A close scrutiny of the proceedings of the Indian Constituent Assembly reveals that the issues concerning Jammu and Kashmir were discussed twice – first on May 27, 1949 and finally on October 17, 1949, when Article 306-A (Article 370) was adopted. It also shows that the focus on this State on May 27 was far more sharp and revealing than on October 17, despite the fact that the issue under discussion was highly sensitive and controversial and that the subjects discussed were two, and not just one.

Article 370 was sensitive in the sense that it was designed to give Jammu and Kashmir the right to have its own constitution and a flag other than the national flag. This Article was adopted in no time, despite the fact that a Muslim member of the Constituent Assembly Maulana Hasrat Mohani had warned that the grant of special status to Kashmir (on the score of religion) would enable it “assume independence afterwards” (Constituent Assembly Debates, Book No 5, Vol. Nos. X-XII, 6 Oct 1949 to 24 Jan 1950, reprinted by Lok Sabha Secretariat, New Delhi, Second Edition, 1989, p. 428).

It would be desirable to ignore what transpired during the rather brief and virtually smooth discussion on Article 370 as the matter is well-known. We should, instead, reflect on the less-known, but very relevant discussion of May 27, which kept the Constituent Assembly engrossed in squabbles and tortuous discussions for hours. Such an exercise is imperative to understand the reasons behind the 62-year-old complaint of the people of Jammu and Ladakh that “they have no place whatever in the country’s polity” and that “it is New Delhi which is responsible for their socio-cultural and politico-economic degeneration and under-development”.

In October 1947, when Jammu and Kashmir acceded to the Indian Dominion, it was hoped that the Congress Government at the Centre will recognize the natural right of the people of the State to return representatives of their choice to the Indian Constituent Assembly. The hope stemmed from the June 17-18, 1934 Congress Working Committee resolution, as well as the April 1936 resolution adopted by the Congress at its Lucknow session.

The 1934 resolution explicitly informed the British Government that “the constitution must be framed by a Constituent Assembly elected on an adult franchise or a franchise which approximated to it as nearly as possible”. As for the 1936 resolution adopted at Lucknow, it rejected the Indian Councils Act of 1935 as “a charter of bondage” and declared that no constitution “imposed by an outside authority and no constitution which curtails the sovereignty of the people can be accepted”.

The belief of the people of the State that they would have a real say in the matter was further strengthened in 1946 when the Congress urged the Cabinet Mission to permit all male and female adults to elect the Indian Constituent Assembly and to accept the Muslim League’s sectarian demand which sought election on the basis of a separate register (suggestion not accepted).

Paradoxically, the Congress Government did not come up to the expectations of the people of Jammu and Kashmir. The people of J&K could not send representatives of their own choice to the Constituent Assembly. The Congress-dominated Constituent Assembly did not at all involve the people of the state in the process of Indian Constitution-making. Nor did it follow those election rules which the 1946 Cabinet Mission Plan had laid down for the Princely States. On the contrary, it vouched for a formula which was nothing but a negation of what it had stood for so far. It only pleased one person, Sheikh Abdullah, and his political formation, the National Conference.

How else would one interpret the adoption on May 27, 1949 of the motion moved by the Minister of Kashmir Affairs, Gopalaswami Ayyangar, and the speech he made while introducing it? The motion read: “Notwithstanding anything contained in paragraph 4 of the Constituent Assembly Rules all the seats in the Assembly allotted to the State of Kashmir may be filled by nomination and the representatives of the State to be chosen to fill such seats may be nominated by the ruler of Kashmir on the advice of his Prime Minister”.

Ayyangar’s speech went like this: “we have to choose a method by which we could get representatives into this Assembly. We are today in a position to bring to this House four persons who could be said to be fairly representative of the population of Kashmir. The point that I wish to urge is that, while two of the representatives would in any case under the present rules be persons who could be nominated by ruler, we are suggesting that all the four persons should be nominated by the ruler on the advice of his Prime Minister. The Prime Minister happens to represent the largest political party in the State… Apart from that, we have got to remember that the Prime Minister and his government (NC regime) are not based upon the Jammu and Kashmir Praja Sabha (Legislative Assembly) but based rather upon the fact that they represent the largest political party. Therefore, it is only appropriate that the head of this party, who is also the Prime Minister, should have the privilege of advising the ruler as to who would be proper representatives of Kashmir in the Constituent Assembly…”

It may be pointed out that this motion generated a lot of heat in the Constituent Assembly which debated upon this issue for hours as objection after objection was raised against the suggested formula. Members such as Pandit Lakshmi Kanta Maitra (West Bengal), HV Kamath (CP and Berar) and KT Shah (Bihar) vehemently opposed the official motion on five counts.

First, it provided for a mechanism which was not in conformity with “such rules as contained in Rule 4 of the Constituent Assembly Rules”. According to Rule 4, the seats allotted to the Princely States had to be filled up not less than half by the elected members of the legislature of the States concerned and the remainder to be nominated by the ruler himself.

Second, it made an unjust and invidious distinction between J&K and other Princely States.

Third, it was designed to empower one individual, Sheikh Abdullah, to take a decision on who should or should not represent the State in the Constituent Assembly, as also the future politico-constitutional ties between the State and New Delhi.

Fourth, it showed general distrust of the people and the duly-constituted Praja Sabha. The motion was undoubtedly designed to render the people and their elected Assembly ineffective.

Finally, for its potential of harming the Indian interest in Kashmir and giving a cause to the forces inimical to the country to challenge its stand that the people of the state were solidly behind it.

Shah was severe in his criticism of the motion; he urged the Constituent Assembly to repudiate it outright. In addition, he fervently solicited the support of the elected Praja Sabha. Justifying his suggestion, Shah said: “Had the situation been in the State as normal and peaceful as in other cases, I would have certainly followed the same precedent, and required that at least part of the representatives should be representatives of the people chosen by their representatives in a proper form. But as the situation is there today, with all the complications that have arisen, all the representatives of the people must be elected…”

“I am not asking too much when I say that we shall not be departing from democratic principles or idea of justice or prudence or wisdom in this matter if we say that the people of Kashmir, and the people of Kashmir alone, shall elect all the representatives to this House. If this party, the National Conference, claims to represent the entire or at least a large majority of the people of Kashmir, then there is no reason to fear that they cannot send representatives according to their wishes. They need not therefore shirk the suggestion I am making…”

Shah had two basic arguments. One, that Sheikh Abdullah and his political formation did not represent the general will. Two, that the suggestion of Ayyangar, if accepted, might harm the country’s vital interests.

KT Shah’s elaborated his first point that Sheikh Abdullah and his political formation did not represent the general will of the Kashmiri people: “I am constrained to point out that the developments in the history of Jammu and Kashmir in three and half years should not be overlooked. You must not overlook the agitation that was started in February 1946, whereby a responsible party or the leader of that responsible party had started a campaign of ‘quit Kashmir’ and in consequence thereof events developed and created difficulties that have since ensued. I do not like the House to be a party to anything that might look as if it was a surrender to one man’s wishes, that nothing can be done until the Maharaja is removed or complete power is handed over to him (the Sheikh had told Prime Minister Nehru that he would not be in a position to run the administration effectively until Maharaja Hari Singh was removed from his position). Whether or not he holds the complete confidence of all the people has yet to be proved. I am aware he may have a large following; but at the same time, if you want proof beyond the possibility of doubt, there is no reason why you should not send invitation for an election even under the limited franchise that is prevailing. If you have adult franchise that would be better. But even under the limited franchise of 1946, if you hold an election, you will get the true representatives of the people”.

As for the other issue, Shah opined: “You must also not forget that the events that have happened have invested the other countries (United States and United Kingdom) and the sister Dominion (Pakistan) and those outside with interest in the matter. That being so they will not take any decision unilaterally made by us without demur. If you want to have peace restored, if you want to live in peace with your neighbour, you should not give needless occasion for them to say that here you are purchasing a design and committing an act and taking steps whereby your own declarations, and what is more, whatever interests the others (the people of Jammu and Ladakh) may have are being jeopardized. If that is going to be a slur on the good name of this country, and its claim to stand always for the people or for those who are oppressed, then I think that it is not too much to demand that the representatives in this case should be wholly elected, and should be the true reflex of the people…”

It is important to note that all of Prof. Shah’s pleas, coupled with an unambiguous warning regarding the grave evils that would follow on the introduction of the formula as suggested by the official motion, were turned down by Ayyangar and Prime Minister Nehru. Both defended the motion which was designed to undermine the importance of the people, the Praja Sabha, and the State ruler. And, all this, despite the fact that both of them had candidly acknowledged that the process they had suggested for the State was “not ideal”.

The Prime Minister said: “It amazed me to hear Shah propose that the so-called Praja Sabha of Kashmir should send representatives to this House. He should know that there is nothing more bogus than the Praja Sabha… He ought to know that the whole circumstances under which the last elections were held in 1946-1947 were fantastic and farcical. He ought to know that it was boycotted by all decent people… And the type of people who got in the Praja Sabha was the type who had opposed the freedom movement throughout, who had done every injury possible to the idea of freedom of Kashmir till then…”

“…That is the kind of body referred to; it is the bogus body, it is really no body at all; it is the disembodied spirit… I admit that it is not desirable for any member of this House to come by nomination or be selected by some narrow process. Though the process suggested for Kashmir is not ideal, yet I do think that it is the better process… It is the process where you get a popular government with representative of the popular party at the head of it recommending to the ruler that certain names should go. Even from the view of democracy, that is not an incorrect process. It is hundred per cent correct.”

What was most surprising was the attitude of other members of the Constituent Assembly. All (or nearly all) of them either sided with Ayyangar and Jawaharlal Nehru or adopted an indifferent attitude to the otherwise heated debate on a subject of far reaching importance. As a result, the Ayyangar formula was adopted. The immediate fall-out of this decision was the entry into the Constituent Assembly of Sheikh Abdullah and his nominees, Mirza Afzal Beg, Maulana Masoodi and Moti Ram Baigra.

Thus commenced an era in which people’s democracy became the first casualty. One may or may not agree, but it is a fact that all the elections, with few exceptions, have been rigged by the Valley’s ruling class, with the Election Commission of India taking no cognizance. If one really wishes to determine the extent of rigging, one has only to look at the statistics relating to the 1951 elections to the Jammu and Kashmir Constituent-cum-Legislative Assembly, where 73 of 75 National Conference candidates were returned to the House unopposed.

This could happen only because the state administration rejected wholesale the nomination papers of all non-National Conference candidates, who also wanted to contest elections to this supreme body, which was not only to frame a constitution for the State but also to legislate on matters, politico-administrative and socio-cultural. The details on other polls reveal the same thing.