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Kashmir and the Forgotten History of India’s Princely States

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Kashmir and the Forgotten History of India’s Princely States

As far as the princely states are concerned, the history of independent India is full of inviolable safeguards being broken.

Kashmir and the Forgotten History of India’s Princely States

The last Maharaja of Kashmir, Hari Singh, in 1943.

Credit: Wikimedia Commons

On August 5, 2019, the Modi government of India stripped Jammu and Kashmir of its special status by abrogating Article 370 of the Indian Constitution. While legal scholars bemoaned the constitutional chicanery leading to the repudiation of Article 370, interpreting it as an attack on state rights or Indian federalism more broadly, most of the Indian political parties embraced the move. Today in mainstream Indian policy circles, the change is mostly remembered as an incursion on state rights and a heavy blow to Indian federalism.

To understand what is happening in Kashmir today, we need to understand the conditions in which these tensions emerged. Whatever one wants for Kashmir, or for Indian federalism, people on either side are getting the history wrong.

Kashmir is a standing symbol of India’s miscarriage of democracy under both secular and Hindu nationalists. Talking about the problem of Kashmir as just a problem of federalism is poor history and poor politics. Historically, strident attacks on state rights and desire for a strong central government marked the founding of the Indian nation. The demotion of Kashmir is just one in a series of anti-state rights acts that called post-colonial India into existence. The history of the federalist advocacies of the princely states, and how they were short-changed and dragged into independent India, is comfortably forgotten across the political spectrum and in intellectual, and legal circles. If democracy was really one of the pledges that united India in cooperation with “the nations and people of the world,” then Kashmir should not have acceded to India, nor should it have been kept in India all this time.

Kashmir was a princely state during British rule with a Hindu ruler and at least two-thirds Muslim population. To date, it is the only Muslim majority state in India. Legally speaking, Kashmir’s accession, in October 1947, was no different from the other 550 princely states that joined India and were subsequently erased as geographical entities. All these accessions merely depended on rulers’ consent.

The history of the Instrument of Accession, through which princely states joined India, goes back even further. The Government of India Act 1935, incidentally the longest constitution ever enacted by the British parliament, broke with the existing model of centralized unitary state and provided for an all-India federation with considerable autonomy to the federal units. Section 6 of the act provided that the princely states would join the federation based on the instruments of accession that rulers would execute in their individual right. Not even a witness was required for the rulers to execute these federal compacts.

This colonial legality, of a ruler being the state, was central to the Instrument of Accession, the document that mediated the accession of about 550 princely states into India, and a handful of them to Pakistan, in 1947. The procedure for a princely state joining the Indian union was not meant to be democratic, but autocratic. That is, in 1947, a ruler could unilaterally decide to join either India or Pakistan, or remain independent, without heeding popular sentiment.

The text of the Instrument of Accession was the same for all the states, delineating the separation of powers between states and the center. The main provision stated that the ruler of a state, in exercise of the sovereignty in and over the state, could accede the state subject to the reservations listed on the accession document. Thus, what the accession document envisaged was a central government with enumerated or limited powers, much like federal government in the United States. Whatever subject that was not enumerated in the document, with the exception of defense, foreign affairs, and communications, was to belong to that particular state. These accession documents, though they would be repudiated soon after, contained a promise for establishing federalism in India.

Kashmir, because of its unique geographical and political importance, was given a special status in free India with two main rights. First, federal laws would not apply to the state automatically. Second, the residents of the states had special privileges; this translated into curbs on non-residents either acquiring landed property or securing public employment in the state. These rights, as guaranteed in Article 370 and Article 35A respectively, were annulled by a parliamentary amendment to the constitution in August 2019, leading to the ongoing fracas in the Kashmir Valley.

Lately, federalism has become a talking point, both in the United States and India, whenever the object of the critique is the overreach of the central government. But a striking feature of the debates on Indian federalism today is the lack of engagement with the anti-federal tradition that dominated India, both at the founding and in the decades thereafter. How the secular nationalists’ disdain for the princely states and their rights pre-empted the birth of any robust federation in India is rarely acknowledged. Sussing out federalism from the provisions of the constitution, without regard to the political consensus that led to those provisions in the very first place, is a myopic exercise.

B. R. Ambedkar, the main author of the Indian constitution, declared, as early as 1939, his partiality for a unitary form of government.” The secular nationalists like Jawaharlal Nehru and his chief aide V. K. Krishna Menon, who made the longest speech in the UN history (incidentally on Kashmir), were staunch anti-federalists. They made no secret of their vision of a unitary state, which was modeled on British India, albeit without the British.

The anti-federal feeling was so entrenched among the founders that the constitution of free India did not use the word “federation” anywhere. B. N. Rau, another key author of the constitution, would replace “federation” with “union” in an early draft drawing mainly on the South African precedent. The message was clear: The states were to join India for an eternal union without the right to either inviolability or secession.

The accessions were contracts of sorts, between two territorial and legal entities. That is, between the ruler/the princely state and the crown for the commonwealth of India, which, although independent, would remain in the empire until 1950. Many of the accessions involved cajoling and making promises, and even outright threats. Kashmir’s accession, like many other states, involved a “solemn compact” between the founders of the nation and the state.

But many of these compacts were broken even before the ink on accession documents had dried. The new Indian government, under the able leadership of Jawaharlal Nehru and his deputy, or the Indian Bismarck as he is often called, Sardar Vallabhai Patel, would consider these solemn documents as little more than “scraps of paper.” India’s central government instead hauled the states into mergers with the provinces in the name of “administrative convenience.” For instance, in 1948, the young ruler of the princely state of Pudukkottai in southern India was summoned to Delhi overnight by Patel and bullied into signing the agreement to integrate his state with Madras province, much to the chagrin of his people. The ruler faced widespread protests from his people when he went back home.

A nation founded on the promise of democracy and freedom consolidated itself through undemocratic tactics on the one hand, and by breaking the legal (federal) compacts that they made with the states on the other. As a justification, the princely states were often considered as “feudal,” “medieval,” and “anachronistic,” with no place in a republican India. Hence, their decimation could only have been for the good of democracy and India’s so-called “tryst with destiny.”

Denying democracy to some for the sake of democracy overall is not only disingenuous, but can also set a dangerous precedent. Scholars like Uday Mehta have argued that freedom for the nascent Indian nation was held prisoner to the unity and social upliftment of the people. A political absolutism was essential for ensuring this very unity. But the missing part in this picture is federalism. Why did absolutist power, and not federalism, appeal to the founders for keeping the unity?

Equally dangerous is the argument that accessions were mere artifacts of colonial legality with no place in independent India. The accession of Kashmir, like any other state’s, is valid in law and fact, especially in international fora like the United Nations, because it is a legal accession, albeit autocratically and whimsically executed by its Hindu ruler against the will of 90 percent of his Muslim and non-Hindu subjects. That was the law then, and that is the legality of that accession to this day.

Decades before the abrogation of Kashmir’s special status, in 1971, the Indian parliament struck down another inviolable constitutional guarantee that the founders of the nation had given the rulers of the acceding princely states. By a constitutional amendment, the monthly pension — which was charged to the Consolidated Fund of India, and hence unimpeachable — that the ex-rulers received from the government for relinquishing sovereignty and revenue rights over their states was abolished. Just a year prior, in 1970, the Supreme Court of India had ruled that the said constitutional guarantee could not be tampered with. Nani Palkhivala, one of the most eminent lawyers of his time, and a counsel for the princes, argued that the guarantee for privy purse, as envisaged in the constitution, represented a scared promise to the princes by the founders that had to kept for the sake of the “dignity of the nation.” That was not to be!

As far as the princely states are concerned, the history of independent India is full of inviolable safeguards being broken. While we debate how federalism recently has had its neck knelt on, it is important that we revisit the founding of the nation, and understand what kind of federation was debated and discarded. Who were the federalists and anti-federalists at the time of independence, and who ultimately carried the day?

The opposition to state rights held preponderance, as proved both by Kashmir’s accession in 1947 and its recent demotion to a territory directly governed by the central government. One only has to look at the provisions relating to state governors to see how entrenched anti-federalism was at India’s founding, and how it continues to be so. Even today, governors are used by the central government to dictate terms to the states and even take over control over them. The abolition of the special status of Kashmir itself was enabled by the state governor dismissing an elected government and acting as the government of the state. Governors may be federal functionaries, but what they actually do is to make India more unitary, just as they did in colonial India. A “true federalism” was the “counter-narrative” that India needed at the founding, and that it needs it today all the more.

In 2020, the royals of erstwhile princely states are no more special and no less indigent than many other ordinary Indians. The image of a maharaja (king) and his regalia have long vanished from the political map of India, though he continues to be the mascot of the ailing national airlines, Air India.

What India is witnessing today is a situation wherein the machinery of government and state penetrate every avenue of people’s life and control them. Scholars like Ashis Nandy have rightly diagnosed this problem as statism. While this process has been ongoing since the inauguration of the nation, it has reached unimaginable heights today. Historically, the decimation of the princely states, and the denial of constitutional guarantees given to them, is central to this process of statism, of which the attack on federalism is just one facet.

To debate the demotion of Kashmir as an affront on Indian federalism, without considering this long anti-federalist history of the country, is a partisan reading of history. At the founding political and social expediencies trumped any normative commitment to democracy, freedom, or federalism. As China flexes its muscles in the desolate regions of Galwan Valley, the Kashmir imbroglio is making a comeback in policy, legal, and intellectual circles. As always there is a rich history behind the modern debate, and one that is all too often overlooked — even in India.

Sarath Pillai is a Ph.D. candidate in History at the University of Chicago, focusing on how various groups in South Asia, especially the princely states, imagined federation and regional autonomy in the 1930s and 1940s.