In September 1949, the first article of the proposed Constitution of India was vehemently debated in the constituent assembly: some members wanted the ‘ancient’ name ‘Bharat’ to become the official name of the country, while others supported the more ‘modern’ term, ‘India.’
In the end, the framers agreed to refer to both in declaring that the name of the country was "India, that is Bharat..." It seemed that the debate was merely over an interchangeable name and so the compromise seemed apt. However, nothing could be further from the truth.
The India that the constituent assembly inherited in 1947 was not the same as the Bharat of the Hindu Shastras. In fact, it was squarely a British creation. Since the end of the Mauryan Empire over 2,000 years ago, no one government had ever held sway over what is now called India, and even the great Ashoka’s empire was still smaller than the British Indian Empire. The Mughals had dreamt of controlling this vast subcontinent, but never came close to resembling what the British managed in later years.
Furthermore, the India that the British created was also nothing like the Bharatvarsha of the Puranas. As shown by many scholars, Bharat neither corresponded with the modern boundaries of India, and nor did it signify a unified political entity. At best, it was reference to a certain type of a social order.
Nevertheless, Bharat soon became the imagined homeland of the Hindu right-wing and parties like the Bharatiya Jana Sangh, the precursor of the ruling Bharatiya Janata Party (BJP). Its associated ideologues interpreted it in the same way as Vinayak Damodar Savarkar had redefined Hindustan as the land of the Hindus. Thus, Bharat, in theory at least, became synonymous with a Hindu Rashtra.
On the other hand, the India that was created by the British and then realised through the Constitution of India in 1950, was a very different creature. Through centuries of rule, the British realised that India could not be run as a unitary state — it could not just be treated as a larger England, so to speak. India was too big, too diverse and too complicated to be governed in a singular manner.
Hence, while the Bengal had the permanent settlement of land revenue, the Punjab had the zamindari system and Madras the ryotwari system. Where there were once the three presidencies of Bombay, Bengal and Madras, with significant powers, other British-ruled territories had lieutenant governors and chief commissioners with varying degrees of authority.
Most importantly, where there was British India — territories directly ruled by the British — there was also princely India, roughly one-third of the landmass of the empire that had its own rulers and systems of government, subject to the paramountcy of the British Crown. All these different peoples, systems and forms, then, combined to constitute the British Indian Empire.
This diverse India was then inherited by the Constituent Assembly of India, which then formulated a Constitution that did not prefer any race, religion, caste or sect over another, and that wove together an intricate balance of power between the parts and groups of the country to create a secular, diverse and yet unified political entity. The series of events on August 5, 2019 have declared the unravelling of this consensus.
When the modern state of India was being created, the leaders of the Indian National Congress were wary of the princely states continuing as independent nations. With the British determined to lapse their paramountcy over the princely states, meaning that they would legally become independent when the British left, both Jawaharlal Nehru and Vallabhbhai Patel, the decision makers in independent India, did not want a Balkanisation of the country. The existence of Ulsters, they warned, would not be tolerated.
Therefore, the Instrument of Accession was devised by the clever VP Menon, reforms commissioner in the British government of India and subsequently the secretary of the ministry of states, as a means of addressing the potentially explosive situation.
While the British had different types of agreements with the princely states, and at times multiple treaties, and then exercised unrestricted power over them under the doctrine of paramountcy, the Instrument of Accession streamlined the relations between the Centre, as it was now called (instead of the Crown), and the states.
Sold to the princes as better and more limited in nature than paramountcy, the Instrument stipulated that the Centre would only take over the subjects of defence, foreign affairs and communications — subjects, which Menon noted, the British were already handling for the states. Except for these three, the states would be completely free in every other sphere of government, and the rulers would even retain their ultimate sovereign status.
However, as it happened, before the ink was scarcely dry on the Instrument of Accession, the government of India began to go back on its pledges. As noted by Menon himself, the moves by Patel to create a union of Orissa and Chhattisgarh states in December 1947 — a mere few months after these grand constitutional instruments had been signed — was "contrary to the assurances held out in his own statement". Yet, the mergers and the reorganisation of the states continued unabated.
By the end of 1950, almost all smaller states had been reorganised into either unions of states or merged in adjoining provinces, some medium-sized ones converted into chief commissioner's provinces, and only the three largest ones — Hyderabad, occupied Jammu & Kashmir and Mysore — survived territorially intact.
While this integration of the states, as Menon called it, was forced through, clear legal cover was also given to such changes. All princes signed a supplementary Instrument of Accession agreeing to the mergers and changes, thus signing their death warrants themselves. The only sop, which while promised for life but only lasted less than 30 years, was a privy purse that gave them some confirmed income.
In the story of both the accession and integration of the Indian princely states, the status of Kashmir has been peculiar. Since the state had not acceded to either India or Pakistan by August 15, 1947 it legally became an independent country on that date.
The wavering attitude of the maharaja, a Hindu Dogra who presided over an overwhelming Muslim majority, encouraged a revolt against his rule in the Poonch jagir, followed by a tribal invasion from the erstwhile North West Frontier Province in Pakistan in October 1947.
Seeing that his days on the throne of Kashmir were perhaps numbered, a scared Hari Singh appealed to India for aid, but help was not forthcoming till he signed the doted line in favour of New Delhi. Hence, in what India regards as legal, and Pakistan fraudulent, it was alleged that the maharaja of Kashmir signed the Instrument of Accession to India on October 26, 1947.
Whereas Pakistan refused to recognise the Instrument, arguing that it was most likely signed after Indian troops had landed in Srinagar on October 27, 1947 — that is, after India had practically occupied the state — the fact that there was a popular revolt against the ruler made even a properly signed Instrument inoperative.
Significantly, India itself undermined the legitimacy of the Instrument by agreeing that the question of the ultimate accession (and hence, integration) of the state to India would be decided by its people. Thus, in a way, the Instrument became an intermediate constitutional document, till the formal terms of accession and integration were settled.
The formal relationship between the (occupied) State of Jammu & Kashmir and the Republic of India, thereafter, was set by both the Constitution of India 1950 and the Constitution of the State of Jammu & Kashmir 1956. Article 370 of the Indian Constitution expressly noted that the central government could not legislate for the state except for three subjects surrendered to the government of India: foreign affairs, defence and communications.
For all other subjects, the President of India had to get the express consent of the government of (occupied) Jammu & Kashmir, which initially was supposed to be the maharaja, and then the sadr-e-riyasat, acting upon the advice of the council of ministers.
The article also clearly noted that the president could only declare this special provision for the state inoperative or issue amendments or any modifications to it with the necessary recommendation of the constituent assembly of (occupied) Jammu & Kashmir.
With the dissolution of the constituent assembly of (occupied) Jammu & Kashmir in 1957, after the promulgation of its Constitution, Article 370 was deemed to have become permanent and inalterable since the only authority that could recommend any changes to it, namely the constituent assembly of the state, was no longer in existence.
This article therefore enshrined not just the special status of the state of (occupied) Jammu & Kashmir, but with its later provisions for various other states and regions, underscored the diverse and varied nature of the Indian Union.
This recognition of difference within one political union was the benchmark of the Constitution of India, which recognised and preserved several elements of the diversity through which the British had also created their empire.
The events of August 5, 2019 therefore not only perpetuate a fraud on the Kashmiri people, but also the Constitution of India, and indeed the very idea of India. Using a term from the current popular debate in India, if this subversion of the framework of the country and its people is not ‘anti-national’ then I am at a loss to understand what is.
The manner in which the BJP and its allies have attempted to fraud the Constitution and people of India shows that they have no respect for the Constitution as the supreme national institution of the country. In fact, the way this subversion was planned and executed betrays the disdain and contempt of the ruling party towards the consensus developed by the founders of India.
The slow and steady way in which first the governor’s rule was imposed in (occupied) Jammu & Kashmir in June 2018, followed by the dissolution of the state assembly in November 2018 and then the imposition of president’s rule in December 2018, exhibits the long planning and premeditation of this fraud. Since there was no legislature in the state, the Lok Sabha then assumed the powers of the legislature for the state under president’s rule.
Completing the long unravelling fraud, on August 5, 2019 the president then promulgated the Constitution (Application to Jammu & Kashmir) Order 2019, under which the "Government of the State" was redefined as the "Governor of the State of Jammu & Kashmir" while references to the "Constituent Assembly of Jammu & Kashmir" became the "Legislative Assembly of the State".
Hence, with one stroke of the pen, the President of India changed the constitutional status of (occupied) Kashmir, without the need of even consulting the people or the elected representatives of the state. Thereafter, in consultation with his own appointed governor, the president extended the full Constitution of India to the state and completely integrated it in the Indian Union.
But the fraud did not end there. The substitution of the constituent assembly, which had long been dissolved, by reference to the legislative assembly meant that the government could also alter the boundaries of the state under Article 3 of the Constitution.
Thus, the Jammu & Kashmir (Reorganisation) Bill, 2019 was hastily passed by the Lok Sabha on August 6, 2019 (having been passed by the upper house, the Rajya Sabha, a day earlier), breaking up the state and demoting it into two union territories known as the Union Territory of Jammu & Kashmir and the Union Territory of Ladakh.
The bill further removed all references to the special status of (occupied) Jammu & Kashmir in the Indian Constitution, thereby forever obliterating its existence. All this was done in a very clever and fraudulent way by the government, which aimed to subvert the spirit of the Constitution and wanted to deny all forms of democratic representation to the people of (occupied) Jammu & Kashmir.
The fact that the Lok Sabha, where only six out of 546 legislators even represent the state, acted as the state assembly and dismembered the state, made a mockery of this temporary provision during the president’s rule and made this move resemble fascist Germany more than democratic India.
The forceful and fraudulent integration and breakup of (occupied) Jammu & Kashmir exemplifies that no state is now safe in the Indian Union. Kashmir had its own Constitution, flag and special provisions. If its special status can be abrogated, then the central government can inflict this fate on any other state, regardless of whatever its people will.
Thus, tomorrow morning the central government could dismiss the legislature of, say, Tamil Nadu, declare it to be under president’s rule and then assuming the powers of the state assembly, dissolve and reorganise the state as it pleases. The whole notion that India is a union of states and that the people of each state have a democratic right to declare their wishes has been simply abolished.
Editorial: NSC on Kashmir
The fact that such a fate has befallen on the people of (occupied) Jammu & Kashmir furthermore shows the contempt the current government of India has towards the people of the state.
Days before it happened, the region was put under a virtual curfew, with political leaders detained or under house arrest, internet and telephone services shut and several thousand more troops and paramilitary forces deployed in the state. If the central government wanted to show to the Kashmiris that they were indeed under occupation and soon to be annexed, then the optics had certainly done the job.
Moreover, the manner in which the state has not only been integrated but also dismembered and downgraded exhibits that the Modi government wants to humiliate the people of Kashmir.
The fact that the people of the state do not even deserve an assembly now, as is the proposed fate of Ladakh, or just a tooth-less assembly, as in the proposed Union Territory of Jammu & Kashmir, shows that the central government wants it communicated to the people that they are now under the thumb of the central government and that they are certainly not fit to rule themselves. That post-colonial states are often more colonial, as pointed out by several scholars, clearly rings true here now. There is no longer even a fig leaf.
Oped: A sinister move
One of the main reasons for the creation of Pakistan was that a large number of Muslims in India simply could not trust that their rights would be safeguarded in a united India which had a Hindu majority. The experience of the Congress ministries from 1937 to 1939 in some provinces of British India laid bare to them the looming threat of a ‘Hindu Raj’ if a Hindu-dominated Congress came to power in a united India.
As history unfolded, India did not become the 'Hindu Raj' the Muslim League expected it to become, and the treatment of (occupied) Jammu & Kashmir, which was Muslim majority and yet had its own Constitution and special provisions, was held as the shining example of the absence of Hindu majoritarianism in India.
Nehru’s India was therefore larger and more encompassing than the Bharat of the Hindu right, and the Constitution of India, even if acknowledging both names for the country, preferred to use India first.
The abolition of Article 370 and the forced reorganisation of (occupied) Jammu & Kashmir is a step towards the realisation of the Hindu Raj. While minorities in India had begun to feel the pressure of majoritarian Hindu rule decades ago, it was never so easy and naked.
Minorities in India had always reposed their trust in the Constitution as the ultimate safeguard of their rights, and had hoped that it will ultimately preserve the pluralistic and secular India.
However, the manner in which the Constitution has been subverted and trampled upon, and the sheer majoritarianism and Hindu domination agenda of the present government, means the unravelling of the very idea of India.
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