Bharatavarsha (the ancient name for the
Indian subcontinent) has historically been a land of great socio-cultural diversity
and lingua-religious heterogeneity from times immemorial. The fragmented
governance structure in the British Raj─ comprising of British India, a
quasi-federation of provinces and presidencies on one hand, and, the suzerainty
of princely states on the other─ only enhanced the regional and parochial fabric
of India. On top, the British exercise of supremacy over and institution of
polity for its territories was varied, eclectic and, often, nuanced.
Therefore, the main challenge before the
Constituent Assembly was to weave together a unified, cohesive country within a
diverse, pluralistic society. Dr. Ambedkar and the Drafting Committee not only
conceived a robust central regime, but also provided for the seamless
integration of motley princely states into that new, unified national identity.
The assimilation was engineered with a unique blend of unitary and federal
characteristics in the constitutional scheme. The objective was to curtail
divisive or disruptive forces within a diverse society spread across disparate
regions. Hence, Dr. Ambedkar envisioned and enshrined a strong, powerful Centre
in the Constitution to minimise the threat of fissiparous tendencies within
sections of people.
Concept of “Sovereignty”
To fully appreciate the vision of Dr.
Ambedkar, the architect of modern India, one has to comprehend the concept of
“sovereignty” well. Judge Huber defined “sovereignty” in the famous Island of Palmas Case as the independent
right to exercise “in regard to a portion
of the globe, to the exclusion of any other State, the functions of a State.” In
other words, it is the supreme and overarching power of a country to enact and
enforce laws within its territorial domain. The paramountcy cannot be shared or
transferred. Possessing complete sovereignty is an essential attribute for the existence
of any country.
There are two vital and complementary aspects
to the concept of sovereignty, namely, ‘functional
sovereignty’ and ‘seat of
sovereignty’. ‘Seat of sovereignty’ denotes the moorings, that is, the source
of sovereignty. It is the actual locus or situs where sovereignty rests and
resides. On the contrary, ‘functional sovereignty’ is about how sovereignty manifests
and gets exercised. The presence of a “cause
and effect” relationship between “situs” and “functionality” as a
distinguishing feature does not mean that sovereignty is divisible.
Dr. B.R. Ambedkar’s Vision
Dr. Ambedkar and the Constitution Makers
envisaged the vesting of sovereignty
with the people collectively and not
severally or specifically to any specific group, class or segment of society. In
fact, the realization that sovereignty had to be embodied in the people was
indelibly imbued in the minds of the Constitution Makers. It was the
ideological choice for the constitutional architecture of a new Bharat. The collective
ownership
and possession of sovereignty by the people of India was aimed at empowering
the masses. It was also meant to prevent local, regional or sectoral
aspirations and claims of sovereignty either transcending national unity or
threatening territorial integrity.
The Constitution Makers endowed the
Government of India and the state governments with the functional powers for
exercising sovereignty on behalf of people of Bharat as a whole. Dr. Ambedkar
expressed and embedded in the Constitution this notion of “the sovereign”
through a participatory democracy with no limitations on the power or paramountcy
of the people of India. Indeed his vision of sovereignty belonging to and
residing in the people is the foundational principle of our Constitution.
Sovereignty under British Imperialism
A historical review of British imperialism and
the independence struggle in the sub-continent during the 20th
Century sheds ample light on the progressive democratization of governance through
relinquishment of powers to the people. After the rebellion of 1857 the
corporate rule of British East India Company over the subcontinent was
abolished and the “seat of sovereignty”
transferred to the British Crown under the Government of India Act, 1858. Consequently, the
Court of Directors of the company was dissolved and its powers transitioned to
the Secretary of State for India, an appointee of the Crown. Likewise, the
Board of Control, the arm of the British
Government responsible till then for managing the empire’s interests
in India, was disbanded too.
The Act of 1858 also heralded the termination of
dual governance of territories by the Crown and the Company that had existed
earlier. It empowered the Crown to appoint its representative, the Viceroy, as
the Head of Government in the subcontinent. The Viceroy was made responsible to the
Secretary of State. This governance model continued despite modifications
introduced through Government of India Acts of 1912, 1915 and 1919. In general,
the form of government, in British India comprising of provinces and
presidencies, was unitary in character with a strong, absolute central
establishment, which derived its powers from the Crown. The princely states
enjoyed varying degrees of limited autonomy as weak vassals under the
suzerainty of the British Crown. Presidencies, provinces and the princely
states derived their limited administrative authority through devolution under
the sovereignty of the colonial power. In other words, jurisdictional powers,
that is, “functional sovereignty” (limited as it was) flowed to the bottom from
the “seat of sovereignty”, namely, the Crown at the top.
The Government of India Act, 1935, was in
response to the freedom struggle and demand of Indians for autonomy. The
legislative changes in the Act of 1935 reflected the aspirations of people for
self-rule. It provided for a bicameral
“Federation of India” consisting of provinces and princely states, even as
it excluded Burma from the territory of colonial India. But then, the enacted bicameralism
and federalism did not materialize since the statutory prerequisite─ of a
majority of invited princely states accepting the proposal─ was not met. British
India continued to be governed under the provisions of the Act of 1919. The
Federal Court was set up under the 1935 Act though. Provincial autonomy was accorded through the constitution of provincial
and central legislatures, for which elections were held in 1937.
In effect, very little in the governance
set-up changed after the Act of 1935. The “top-down” flow of “functional sovereignty”
from the “seat of sovereignty”, the Crown endured. The “Strong Suzerainty-Weak Vassals” relationships between the British Crown and
the princely states too continued as before.
The March towards Indian Independence
In the aftermath of World War II, calls for
freedom became increasingly strident. With an economy ruined and ravaged by
war, Britain lacked the resources to contain the escalating civic unrest in
India. Strikes, protests and agitations galore took their toll. The Christmas
Island Mutiny of 1942 portended a tinderbox-like situation in India even as the
discovery of vast oil deposits in the Middle East marked a strategic shift in
geopolitical compulsions. Finally, the landslide win of the pro-decolonisation,
Clement-Atlee-led Labour Party, against the imperialistic Conservative Party in
the general elections of 1945, indeed sounded the death knell on the British
Empire in the subcontinent. So, in September 1945, Viceroy Lord Wavell called
for fresh elections to the legislatures of British India provinces. It was also
declared that a constitution-making body would be convened after the elections.
A total of 1585 seats went for the polls in December 1945 and January 1946
under the Government of India Act, 1935.
The Bombay Revolt of February, 1946 was
perhaps the straw that broke the camel’s back. It surely would have put to rest
any thoughts of procrastination that the British may have harboured on the
transfer of power in India. Soon the British Government constituted and sent a
3-member, ministerial team on a mission to discuss with Indian leaders and
devise the plan for devolution of power. This Cabinet Mission’s main aim was to
pave the way for India’s freedom.
In the Cabinet Mission Plan of 1946 (proposed
on 16th June, 1946), the twin-nation
theory was propounded as a compromise formula to satisfy the aspirations of
Congress and Muslim League. A long-term settlement plan was conceptualised,
envisaging a “Union of India” with a relatively-weak centre and strong provinces.
The Congress Working Committee (CWC) disapproved of the limited powers afforded
to the Centre in the plan. As a proponent of a strong “Central authority”, it
did not officially accept the plan. Yet, it resolved to join the proposed
Constituent Assembly for framing the constitution of a free, united and
democratic India. The Congress, and later the Muslim League, participated jointly
in the “interim government” formed in September 1946, despite initial
reservations against its composition.
Eventually, the Constituent Assembly was
convened in December 1946. A total of 292 seats in the Constituent Assembly
were assigned to British India provinces and presidencies. The newly-elected
representatives in the provincial assemblies indirectly elected members of the
Constituent Assembly, through a single transferable-vote system of proportional
representation. The total membership
of the Constituent Assembly was 389, consisting of 292, 93 and 4
representatives respectively of provinces, princely states and chief
commissioner provinces of Delhi, Ajmer-Mewar, Coorg and British Baluchistan.
Explaining the effects of the Cabinet Mission
Plan, N Gopalaswami Ayyangar later stated in the Constituent Assembly that:
“…sovereign
powers over India as a whole now vest in His Majesty… Those powers are
exercisable both over British India and over Indian States, though the quantum
of those powers and the manner of their exercise differ… The act of ceding
sovereignty, that is transfer of the power…relate to the whole of India…. The
Mission's statement, therefore, that when British power is withdrawn, the
States become independent, should be construed to mean that such sovereignty as
His Majesty in fact exercises over Indian States will stand ceded back to the
people of those States.”
Indian Independence Act, 1947, and the Princely States
Much of the Cabinet Mission’s efforts were aimed at the formulation
of a plan, acceptable to both Congress and Muslim League, for the transfer of
sovereignty to the people of India on the lapse of British paramountcy and declaration
of independence. Further, the Mission declared that the suzerainty of the
Crown over the princely states would cease on the devolution of power to the
two proposed dominions of India and Pakistan. All bipartite relations, treaty
engagements and mutual obligations between the Crown and each of the princely
states were to be unilaterally dissolved and abrogated on
partition of India. The princely states were not
to be recognised as separate international entities. Yet, under the
twin-nation formula, the rulers were assured that they would be absolutely free to join one or other of the two successor-Dominions.
They were advised though that wishes of people and territorial contiguity
should be factored into their respective choice of accession. Pending the
final decision of the States’ accession, the respective Dominion was to assume
duties of protection borne till then by Britain. Mr. Clement Atlee, Prime Minister of United
Kingdom, confirmed this arrangement in his address on the then tabled Indian
Independence Bill, 1947, in the House of Commons on 10th July, 1946.
The British Government position was reiterated by Mr. William Hare, the Earl of
Listowel and Secretary of State for India and Burma, during his speech on 16th
July, 1946, in the House of Lords.
Indeed, the Indian Independence Act, 1947─ passed by the British Parliament and assented to by the Crown on
18th July 1946─ accorded independence to
and created only
the two Dominions of India and Pakistan. Further, the Act in its entirety makes no express
provision about the transfer of power to the princely states. Besides,
various Sections of the Act─ specifically
Sections 2(4), 7(1) and 19(3) ─ only provide
for the accession of princely states into either of the Dominions and removal
of difficulties and impediments to such accession. In fact, the Prime Minister
Mr. Clement Atlee unambiguously clarified the British position on the status of
princely states, in the House of Commons on 10th July, 1946, as
follows:
“It would...be unfortunate
if, owing to the formal severance of their paramountcy relations with the
Crown, [the Princely States] were to become islands cut off from the rest of India…In
fact, already a large number of the States have declared their willingness to
enter into relationships with the new Dominions, and some have been represented
in the Constituent Assembly of India. It is the hope of His Majesty's
Government that all States will, in due course, find their appropriate place
within one or other of the new Dominions…If I were asked what would be the
attitude of His Majesty's Government to any State which has decided to cut
adrift from its neighbors and assert its independence, I would say to the ruler
of that State, "Take your time and think again. I hope that no
irrevocable decision to stay out will be taken prematurely."
Thus, when a ruler executed the Instrument of Accession with
the Dominion of India, he surrendered paramountcy over all territories of his
state to the Dominion of India. Consequently, any sovereignty or independence
claims ceased and subjects therein became an integral part of the common pool
of the “People of India”. By sanctioning integration with the new Dominion of India, the plenipotentiary
rights of the ruler, over the territory of the princely state, got merged into
the national pool of sovereignty, represented collectively by the Union. Besides, representation of princely states in the Constituent Assembly of
India was subject to and contingent upon the acceptance of the resolution
passed on the Aims and Objectives.
Accession of Jammu-Kashmir
In the specific case of the erstwhile princely State of Jammu-Kashmir,
the ruler not only executed the Instrument of
Accession to establish an “irrevocable relationship” with India, but also
nominated four representatives to the Constituent Assembly of India. Hence,
when the nominees, namely, Messrs. Sheikh M. Abdullah, M.M. Afzal Beg, M.M.
Sayeed Masoodi and Motiram Baigra, took the pledge and signed the “Members
Register” of the Constituent Assembly on 16th June, 1949, the
integration of all the territories of that erstwhile princely State of
Jammu-Kashmir with India assumed finality.
The Constitution
was framed keeping in mind a unified India within the diverse ethos. The
unification was accomplished through an atypical “federal structure”. Dr. Ambedkar was convinced that if the princely
states were allowed to retain sovereignty, then territorial integrity would
become fragile, thus defeating the very vision of a “united, well-integrated” Bharat. It would also jeopardise the
installation of an effective participatory
democracy. And, most importantly, such a construct would run contrary to
the basic tenet of the People of India being the true owners of sovereignty.
Therefore, the Constitution was drafted to
provide for a strong centre based on the foundational tenet that the People of Bharat are the “repository of
sovereignty”. This cardinal principle is apparent from the resolution that
Sri. J. Nehru moved in the Constituent Assembly on 13th December,
1946 stating:
“This
Constituent Assembly declares its firm and solemn resolve to proclaim India as
an Independent Sovereign Republic…WHEREIN the territories…shall be a
Union…WHEREIN all power and authority…are derived from the people…”
It has been
fallaciously argued that the ruler of Jammu-Kashmir retained limited
sovereignty and did not merge with the Dominion of India, consequent to which
the State Government, as successor to the ruler, enjoys special status and
autonomous character. The flawed, irrational reasoning stems from the Instrument
of Accession, which states:
“8. Nothing in this Instrument
affects the continuance of my Sovereignty in and over this State, or, save as
provided by or under this Instrument, the exercise of any powers, authority and
rights now enjoyed by me as a Ruler of this State or the validity of any law at
present in force in this State.”
The
contention that the State of Jammu-Kashmir possessed “limited sovereignty” is
faulty. Indeed, Para 8 does not unequivocally qualify the noun “continuance of
my Sovereignty” with either “to perpetuity” or “in the interim”. Nonetheless,
the only logical conclusion is that the vesting of sovereignty in the ruler was of
a “transient nature” and it got extinguished once the ruler’s
representatives partook in the proceedings of the Constituent Assembly of India
and adoption of the Constitution. A contrarian interpretation would obstruct
and frustrate the flow of sovereignty to any other state, person or entity.
Integration of Princely States
Further,
the inclusion of representatives of the erstwhile princely states in the
Constituent Assembly of India implied their complete and seamless merger
with the Republic of India. It also snuffed out any and all paramountcy rights or
claims of the ruler, a necessary condition for ensuring parity between provinces
and princely states in the new Union of India. Then again, any sovereign
apparatus, be it monarchic or democratic state, ultimately derives its sanction
from the will of the people. In this day and age, it would be impossible for
hereditary monarchs to maintain sovereignty under the mediaeval or archaic
creed of divine right or endowed authority.
This idea was completely discarded with the creation of the Constituent
Assembly of India, which consisted of delegates from all provinces and princely
states, who collectively represented the entire nation. Hence, the constitution of sovereign, independent Bharat
is the concrete expression of the will of all people, its “situs of sovereignty”, as a whole.
The princely
states did not treat themselves special or unequal constituents of the nation
vis-à-vis the provinces. The spirit of unity was commensurately reflected in
the speeches of their representatives during the debates. The delegate from the
State of Baroda, Sir B.L. Mitter’s sentiments─ echoed by Sardar K.M. Panikkar
of the State of Bikaner─ epitomized the nationalistic fervor within the
Constituent Assembly. He articulated as follows:
“We,
the States, are an integral part of India… We, therefore, want to share the
responsibility of framing the Constitution…We are at one with you in that the
Indian Union should be strong in the Centre so that India may hold her head
high in the comity of nations. We do not believe in isolated independent
existence, which can only weaken the Union. We shall join you wholeheartedly in
a spirit of co-operation and not in any spirit or securing special privileges
at the cost of the Union.”
The assertions
of the representatives of princely states, as also the inherent legal mechanism
of a body composed with representatives of people and bestowed with constituent
power, signify the merger of their sovereign identity and political existence
into the new country of Bharat. Hence, sovereignty resides wholly and squarely
in all the people of India, and NOT either partly with any State Government
or separately with the people of any class, group or sector, such as, say, the
residents of Jammu-Kashmir.
Extent of Federalism in the Constitution of India
There are for sure many distinct forms of
constitutional structures and governance models, which define the relationship
between the Union and the constituent states or provinces within the Union. In
the “unitary form”, the Centre, that is, the Union is strong as compared to the
constituent states and wields most, if not all, the powers. Being endowed with
less or minimal powers, the constituent states are weak. The United Kingdom is
a good example of a “unitary form” of political structure. In the “federal form”,
the balance of power tilts towards the constituent states, which enjoy a great
deal of discretion. Though Union-State linkages exist, the constituent states
are empowered with greater degree of legislative and administrative freedoms.
The United States of America has a federal structure in its polity.
Our Constitution Makers described “India, that is Bharat” as a “Union of
States” [and not as “Federation of States”] in Article 1. Considerable
thought and discussion went into this foundational aspect of our nationhood. Dr.
Ambedkar repeatedly rejected pleas to add ‘federation’ instead of ‘union’. The
word ‘union’ prevents constituent states from having the freedom to secede from
the union. This unifies all States in perpetuity, no doubt. It also means that
they all are equal in status, without any of them being eligible for unique
claims or special privileges of their own.
Through Article 1, the framers of our
Constitution demolished the distinction between the erstwhile British India
territories and the princely states. Article 1 defines all constituent units of
India as ‘States’ irrespective of whether they were provinces, presidencies or
princely states earlier. The use of the word ‘States’ in “Union of States”,
which refers to an inseparable unit of India territory, is not to be confused
with that in “princely states”. Further,
Article 1 references the list the States comprising Bharat in Schedule 1, which
includes the State of Jammu-Kashmir. Indeed, the bogey of “autonomy” and
“special status” are often raised baselessly in case of Jammu-Kashmir.
An irrefutable fact is that the “Dominion of
India” came into existence as an integral entity first under the Indian
Independence Act, 1947. On the lapse of British paramountcy, “functional
sovereignty” devolved onto the “successor Government of India”. The “seat of sovereignty” though was
transferred to the People of India, who elected representatives to the
Constituent Assembly. The Constituent Assembly then exercised its “constituent
power” to draft, adopt and ratify Constitution of India, which conferred
“constituted power” on States for the exercise of “constitutional duties” by
“constitutional authorities”.
The division of powers between the central
and state governments is enshrined as a crucial facet of the Constitution,
which is devolutionary in nature. Thus, there is delegation or
decentralization, as the case may be, of some powers onto the constituent
units, namely, the States, which were created through the exercise of powers
vested in the Constituent Assembly.
The foregoing bears testament to the fact
that Bharat has been envisioned and established as a robust union of states
with federal characteristics. Contrarily, US federalism emanates from the
constituent States, which came together to form the Centre. Indeed, nowhere in
the Constitution of India is the word “federal” used except to refer to
“Federal Courts”, which were constituted under the Government of India Act,
1935. Use of the word “federal” would have perhaps diminished the import of the
unitary features of India, the “Union of States”. Thus, the Hon’ble Supreme
Court has variously described our Constitution as: “more unitary than federal”, “[having]
strong unitary features” and so on in its judgments. The Sarkaria Commission
observation that our Constitution “…has
federal features…not…in classical sense” too reflects the consonance,
consistency of views. Dr. Ambedkar clarified the rationale during the
Constituent Assembly debates as follows:
“India…, the Federation was not the result of
an agreement by the States to join in a Federation…. The Federation is a Union
because it is indestructible. Though the country and the people may be divided
into different States for convenience of administration the country is one
integral whole, its people a single people living under a single imperium derived from a single source. The
Americans had to wage a civil war to establish that the States have no right of
secession and that their Federation was indestructible. The Drafting Committee
thought that it was better to make it clear at the outset….”
National Unity and Integrity under the Constitution
The
third theme is that India was envisaged
as a unified, cohesive nation endued with a strong Centre. This would gather the power of the people at
the centre, that is, the Union to create a unified country, rather than a group
of fragmented segments claiming individual sovereignty. Thus, the country remains de jure unitary. The Constitution endows a majority of the powers on the Centre,
which is strong vis-à-vis the units, i.e. constituent States. This arrangement
was necessary
to foster the feeling of integration in the country and effective administration.
He was convinced that only a strong centre could ensure that regional
differences do not dominate operating political discourse or structures. Furthermore,
invested with residuary powers, the
Centre has grown to overshadow and eclipse the State Governments over time. The
strong centre not only acts as a strong centripetal force that binds the
country together, but also introduces uniformity and ease of
administration. The Union Government also has the power, freedom and
authority to interfere in the affairs of a State whenever it is expedient in
the interests of the nation. The constitutional construct becomes unitary in
such scenarios.
Unity
of the nation could not be compromised due to regional diversity or political
divergences. Dr. Ambedkar overcame two weaknesses of stereotypical federalism,
namely, “arduous rigidity” in the
Centre-State division of powers and “acute
legalism” that requires frequent judicial intervention for interpreting
provisions and determining constitutionality of actions. These weaknesses are
endemic to any federal system, which adopts dual polity and loose coupling of
Union-State. He inculcated federal characteristics in our Constitution through
a long
list of concurrent subjects, which helps achieve “higher degree of flexibility”
and “fewer transgression of powers” in Centre-State relations.
The
Indian constitution, though embracing
federalism limitedly, achieves uniformity in “basic matters that are vital for
maintaining unity.” Explaining this point in the Constituent Assembly, Dr.
Ambedkar said that:
“A dual judiciary, a duality of legal codes
and a duality of civil services…are the logical consequences of a dual
polity…inherent in a federation. The Indian Federation, though a dual polity,
has no dual judiciary at all. The High Courts and the Supreme Court form one
single integrated judiciary having jurisdiction and providing remedies in all
cases… This is done to eliminate all diversity in all remedial procedure.”
Dr. Ambedkar
achieved uniformity and unity of the Indian federation through commonality of
basic laws, especially civil, corporate and criminal statutes (such as penal
code, property laws, law of evidence, etc.), be they substantive or procedural
laws. These subjects are either placed in the Union list or in the Concurrent
List in order to preserve unity without impeding or impairing federalism.
Besides, the
Indian Constitution provides for dual
service. Yet, it reserves certain strategic posts in its administrative
set-up for the civil services cadre at the Union. Again, without depriving or
disrupting the right of States to form their own civil services and
administrative machinery, a pan-India recruitment exists for appointment of
bureaucrats with uniform scale of pay and inter-state transferability within
the Union. Thus, Dr. Ambedkar created multiple institutions which ensure that the nation
remains strong and unified through these three crucial provisions,
namely, single, seamless judiciary, common civil services for manning important
posts, and, uniformity-in fundamental substantive and procedural laws
encompassing civil and criminal matters.
Provisions in the Jammu-Kashmir Constitution
Eventually, the
Constitution of India came into force on 26th January, 1950. Under
the “temporary provisions of Article 370” in the Constitution of India, elections
in the State were held in 1951 for the formation of the Constituent Assembly of
Jammu-Kashmir. The Assembly, invested with the power to draft the Constitution
for the State within the constitutional framework of India, began its work on 5th
November, 1951. After an impassioned address by Bakshi Ghulam Mohammad on 15th
February, 1954, the members of the Constituent
Assembly of Jammu-Kashmir passed a unanimous resolution ratifying the irrevocable
accession of the State with the Union of India by adopting the “Report of
the Drafting Committee”.
After about
five years of exhaustive debates and discussions, the Constitution of Jammu-Kashmir
was adopted and it come into force fully on 26th January, 1957. The Constitution
of Jammu-Kashmir categorically declares in Sections 3 and 5 as follows:
“3. Relationship
of the State with the Union of India.─ The State of Jammu and Kashmir is
and shall be an integral part of the Union of India.
…
5. Extent
of Executive and Legislative Power of the State.─ The executive and
legislative power of the State extends to all matters except those with respect
to which Parliament has power to make laws for the State under…the Constitution
of India.”
On
top, Section 147 affirms that any provision of the Constitution of
Jammu-Kashmir except Sections 3, 5 and 147 may be amended. From the foregoing,
it is amply clear that the State of Jammu-Kashmir merged their identity with
the Union of India. In short, the
integration with India of Jammu-Kashmir is irreversible. Hence, it is
subject to the “seat of sovereignty” vested in the People of India as a
composite group and not people belonging to any one narrow State, group, class
or segment.
There is a
tendency in some quarters to make a case for partial sovereignty, by
misconstruing the words: “We, the people
of Jammu & Kashmir…” in the Preamble of the Constitution of that State.
It behooves the protagonists of this view to keep in mind not only that the
phrase is a replica of the language in the Preamble of the Indian Constitution,
but also that the people of Jammu-Kashmir, as an identifiable group, are not
historically extraneous to or ethnically incongruous with the people of India.
Neither can the Preamble be interpreted in isolation of the operative parts of
any Constitution. When the representatives of the erstwhile princely state partook
in the deliberations of the Constituent Assembly of India and adopted the Constitution
of India on November 26, 1949, Jammu-Kashmir became an integral part of Indian
territories and a State subject to its jurisdiction. It was added to the First
Schedule of the Constitution of India as a “Part-B” State along with other
princely states such as Mysore, Hyderabad, etc. Thus, the identity and destiny of Jammu-Kashmir were merged into that of India,
a nation of immense diversity, yet, created with unity of purpose, fraternity
of people and harmony of values.
Concluding Remarks
The State of Jammu-Kashmir deviates from the
vision of Dr. B.R. Ambedkar. It transgresses several wise and
well-founded principles of our Constitution Makers. The aberrations extend
to denying original jurisdiction of the Supreme Court. Duality of domestic laws
in that State has created problems too. A cursory scrutiny shows that many
substantive and procedural laws of India are invalid there. This has
unfortunately led to the curtailment of
minority rights (e.g., lack of reservation for other backward castes, etc.);
discrimination against women (e.g.,
property and inheritance rights, inapplicability of Section 304-B of IPC on
presumption of dowry deaths, etc.); and, derogation
of fundamental rights (e.g., right to education, inapplicability of
Articles 32 and 136 of the Constitution of India, etc.).
Dr. Ambedkar
was a visionary, who realised that unity
and uniformity should be the pillars of the Constitution. The essence of
the concept of Bharat, as enshrined in
the Constitution, is equality and equal treatment of all persons and
constituent States, regardless of region, class or segment. He was aware
that any special treatment of even one former princely state would create
insurmountable challenges for the supremacy of the Constitution of India.
Despite not
having solid legal, political or historical grounds, there are many discordant voices
demanding separate constitutional identity in the State of Jammu-Kashmir because
of the failure to respect Dr. Ambedkar’s vision for India and its uniform
application throughout India. The misguided political activists, Kashmiri separatists,
Pakistani sympathisers and their ilk, within Jammu-Kashmir and without, are jeopardizing
the long-term prosperity of the state and its people.
Thus, the
only long-term, sustainable solution for all the social, economic and political
woes of Jammu-Kashmir is the
implementation of the vision of Dr. Ambedkar in letter and spirit.
The
abrogation of Article 370 would be a good beginning!
