How Maulana Hasrat Mohani summed up the first ten days of hearings In Re Article 370

The Solicitor General's invocation of Hasrat Mohani's question on Article 370 in the Constituent Assembly reveals a calculated use of poetic licence. Delving into the nuanced context behind Mohani's query reveals that its essence was not focused on Jammu and Kashmir's autonomy, but rather on the broader issue of why other states were denied similar autonomy.

—

ON Day 10 of the hearings In Re Article 370, the Solicitor General of India Tushar Mehta made an interesting reference to Maulana Hasrat Mohani.

It was a day when the respondents commenced their arguments after the Constitution Bench led by the Chief Justice of India (CJI) Dr D.Y. Chandrachud and also comprising the four senior-most Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant had heard petitioners and intervenors over nine days.

At a certain point, Mehta had this to say about Mohani: "[He] was an eminent Urdu lyricist of his time. All of us have heard the song 'Chupke chupke raat din aasoun bahana yaad hai'. It was written by Maulana Hasrat. He also wrote several good ghazals and nazams."

Mohani, whose real name was Syed Fazl-ul-Hasan, was a poet and lyricist, no doubt, as certified by the solicitor. But he was much, much more.

He was, at different points in time, of course, also a founder of the Communist Party of India, a member of the Muslim League and Jamiat-ul Ulema-i-Hind, and an opponent of separate electorate.

Pertinently, he was a member of the Constituent Assembly of India.

Upon being goaded to sing the song, famously sung by Pakistani ghazal maestro Ghulam Ali, Mehta smiled and said, "I am not going to do that. I know my limitations. I will spare all of you."

Mehta had brought up Mohani's name in the context of a speech by N. Gopalaswami Ayyangar, who was the chief drafter of Article 370 of the Indian Constitution. 

Ayyangar had given the speech in the Constituent Assembly of India on October 17, 1949.

Constituent Assembly debates, October 17, 1949

In the speech, Ayyangar had stated, "In the case of practically all States other than the State of Jammu and Kashmir, their constitutions also have been embodied in the Constitution for the whole of India. All those other States have agreed to integrate themselves in that way and accept the Constitution provided."

At this point, Mohani had interjected, "Why this discrimination, please?"

Today, Mehta described it as a very important question, in a bid to show that J&K could not have special 'privileges' not granted to other Princely States that had merged with India.

He went on to quote a portion of Ayyangar's response: "The discrimination is due to the special conditions of Kashmir. That particular State is not yet ripe for this kind of integration. 

"It is the hope of everybody here that in due course even Jammu and Kashmir will become ripe for the same sort of integration as has taken place in the case of other States. (Cheers) At present it is not possible to achieve that integration. There are various reasons why this is not possible now."

Also read: Article 370, a curtain-raiser: Factum valet or redemption of federalism? Supreme Court to decide

He did not read the reply in its entirety because portions of it had been read by at least three counsels (senior advocates Dushyant Dave, Dinesh Dwivedi and Menaka Guruswamy) for the petitioners, including the famous portion: "[T]he government of India have committed themselves to the people of Kashmir in certain respects. 

"They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it.

"We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. 

"We have also agreed that the will of the people, through the instrument of a constituent assembly, will determine the constitution of the State as well as the sphere of Union jurisdiction over the State."

Mehta was obviously not going to quote this part, for reasons of repetition as well as adverse argument.

Mehta also tactfully forgot to mention Mohani's response to Ayyangar's reply, "Sir, I want to make it clear at the very outset that I am neither opposed to all these concessions being granted to my friend Sheikh Abdullah, nor am I opposed to the acceptance of the maharaja as the ruler of Kashmir. 

"And if the maharaja of Kashmir gets further powers and concessions I will be very glad. But what I object to is this. Why do you make this discrimination about this ruler? Mr Ayyangar has himself admitted here that the administration of Kashmir State is not on a very good basis—"

At this point Ayyangar had interjected that he never made such a statement.

Mohani had continued, "That it [J&K] will assume independence afterwards. But may I ask a question? When you make all these concessions for Kashmir I most strongly object to your arbitrary act of compelling the Baroda State to be merged in Bombay.

"The administration of Baroda State is better than the administration of many other Indian provinces. It is scandalous that you should compel the Maharaja of Baroda to have his raj merged in Bombay and himself pensioned off.

"Some people say that he himself voluntarily accepted this merger. I know it is an open secret that he was brought from England and compelled against his will."

India's first President Dr Rajendra Prasad, who was chairing the debate, had told Mohani that the assembly was not concerned with the maharaja of Baroda at that point.

Mohani, though, had finished his submissions thus: "Well, I would not go into any detail. But I say that I object to this sort of thing. If you grant these concessions to the maharaja of Kashmir you should also withdraw your decision about the merger of Baroda into Bombay and allow all these concessions and many more concessions to the Baroda ruler also."

Also read: De-operationalisation of Article 370 faces steep constitutional barriers

Thus, it can be argued that Mehta was taking poetic licence in summoning Mohani's question on discrimination vis-à-vis Article 370.

Mohani's question is more in support of the arguments made by the counsels for some of the petitioners, notably senior advocates Rajeev Dhavan and Nitya Ramakrishnan, both of whom have argued that autonomy, decentralisation and sharing of sovereignty by various tiers of the government is the logical rule in democracies and good for the health of a republic.

In other words, the question Mohani posed on October 17, 1949 was not, 'Why does J&K get more freedom?' but 'Why can't others have the same freedom as J&K?' 

Postscript

If we read the Mohani poem till the end, we find that it contains gems such as:

Jaan kar sota tujhe vo qasd-e-paa-bosee mira

Aur tera thukra ke sar vo muskurana yaad hai

(Thinking you would be asleep, my attempt to kiss your feet

And your kicking me away with a smile, I remember)

Sheikh Mohammed Abdullah, to whom Mohani refers in the Constituent Assembly debates of October 17, 1949, is berated in Kashmir for having delivered J&K to India on a platter, for certain personal concessions given to him by Jawaharlal Nehru.

Abdullah had the 'concessions withdrawn' in 1953 when he was unceremoniously removed from the post of Prime Minister of J&K and jailed for eleven years in the infamous Kashmir Conspiracy case.  

Meethe meethe chhedh kar baaten nirali pyaar ki

Zikr dushman ka vo baatoun mein udana yaad hai

(After starting off with the sweet nothings of love

Slipping in the mention of your enemy, I remember)

Detailing how Pakistan had taken away self-governance in Gilgit–Baltistan a month before India decided to do the same for the part of J&K under its administration, senior advocate Gopal Sankarnarayanan argued on Day 9 of the hearings, "I ask myself, isn't India different? Aren't we a democratic country run by a Constitution?"

And finally,

Ba-vajood-e-idda-e-ittiqa Hasrat mujhe

Aaj tak ahd-e-havas ka woh fasana yaad hai

(Even after I have decided to give up everything,

The promises of everything you made, I remember)