the other person. 

It will be desirable to prepare the ground for this, insofar as considered feasible, with prominent members of the Executive of the Party.

Immediately after the formation of the new Government, the Executive of the Party should meet. Both the new Government and the Party should issue statements to the public stating the facts and indicating their policy, including their economic policy. 

Some persons who are notorious for their corrupt activities should be apprehended and steps taken for an inquiry into those activities. 

It may be desirable to arrest one or two such persons, who are known to be corrupt, even before the steps indicated above are taken. But this is a matter of judgment. 

All necessary steps should be taken for the preservation of law and order. Any persons taking a lead in creating any disturbance should be apprehended. Such assistance as may be considered necessary for the maintenance of law and order should be available. Any action taken should be carefully calculated so as not to exceed the necessities of the situation, and the change-over should be as peaceful as possible. 

Immediate first steps afterwards should be the removal of certain well-known corrupt officers, etc., suspension of others whose loyalty is doubted, and an appeal to the people for maintenance of peaceful conditions. The broad outlines of the programme of the new Government should be given and it should be stated that it would be for the people to decide ultimately what political or economic policy has to be adopted—the sole test will be the good of the people and their wishes in the matter.

• 14-May-1954 Constitution of J & K is notified under CO 48.
• 17-November-1956 Constituent Assembly dissolves itself.
• 10-April-1965 Constitution of J & K (Sixth Amendment) Act, 1965 is passed. Expressions Sadar-i-Riyasat and Prime Minister are replaced with Governor and Chief Minister. Rules regarding the appointment of the Governor are defined. 
• 42 Constitution Orders were issued over the years resulting in 260 of the 395 articles of Indian constitution being applicable to J & K, 94 of 97 entries being applicable and 26 of 47 entries being applicable to the state.

Nehru's Note of 3-July-1952 regarding his plans for Kashmir's Integration

1. Kashmir, like other states, acceded to India on three subjects in October 1947 under rather peculiar circumstances. Later, other states became more integrated in regard to additional subjects and they accepted the Constitution of India in its entirety. 
2. This development did not take place in regard to Kashmir because of those special reasons—war with Pakistan, reference to UNO, etc., and therefore Kashmir’s accession was continued to be limited to those three subjects. This was a fluid condition, which could not be finalized then. When our Constitution was taking its final shape, something had to be said about Kashmir and, therefore, some transitional provisions relating to Kashmir were added to it. The position remained fluid.
3. The Dominion of India became the Republic of India. That made no difference to Kashmir and its accession to the Republic of India was also in regard to those three subjects only. 
4. In the normal course, more definite shape would have been given to the position of Kashmir in the Union of India and the transitory provisions would have been replaced by a more permanent arrangement. But, chiefly because of the reference to the UN, we did not take this matter up and allowed things to continue in the transitional and rather vague state. Even in the transitional clauses of our Constitution, reference was made to a future Constituent Assembly of Kashmir State, which was to draw up a Constitution for Kashmir. 
5. Now that this Constituent Assembly of the J&K State has started functioning, we can no longer delay taking decisions in regard to some of these matters affecting the relation of Kashmir to India. This has been brought to a head by the desire of the Kashmir leaders to change the nature of the Headship of the State. In considering this particular matter, we cannot isolate it from other matters. Therefore, we have to define with some precision, though not necessarily with detail, the nature of this relationship. 
6. The first question that arises is this: must all constituent units of the Republic of India have exactly the same relation to the Union, as embodied in our Constitution and various Lists of subjects, or can there be a variation?
7. If they must stand on exactly the same footing, then there is not much room for argument and Kashmir must line up with the others.
8. This is not a practical proposition and, even from the larger point of view, it is desirable to have a certain flexibility in our Constitution. Therefore, we must proceed on the basis of some special treatment of J&K State in this connection. 
9. Whatever special treatment we may accord to that State, if the State is a constituent unit of the Union of India, then certain inevitable results flow from it. 
10. We proceed on the assumption that J&K State is a constituent unit of the Union of India. For the present, the major Central subjects in regard to the State are three only, namely, Foreign Affairs, Defence and Communications. We accept that limitation for the present, but it must be made clear that these subjects can be added to. Even now certain additions will have to be made to bring out the inevitable consequences of J&K State being a part of India. These would not be major subjects, but rather corollaries of accession. 
11. Accepting that J&K State is a constituent unit of the Union of India, it follows that there can only be one common nationality or citizenship, namely, that of the Republic of India. There cannot be any kind of separate citizenship for Kashmir or dual citizenship.
12. The authority of the President as given in our Constitution must be acknowledged. (The President has certain overriding powers of suspending the Constitution in a State.) It will have to be considered whether this power should remain in regard to J&K State. 
13. Any Head of the J&K State must be recognized by the President. 
14. The Supreme Court must function in the State in regard to anything connected with the subjects of accession as well as Fundamental Rights and other important clauses. The Fundamental Rights may be varied, with our consent, by the Constituent Assembly for Kashmir. There may be other variations too in the Kashmir Constitution. The Supreme Court, however, should be the final authority to interpret the Kashmir Constitution, as it does our own. 
15. The question to be considered is whether the Supreme Court should be the highest appellate tribunal for Kashmir also. 
16. The National Flag must be the symbol of authority in Kashmir. The new State Flag might continue, but not as a rival of the National Flag. 
17. There is to be financial integration. It does not necessarily follow that that integration should be exactly of the kind we have got with other States. In any event, it is to be remembered that customs revenue is the main source of income from Kashmir and if we take it, the whole State finances will collapse. It has to remain with the State for a number of years, which may be at least 10 and which might be 15.
18. The question of income-tax has to be considered in this connection also. 
19. As regards the Head of the State, once it is acknowledged that the recognition of our President is essential, the rest, though important, does not vitally affect our Constitution. I think that, in the circumstances, we must accept that the Head of the State may be elected. The period has to be considered. I do not think a life term is feasible. It is not likely to please anyone really. Possibly a longer term than five years might be better, from all points of view.

Nehru's note to Sheikh Abdullah Written at Sonamarg, Kashmir, on 25 August 1952

1. I am writing this note to convey to you my own basic views about the situation in Kashmir. During the last five years or so, I have naturally given a great deal of thought to the various factors governing this situation—military, political, economic and others. I have tried to make my approach as objective as possible. Naturally, to some extent, I am influenced by my own personal feelings and attachment to Kashmir. Thus it may be said that I have two approaches—that of the Prime Minister of India and the personal one. As a matter of fact, however, I have not found any conflict between those two. Some difficulties have arisen occasionally in my mind because I was not sure if my approach, personal or official, was completely in line with your approach. So far as I was concerned, you represented to me what the people of Kashmir wanted to be done, and as that was a paramount consideration for me, in the ultimate analysis I would accept that in preference to my own views. As a rule, there was no such conflict or difficulty. 
2. My own view has been clear for the last four years or so and, in spite of changing circumstances, I have found no reason to alter it basically. Because of this, I have not been worried much on account of new developments. Being clear in my mind as to what should be done, it did not matter much to me what Pakistan did or what the United Nations might do. I was, however, sometimes a little surprised, and somewhat worried, to find that the leaders of Kashmir were not so clear in their minds about the present or the future and were, therefore, worrying a great deal. To give an instance, the present talks with Dr. Graham in Geneva do not appear to me to have any great importance. They do not alter my appraisal of the situation, or what we should do about it. I find, however, that much greater importance is attached to these Graham talks in Geneva, here in Kashmir, and there is some apprehension also about their result.
3. [....]
4. After some experience of the UN, I came to the conclusion that nothing substantial could be expected from it. It was clear that we would not give in on any basic point, whatever the UN might say. It seemed also clear that Pakistan would not simply walk out and revert to the status quo ante-war. Thus,  towards the end of 1948 it seemed to me that there were only two possibilities open to us: (1) continuation of the war in a limited way; (2) some kind of a settlement on the basis of the then existing military situation.
5. I have not mentioned the plebiscite, because it became clear to me then that we would never get the conditions which were necessary for a plebiscite.1 Neither side would give in on this vital issue, and so I ruled out the plebiscite for all practical purposes.
6. [....].  Even that war, apart from foreign intervention, would not be a very easy or quick one. We had definite superiority from the military and industrial points of view, but that superiority was not so great as to overwhelm the enemy. And then, there was always the question of what foreign powers might do either in interfering or in aiding Pakistan in other ways.
7. The result of all this thought, and my own powerful inclination to avoid war on a big scale which brought disaster in its train, whatever the result, led me to certain definite conclusions towards the end of 1948. These conclusions were that the only possible way of putting an end to this conflict was by accepting, more or less, the status quo then existing. We were not prepared to give up any territory we possessed to Pakistan. But we might, for the sake of peace and a settlement, agree to their holding what they then had. I was doubtful if Pakistan would accept this. If not, then we continued where we were.
8. This conclusion was not a very pleasant one to me, but logically I could not help arriving at it. When I met Attlee and Bevin and Liaquat Ali Khan in London in the last quarter of 1948, I mentioned this briefly to them saying that it was entirely a personal suggestion because of my desire to end this conflict. I was not at all sure how far my own Government, or the Kashmir Government, would agree to it, because they felt strongly on this question of Pakistan aggression. Liaquat Ali Khan refused to consider this matter on this basis and there it ended.
9. At the end of 1948 we agreed to a ceasefire. I think it was a right move, but the question was not properly approached. We could have got the ceasefire on a somewhat better line if we had given more thought to it. However, that is a past mistake. 
10. Since then, we have had the ceasefire, and all kinds of talks with the UN people have gone on without much result. Throughout this period, my old conviction has taken root in my mind that the only feasible solution, short of resumption of war, was the acceptance of the status quo, more or less. War, I ruled out for a variety of reasons, unless it was thrust upon us by Pakistan. 
11. […] 
12. [....]
13. As Prime Minister of India, I have to look ahead and consider the basic national interest of India. It is my duty to guard that interest. That interest fits in with ideas of world peace and the avoidance of war whether in the world or with Pakistan. But, of course, that does not mean that we should not be prepared for any contingency. That interest itself demands full preparation for war or peaceful effort. Fortunately, we have no troubles with any of our neighbours, or, for the matter of that, with any country in the world. Nor are we afraid of any country, however big it may be, invading India or compelling us by force to do something that we do not want to do. There is one present exception and that is Pakistan. We are superior to Pakistan in military and industrial power. But that superiority is not so great as to produce results quickly either in war or by fear of war. Therefore, our national interest demands that we should adopt a peaceful policy towards Pakistan and, at the same time, add to our strength. Strength ultimately comes not from the defence forces, but the industrial and economic background behind them. As we grow in strength, and we are likely to do so, Pakistan will feel less inclined to threaten or harass us, and a time will come when, through sheer force of circumstances, it will be in a mood to accept a settlement which we consider fair, whether in Kashmir or elsewhere. The only danger is that the Government of Pakistan, or some military clique there, might, in sheer desperation, launch on an adventure. That danger has to be faced and prepared for. Otherwise, our national interest demands that we should adopt a firm but non-provocative attitude towards Pakistan, and build up our economic strength, keeping our defence forces in good condition for any possibility. The world situation also demands that we should follow this policy. 
14. What is the position of Jammu and Kashmir State vis-à-vis India? Looking at it objectively, this State is of importance, both from the strategic and other points of view, to both India and Pakistan. Hence, the conflict between the two. We are not prepared to give in to Pakistan on that issue, even though it means war. The utmost we can do is to give in so far as that area is concerned which is occupied by Pakistan. That itself, strategically, is a disadvantage to us. But we are prepared to accept that disadvantage for the sake of peace. If the whole of the State went to Pakistan, it would be a danger to the north of India, and there would be continuous tension between us and the party controlling that State. Thus, purely from the point of view of India’s national interest, we cannot agree, unless circumstances force us, to see this part of Kashmir State go to Pakistan. There are no circumstances visible that can force us to do this. Pakistan cannot. The United Nations cannot override our wishes in this matter. 
15. This is an objective statement from the point of view of India’s national interest. There is another aspect which we have stressed, and which is important. This is the wishes of the people of Kashmir. If the people of Kashmir clearly and definitely wish to part company from India, there the matter ends, however we may dislike it or however disadvantageous it may be to India. But, as I have stated above, I see no chance or whatever of any proper plebiscite determining this question, because the plebiscite itself raises highly controversial issues in regard to the conditions governing it and all that. So, ruling out the plebiscite we have to accept the present leadership of Kashmir and the Constituent Assembly there as representing the will of the people of Kashmir. If the Constituent Assembly told India to get out of Kashmir, we would get out, because under no circumstances can we remain here against the expressed will of the people. As far as I know, the Constituent Assembly will not do such a thing and therefore, the question does not arise for me. 
16. Speaking now for a moment purely as a Kashmiri, I think that it would be the ruin of Kashmir if Pakistan took possession of it. I need not dilate on this issue, but I am convinced of it.
17. [....]
18. [.....]
19. In fact, Jammu and Kashmir have to hold together. If Jammu is separated, Kashmir goes. If Kashmir goes, Jammu’s position becomes precarious and the conflict does not end. Statesmanship therefore requires that Jammu and Kashmir should hold together. The people of Jammu, therefore, should be made to feel the advantages of this union and the dangers of breaking. They should be won over and not irritated because the safety and freedom of Kashmir is linked up with the retention of Jammu.
20. [....]
21. [....]
22. [....]
23. It must be remembered that the people of the Kashmir valley and roundabout, though highly gifted in many ways—in intelligence, in artisanship, etc.—are not what are called a virile people. They are soft and addicted to easy living. They are surrounded by hardy tribes in the north-west of Pakistan and even in the northern areas of the State. It will be difficult, and indeed hardly possible, for the people of Kashmir to survive by themselves, it left to their own resources. It was all very well when there was a strong suzerain power like that of England which could prevent harassment and raids. But if a strong suzerain power is absent, then Kashmir is likely to fall an easy prey to these depredations.
24. The result of all these considerations is that the only desirable future for the State is with a close association with India, retaining her autonomy in most ways; that Kashmir and Jammu should hold together; that we should consolidate our position in these areas and not care very much for what happens in the ‘Azad Kashmir’ areas. Most important of all is that we should have no doubts in our minds about these matters. Doubts in the minds of leaders percolate to their followers and to the people generally. The weakness of the situation in Kashmir is the constant discussion which go on between people holding different views. I do not know how many such groups there are, but obviously, some people talk about a close association with India, others talk about a loose association with India, yet others think, if not talk, of an association with Pakistan, and yet others talk about independence. All this confusion in ideas and constant debate weakens the basic position. What is required is a firm and clear outlook and no debate about basic issues. If we have that outlook, it just does not matter what the United Nations thinks or what Pakistan does.
25. Personally, I have that clear outlook and have had it for these years and it has surprised me that there should be so much discussion about obvious matters.
26. We have to consolidate the position in Kashmir, firstly, on the political plane by having this clear-cut idea about the future, and no nonsense tolerated, and, secondly, by improving the lot of the people, i.e., economic and other issues. Personally, I think that more important even than economic issues is an efficient administration. The common people are primarily interested in a few things—an honest administration and cheap and adequate food. If they get this, then they are more or less content. That is not enough, of course, and we have to go ahead. But there is far too much talk of going ahead, when we do not pay enough attention to basic things like administration and food policy. Slogans are good in their day, but slogans are dangerous companions when these basic problems have to be faced. It is dangerous to make promises which cannot be fulfilled or to talk tall just to gain the goodwill of the people for the moment. Facts cannot be ignored and have to be faced. The most important thing today in Kashmir is efficiency in administration and in food policy. […]
27. Finally, I would repeat that there must be a clear-cut idea about what we want in Kashmir and about Kashmir, and that idea must be adhered to without debate or argument in future. I have indicated that the only possible course for Kashmir is for the State to be closely associated with India, that association not interfering with its autonomy in most respects. If that is so, then it is not wise to say or do things which imperil that association. Again, Jammu and Kashmir have to hold together for the sake of each other. They cannot be separated. If that is so, then every effort should be made to encourage that idea, and not to say or do anything which irritates people or makes them think of parting company.
28. Our general outlook should be such as to make people think that the association of Kashmir State with India is an accomplished and final fact, and nothing is going to undo it. I am not talking of speeches repeating this, but rather of other facts being mentioned which tend to make people believe it. For instance, I should stress the fact that a tunnel is going to be built under the Banihal or that trade etc. is developing with and through India or that development schemes are being undertaken.
29. I would repeat that I have held these views concisely and precisely for the last four years, and nothing has happened during this period which has made me change them in the slightest. It is for this reason that meetings with Dr Graham or anyone else, or any developments in Pakistan, do not worry me in the least, in so far as Kashmir is concerned. What has sometimes worried me is what happens in Kashmir, because I have found doubt and hesitation there, and not clarity of vision or firmness of outlook.