By Narasimhan Vijaraghavan
On 11th July,2023, the constitution bench of Supreme Court, comprising Chief Justice of India Justice D Y Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, the first five in seniority, fixed day-to-day hearings from 2 August,2023, on a clutch of petitions pertaining to the nullification of Article 370.
It was made clear that the proceedings will be called In Re:Art.370, and not in the name of any petitioner or group, to demonstrate a national construct.
The lawyers will take care of the law. Supreme Court is a political institution said Justice Benjamin Cardozo and Justice Antonin Scalia, on an India visit remarked, “Supreme Court of India was undoubtedly the most powerful political institution in the world’. There cannot be a more epochal political dynamite imbued issue than Art.370 vying with the 5 judges’ sitting of Ram Janmabhoomi hearing.
How many of us have cared to find out that Dr. B.R. Ambedkar, father of our Constitution, was opposed to Article 306-A (now 370)? After hearing Sheikh Abdullah (who was referred to Babasaheb by Jawaharlal Nehru for constitutional recognition of special status) patiently – Dr. B.R. Ambedkar told him: “You want that India should defend Kashmir, India should develop Kashmir and Kashmiris should have equal rights as the citizens of India but you do not 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.” Ambedkar stood tall and his ground as uncompromising, in refusing to oblige Nehru, who had a soft corner for Sheikh Abdullah.
It was then Nehru approached N.Gopalasamy Ayyangar, who was then Head of the Emergency Administration in the State of Jammu Kashmir, to draft a clause providing for special status to the State. And more importantly, requested Ayyangar to ‘somehow pacify Sardar Vallabhai Patel as Ambedkar’s sway was only over himself and law”.
To the nation’s everlasting regret, as K Santhanam, a constituent assembly member himself said, strongman Sardar yielded to Nehru’s pleas and used his ‘sway over the Constituent Assembly members’ to get the Art.306-A incorporated. Alas, when the provision was ratified by the Constituent Assembly, the father of our Constitution and then Law Minister Ambedkar staged the most ‘principled walk out in Parliamentary annals’ commented Nani Palkhivala. While 564 Princely States consented to join the Indian Union without any caveats, Kashmir was granted special status and a separate Constituent Assembly and Constitution too.
The contemporaneous exchange between N Gopalaswami Ayyangar and Sardar Patel makes poignant and profound reading.
New Delhi 15th October, 1949
My Dear Sardarji,
Sheikh Abdullah and two colleagues of his had a talk with me for about an hour and, as I told you this morning there was no substance at all in the objections that they put forward to our draft. At the end of it all, I told them that I had not expected that, after having agreed to the substance of our draft both at your house and at the party meeting they would let me and Panditji down in the manner they were attempting to do. In answer, Sheikh Abdullah said that he felt very grieved that I should think so but that in the discharge of his duty to his own people he found it impossible to accept our draft as it was. I told him thereafter to go back and think over all that I had told them and hoped that he would come back to me in a better frame of mind in the course of the day or tomorrow. I have since thought over the matter further and dictated a draft which, without giving up the essential stands we have taken in our original draft, readjusts it in minor particulars in a way which I am hoping Sheikh Abdullah would agree to.I discussed this draft with the Drafting Committee in the evening and one or two small suggestions which they made have been incorporated in it. I enclose a copy of this redraft as also of my letter to Sheikh Abdullah for your information. I trust that this will meet with your approval. Yours sincerely, N. Gopalaswami
The Hon’ble Sardar Vallabhbhai Patel
New Delhi 16th October, 1949
My dear Gopalaswami,
Thank you for your letter of 15 October, which I received only this afternoon on my return from the Constituent Assembly. I find there are some substantial changes over the original draft, particularly in regard to the applicability of fundamental rights and directive principles of State policy. You can yourself realise the anomaly of the State becoming part of India and at the same time not recognising any of these provisions.
I do not at all like any change after our party has approved of the whole arrangement in the presence of Sheikh Sahib himself. Whenever Sheikh Sahib wishes to back out, he always confronts us with his duty to the people. Of course, he owes no duty to India or to the Indian Government, or even on a personal basis, to you and the Prime Minister whohave gone all out to accommodate him.
In these circumstances, any question of my approval does not arise. If you feel it is the right thing to do, you can go ahead with it. Sd. Patel
The ‘small suggestions’ and ‘interim arrangement’ was Art.370 from which was born Art.35-A, which are now occupying centre stage.
Sardar Patel is recorded to have said – as found in V. Shankar’s (ICS – Nehru’s Secretary at that time) Diary, ‘Jawahar Royega’ – Jawahar will cry.
Thus was born the special status for Amir-e-Khusru Dehluvi’s Kashmir. “Agarfirdous baroye zameen ast, hami asto, hami asto hami ast”- If there is paradise on earth, it is here, it is here, it is here.
No matter the politics, our prayers shall have to be that Jammu & Kashmir ever remain the Paradise it was always meant to be, for We the People.
(Author of Constitution- its Making/Working Oak Bridge- is practicing advocate in the Madras High Court)