start amending the Constitution so as to do away with all the mischief done by this Congress Government, and certain new fundamental rights will be added. The first of them will be that all Hindu women will have the wonderful and glorious right of burning themselves on the funeral pyres of their husbands. The second fundamental right would be that the cow will be declared a divine being, . . . and all Indians, including Muslims, Christians and so on will be compelled to worship the cow.28
The communists, for their part, thought the new laws were not radical enough. In the Lok Sabha, B. C. Das termed them ‘a mild, moderate attempt at social reform with all the hesitancy and timidity characteristic of all social measures sponsored by this Government’. Still, those who opposed this ‘moderate measure’ had ‘seventeenth-century minds’. In the Rajya Sabha, Bhupesh Gupta noted the delay in introducing the legislation owing to the fact that ‘the Congress Party . . . functions on many occasions like a Rip Van Winkle’.29
Finally, one must take account of those Muslim members who were effusive in their thanks to government. One, speaking in Hindustani, praised it for keeping their laws intact and not allowing the slightest change in it. Another thanked the government ‘for showing their great consideration to the views and the feelings of the Muslim community, and for having exempted them from the operations of this [Marriage] Bill, because there is the personal law for them, based on, and part of, their religion, and they hold religion as the most sacred and valuable thing in their life’.30
V
After a bruising battle extending over nearly ten years, B. R. Ambedkar’s Hindu Code Bill was passed into law; not, as he had hoped, in one fell swoop, but in several instalments: the Hindu Marriage Act of 1955 and the Hindu Succession, Minority and Guardianship, and Adoptions and Maintenance Acts of 1956.
These acts were piloted through Parliament by the new law minister, H. V. Pataskar. He lacked both the stature of his predecessor and his scholarship. Once, when he suggested that the Hindu sacramental marriage permitted divorce, N. C. Chatterjee remarked that there was no basis for that statement, adding: ‘If Shri Pataskar had sat for a Hindu Law examination in any University he would have been ploughed and he would have got zero.’31
This might have been accurate, but was anyway irrelevant. For, as one dissenter recognized, the new bills constituted a ‘direct attack on the Hindu shastras and Hinducustoms’.32 The right of a woman to choose her partner or to inherit property were ‘un-Hindu’; but not undemocratic, since the men had those rights all along. As Pataskar observed, the new laws were based on the constitutional recognition of ‘the dignity of person, irrespective of any distinction of sex’.33
Another member of the Congress Party put it more eloquently. Women must have the right to choose (and discard) their husbands, he said, because ‘we [Indians] were fighting for freedom. After liberating our country, our motherland, it is our responsibility to liberate our mothers, our sisters, and our wives. That will be the greatest culmination of the freedom that we have attained.’34
Towards that end the new laws were indeed a notable contribution. Sixty million Hindu women came under its purview. But the changes were significant in moral as well as numerical terms. As a leading American expert on Indian law has written, this was a ‘wholesale and drastic reform’ which ‘entirely supplants the shastra as the source of Hindu law’. A leading British scholar of the subject goes further: ‘For width of scope and boldness of innovation’, he says, the series of acts considered here ‘can be compared only with the Code Napoléon.’35
The radical changes in the Hindu law pertaining to marriage and property were principally the work of two men: Jawaharlal Nehru and B. R. Ambedkar. Sadly, in the last, crucial stages of the struggle Ambedkar was a bystander. Having failed to win his seat in the direct elections to Parliament in 1952, he then entered the Upper House. There he observed, silent, as the bills were discussed and passed between 1954 and 1956.36 He was already a very sick man, with chronic diabetes and complications thereof, and in December 1956 he passed away. His sometime colleague Jawaharlal Nehru spoke in tribute in Parliament. Ambedkar, said the prime minister, would be remembered above all ‘as a symbol of the revolt against all the oppressive features of Hindu society’. But he ‘will be remembered also for the great interest he took and the trouble he took over the question of Hindu law reform. I am happy that he saw that reform in a very large measure carried out, perhaps not in the form of that monumental tome that he had himself drafted, but in separate bits.’37
This was a generous tribute, especially when we consider the bitterness that lay behind Ambedkar’s resignation in 1951. Then, Ambedkar thought that Nehru was too weak to fight the opposition within and outside his party. From his point of view the prime minister was going too slowly, but, of course, from the point of view of the orthodox Hindu he was going too fast. In 1949 and 1950, when the bill was first introduced, Nehru was not even in effective control of the Congress. It was only after Vallabhbhai Patel’s death that he really took charge, overcoming the conservatives in the Congress and leading his party to a convincing victory in the general election. With the party, and country, now behind him, he was prepared to introduce, and steer through, the legislation once proposed by Ambedkar.38
Nehru was determined to effect changes in the laws of his fellow Hindus, yet prepared to wait before dealing likewise with the Muslims. The aftermath of Partition had left the Muslims who remained in India vulnerable and confused. At this stage, to tamper with what they considered hallowed tradition – the word of Allah himself – would make them even less secure. Thus, when he was asked in Parliament why he had not brought in a uniform civil code immediately, Nehru answered that, while such a code had his ‘extreme sympathy’, he did not think that ‘at the present moment the time is ripe in India for me to try to push it through. I want to prepare the ground for it and this kind of thing is one method of preparing the ground.’39
Others viewed this caution more cynically. As Dr Shyama Prasad Mookerjee pointed out in the provisional Parliament, ‘it is nobody’s case that monogamy is good for Hindus alone or for Buddhists alone or for Sikhs alone’. Why not then have a separate bill prescribing monogamy for all citizens? Having asked the question, Dr Mookerjee supplied this answer: ‘I am not going to tread on this question because I know the weaknesses of the promoters of the bill. They dare not touch the Muslim minority. There will be so much opposition coming from throughout India that government will not dare to proceed with it. But of course you can proceed with the Hindu community in any way you like and whatever the consequences may be.’
At this point C. Rajagopalachari interjected: ‘Because we are the community’.40 ‘We’ were the Congress, particularly its reformist wing, represented by Nehru and rather ably by Rajagopalachari as well. One can appreciate their hesitancy to take on people of faiths other than their own. For it had taken them the better part of ten years to ‘proceed with the Hindu community in any way they liked; that is in away that would help bring their personal laws somewhat in line with modern notions of gender justice.41
12
* * *
SECURING KASHMIR
Do we believe in a national state which includes people of all religions and shades of opinion and is essentially secular. . ., or do we believe in the religious, theocratic conception of a state which considers people of other faiths as something beyond the pale? This is an odd question to ask, for the idea of a religious or theocratic state was given up by the world some centuries ago and has no place in the mind of the modern man. And yet the question has to be put in India today, for many of us have tried to jump back to a past age.
JAWAHARLAL NEHRU
I
THE REFORM OF PERSONAL laws was one test of Indian secularism. Another and greater test was with regard to the future of Kashmir. Could a Muslim majority state exist, without undue fuss or friction, in a Hindu-dominated but ostensibly ‘secular’ India?
As we have seen in Chapt
er 4, by 1949 Sheikh Abdullah was in firm control of the administration of Jammu and Kashmir. But the status of the territory was still under dispute. The United Nations had called for a plebiscite and was trying to get India and Pakistan to meet the conditions for holding it.
In February 1950 the UN Security Council asked both countries to withdraw their armies from the state. As before, both sides stalled. India asked for the Pakistanis to take their troops out first while Pakistan demanded that the National Conference government be removed from office. India had begun to regret taking the matter to the United Nations in the first place. By 1950 it was quite prepared to hold on to its part of the disputed state, and let Pakistan take the hindmost. The Indian Constitution, which came into effect in January 1950, treated Kashmir as part of the Indian Union. However, it guaranteed the state a certain autonomy; thus Article 370 specified that the president would consult the state government with regard to subjects other than defence, foreign affairs, and communications.1
As for Pakistan, politicians there held that their claim needed no certification from a popular vote. In September 1950 a former prime minister insisted that ‘the liberation of Kashmir is a cardinal belief of every Pakistani . . . Pakistan would remain incomplete until the whole of Kashmir has been liberated’. Two weeks later, a serving prime minister observed that ‘for Pakistan, Kashmir is a vital necessity; for India it is an imperialistic adventure’.2
On both sides of the border the governmental positions were echoed and amplified by the press. In the summer of 1950 the British broadcaster Lionel Fielden visited the subcontinent. As a former head of All-India Radio, Fielden had many friends in both India and Pakistan. Visiting them and speaking also to their friends, he found that on either side of the international boundary ‘the visitor is assailed by arguments and harangues to prove that the other country is not only wrong but diabolically wrong, and mischievously to boot’. He observed that ‘the tone of the Indian Press tends to be a little patronizing, sweetly reasonable but nevertheless obstinate, and rather consciously self-righteous’. On the other hand, ‘the tone of the Pakistan Press and Pakistan leaders tends to be resentful, arrogant and sometimes aggressive’. Pakistani hostility was compounded by the fear that powerful forces in India wanted to reconquer or reabsorb their land in a united Akhand Bharat.
Fielden summarized the respective points of view: ‘In clinging to Kashmir, India wants to weaken Partition; in claiming it, Pakistan wants to make Partition safe.’ On the issue of Kashmir both sides were absolutely rigid. Thus, ‘to fight to the last ditch for [Kashmir] is the slogan of all Pakistanis; not to give way on it is rapidly becoming the fixed idea in India.’
Fielden ended his analysis with a warning. In the long run, he pointed out, ‘the most important thing’ about the Kashmir conflict was ‘the expense in armaments in which both countries are getting involved. This means that social services in both countries are crippled, and since both countries, apart from their refugees, have millions of the poorest people in the world, it is easy to see how this can lead to disaster.’3
The United Nations had tried and failed to solve the dispute. Could another ‘third party’ succeed? In January 1951, at a meeting at 10 Downing Street, the Australian Prime Minister Sir Robert Menzies suggested that a plebiscite be held under Commonwealth auspices. The British prime minister, Clement Attlee, appeared to favour the idea, but Nehru said any settlement must have the concurrence of the state government of Sheikh Abdullah. The Pakistani prime minister dismissed that government as ‘puppets appointed by Nehru [whom] he could change any time’. In reply, Nehru noted that ‘the Pakistan press was full of this religious appeal and calls for Jehad. If this was the kind of thing that was going to take place during a plebiscite, then there would be no plebiscite but civil upheaval, not only in Kashmir, but elsewhere in India and Pakistan.’4
II
In 1950, the maps of the government of India claimed the entire state of Jammu and Kashmir as part of its territory. New Delhi’s claim to the whole rested on the fact that in October 1947 Maharaja Hari Singh had signed a document acceding to India. Meanwhile, its claim to the part actually held by it rested on the secularist sentiments of Sheikh Muhammad Abdullah, by now often referred to as simply ‘the Sheikh’.
Abdullah was anti-Pakistan, but was he for India? That was a question to which the man himself would not give a straight answer. His vacillation is captured in a series of frustrated letters written by Nehru to his sister Vijayalakshmi Pandit:
10 May 1950. I am sorry to say that Sheikh Abdullah is behaving in a most irresponsible manner. The most difficult thing in life is what to do with one’s friends.
18 July 1950. Meanwhile, Sheikh Abdullah has been behaving very badly in Kashmir in regard to domestic affairs and he appears to be bent on securing a conflict with us. He has gone to wrong hands there and is being misled.
10 August 1950. Sheikh Abdullah has come round a little and is in a more amenable frame of mind. I wonder how long this will last, because there are too many forces at play in Kashmir, which pull him in different directions.5
The note of scepticism in this last letter was warranted. For very soon Abdullah had once more begun behaving in a ‘most irresponsible manner’; that is to say, had begun thinking of ways to detach Kashmir from India. On 29 September 1950 he met the American ambassador, Loy Henderson. In discussing the future of Kashmir, Abdullah told Henderson that
in his opinion it should be independent; that overwhelming majority of the population desired their independence; that he had reason to believe that some Azad Kashmir leaders desired independence and would be willing to cooperate with leaders of National Conference if there was reasonable chance such cooperation would result in independence. Kashmir people could not understand why UN consistently ignored independence as possible solution for Kashmir. Kashmir people had language and cultural background of their own. The Hindus by custom and tradition widely different from Hindus in India, and the background of Muslims quite different from Muslims in Pakistan. Fact was that population of Kashmir homogeneous in spite of presence of Hindu minority.6
Abdullah went on to ask the ambassador whether the US would support an independent Kashmir. Unfortunately, the published records of the State Department do not reveal the US response. Did the United States ever seriously contemplate propping up Kashmir as a client state, given that its location could be of immense value in the struggle against communism?
We still can’t say, and it seems Abdullah was equally unsure at the time, for he now went back to the Indian government to negotiate with them the terms of Kashmir’s autonomy. The state, it was decided, would have its own constituent assembly, where the terms by which it would associate with India would be finalized. In January 1951 Abdullah wrote to the minister of states that, as he understood it, the Jammu and Kashmir Constituent Assembly would discuss ‘the question of accession of the State, the question of retention or abolition of the Ruler as the Constitutional Head of the State and the question of framing a Constitution for the State including the question of defining the sphere of Union jurisdiction over the State’. He added that the Assembly would ‘take decisions on all issues specified above’, decisions the government of India must treat as ‘binding on all concerned’. This suggested that even Kashmir’s accession to India was not final. As an alarmed minister of states noted in the margins of the letter, the Sheikh’s interpretation was ‘perhaps going beyond what we said’.7
The Sheikh, as ever, presumed to speak for the state of Jammu and Kashmir as a whole. In truth, while he was still revered in the Valley, he was becoming quite unpopular among the Hindu of the Jammu region, who were keen to merge their part of the state with the Indian Union as quickly as possible. In 1949 a Praja Parishad (Peoples’ Party) was formed to represent the interests of the Jammu Hindus. It was led by a seventy-year-old veteran, Prem Nath Dogra. Characteristically, Sheikh Abdullah dismissed the opposition in Jammu as a bunch of ‘reactionaries’.8
In October 1951 elections were held to the Kashmir Constituent Assembly. The Praja Parishad had decided to contest but, early on, the nomination papers of several of their candidates were found to be invalid. In protest they chose to boycott the election. All seventy-five seats were won by Abdullah’s National Conference. All but three of their candidates were returned unopposed.9
Sheikh Abdullah’s opening speech in the Constituent Assembly ran for a full ninety minutes. Reading from a printed English text, the Sheikh discussed, one by one, the options before the people of Kashmir. The first was to join Pakistan, that ‘landlord-ridden’ and ‘feudal’ theocracy. The second was to join India, with whom the state had a ‘kinship of ideals’ and whose government had ‘never tried to interfere in our internal autonomy’. Admittedly, ‘certain tendencies have been asserting themselves in India which may in the future convert it into a religious State wherein the interests of the Muslims will be jeopardized’. On the other hand, ‘the continued accession of Kashmir to India’ would promote harmony between Hindus and Muslims, and marginalize the communalists. ‘Gandhiji was not wrong’, argued the Sheikh, ‘when he uttered words before his death which [I] paraphrase: “I lift up mine eyes unto the hills, from whence cometh my help”.’
Abdullah came, finally, to ‘the alternative of making ourselves an Eastern Switzerland, of keeping aloof from both States, but having friendly relations with them’. This was an attractive option, but it did not seem practical. How would a small, landlocked country safeguard its sovereignty? As the Sheikh reminded his audience, Kashmir had once been ‘independent’ of both India and Pakistan; between 15 August and 22 October 1947, when its independence had been destroyed by the tribal invasion. What was the guarantee that a sovereign Kashmir ‘may not be victim of a similar aggression’?10