Table of Contents
   Index
   About the Author
   Introduction
   Preface 
   Indian Federalism
   Integration of States
   Article 370
   The Constituent Assembly
   Federal Jurisdiction
   Division of Powers
   State Apart
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Chapter 4: The Constituent Assembly

The National Conference convened a meeting of its General Council on 27Owen Dixon October 1950. The Council was called into session to consider the report of Sir Owen Dixon, the United Nations mediator, appointed to negotiate a settlement on the demilitarization of the State and the induction of the plebiscite administrator into his office. The General Council condemned the Dixon report and characterized it opposed to the objectives for which the people of the State had reposed their faith in the United Nations. The General Council observed that the "Dixon report, while admitting that the armed intervention of Pakistan constitutes a flagrant breach of international law, accords recognition to the aggressor, firstly, as an equal party and then bestows upon him title to possess the fruits of aggression". The Council voiced its strong disapproval of the suggestions made by Sir Dixon to partition the State and declared that the " territorial integrity of the State must remain inviolate and that, in determining their future the unity and the organic homogeneity of the people should not be broken into artificial compartments." By another resolution, the General Council issued a mandate to the "Supreme National Executive", to convene a Constituent Assembly in the State, based upon adult franchise and embracing all constituents of the State to determine the future shape and affiliations of the Jammu and Kashmir State. The resolution stipulated:

The meeting of the General Council of the All Jammu and Kashmir National Conference views with great concern the wrongs of aggression of which the people of the State continue to be victims. The failure in its opinion is due to the Continued concessions given to Pakistan by placing a premium on her in transience.

The indecision and unrealistic procedure adopted so far has condemned the people of the State to a life of agonizing uncertainty. The All Jammu and Kashmir National Conference is gravely concerned and cannot any longer afford to ignore the perpetration of these conditions of doubt and frustration. In the opinion of the General Council, time has come when the initiative must be regained by the people to put an end to this indeterminate state of drift and indecision. The General Council recommends to the Supreme National Executive of the people to take immediate steps for convening a Constituent Assembly based upon adult suffrage and embracing all sections of people and all the constituents of the State for the purpose of determining the future shape and affiliations of the State of Jammu and Kashmir. In this sovereign Assembly embodying the supreme will of the people of the State, we shall give ourselves and our children a constitution worthy of the tradition of our freedom struggle and in accordance with the principles of New Kashmir.

The resolution of the General Council was apparently aimed to extend support to the Government of India which had rejected the proposals, made by Owen Dixon, the United Nations mediator. However, the Conference leaders were motivated by their own interests to seek the convocation of the Constituent Assembly and vest it with powers to determine the final disposition of the State. The Conference leaders did not favor a plebiscite, for they realized far two well that a vote for Pakistan would spell their doom and if the plebiscite fumed in favor of India, their endeavors to organize the State into a separate political identity based on the Muslim majority character of its population would fat! through. Evidently, they aimed to use the Constituent Assembly to extricate themselves from their commitments to a plebiscite and at the same time secure extra-constitutional guarantees for the separate political identity they envisaged for the State. The Conference leaders did not hide their intentions. In its resolution the General Council of the Conference, suddenly proclaimed the Interim Government as the "Supreme National Executive" of the people, calling upon it to convene the Constituent Assembly and end the uncertainty of the State. The Conference leaders sought to liberate the Interim Government of its provisional moorings and establish its pre-eminence over all other political instruments in the State, including those embodied by the Constitution Act of 1939, which governed its function. The Conference leaders sought to vest in the Constituent Assembly, powers which the Constitution of India did not envisage for it and thus impart to it, precedence over the constitutional instruments devised by Article 370 of the Constitution of India. They also attempted to place themselves in between India and Pakistan, in their dispute over the accession of the State and secure the Interim Government a vote on any settlement which the Government of India reached with the Security Council or the Government of Pakistan.

The resolution of the National Conference to Convene the Constituent Assembly was not opposed by the Indian leaders; perhaps they sought to use it to controvert the various pressures which were building upon the Government of India in the Security Council after it had turned down the proposals made by Owen Dixon. However, the inspiration to convene the Constituent Assembly did not come from them. In fact, the resolution caused a lot of concern to the Indian leaders, who lost no time to seek a number of clarifications from the Conference leaders with regard to the exact powers the Conference leaders intended to vest in the Constituent Assembly. The decision to vest powers to determine the future disposition of the State in the Constituent Assembly was formidable and was bound to cast its shadows on the accession of the State to India, which the Indian leaders consistently claimed, had been finally accomplished by the execution of the Instrument of Accession. The Government of India had strongly resisted all attempts to question the accession of the State to India and open fresh options for the future disposition of the State except that the act of the accession was subject to a referendum by which, India was committed to ascertain the wishes of the people of the State after the invasion was ended. This was precisely the ground on which the various Proposals made by Owen Dixon had been rejected by the Government of India.

A long correspondence ensued between the States' Ministry and the Interim Government. The Conference leaders informed the Minister of States, Gopalaswami Ayangar, that the Constituent Assembly would function as a sovereign body, and besides taking a decision on the final disposition of the State, determine the future of the Dogra rule and draw up a constitution for the government of the State. The States' Ministry accepted that the Constituent Assembly would be free to draw up a Constitution for the State, but the decisions taken by the Constituent Assembly would be subject to the accession of the State to India and the commitments which the Government of India had given in this regard. Ayangar conveyed to the Conference leaders that since the Constituent Assembly of the State would draw up the Constitution of the State, it would be necessary to bring about a measure of uniformity in the constitutional provisions which governed the relations between the Union and the State, with the provisions of the Constitution of India which governed the relations between the Union and the other Indian States and the function of their governments. The States' Minister proposed the application of the Constitution of India to the State in regard to citizenship, fundamental rights and related legal guarantees, the principles of state policy, the jurisdiction of the federal judiciary and the powers of the Union Government to deal with emergencies arising out of war and internal disturbance.

The Conference leaders did not approve of the communication of the States Minister. They insisted upon the right of the Constituent Assembly of the State toShaikh Mohd. Abdullah take whatever decision it deemed appropriate, on the final disposition of the State and claimed that both the accession as well as the commitments the Government of India had undertaken, were ultimately subject to the verdict of the people of the State. The Conference leaders reiterated their earlier stand that the Constituent Assembly would draw up a constitution for the government of the State, and incorporate in it the constitutional provision for citizenship, fundamental rights and the related constitutional guarantees, directive principles of state policy and emergencies arising out of threat of war and internal disturbance. The Conference leaders emphasised that the Constituent Assembly of the State alone was empowered to determine, the final disposition of the State. Ayangar was thrown off his feet and he along with Maulana Abdul Kalam Azad and Rajgopalachari hurried to assure the Conference leaders that they had no disagreement with the views, the Conference leaders held. Nehru, was in London where he had gone to attend the conference of the Commonwealth Premiers. He also wrote to Sheikh Mohamad Abdullah and assured him that he did not dispute the right of the people to determine the future shape of the State and its government. "I have no doubt that the will of Kashmiri people must prevail in regard to every maker and it is they who will decide ultimately every question affecting the State."

The resolution of the National Conference evoked a sharp reaction from the Hindu and the other minorities in the State. In the Kashmir province, where the Hindus and the other minorities, did not possess much numerical strength, the reaction was subdued. But in the Jammu province, the Hindus and other minorities voiced strong disapproval of the Conference resolution to seek a vote from the Constituent Assembly on the accession of the State. The Praja Parishad and the Hindu Sahayak Sabha condemned the resolution as destructive of the accession of the State to India The Parishad adopted a strongly worded resolution that the accession of the State to India had been finally and irrevocably accomplished and the convocation of the Constituent Assembly would tantamount to its repudiation. The Praja Parishad alleged that the convocation of the Constituent Assembly in the State, to take a fresh decision on accession, was another step towards the independence of the State. Both He Parishad and the Sahayak Sabha rejected the independence of the State and claimed that they would not permit the dissolution of the accession of the State and its separation from India.

On 30 April 1951, Karan Singh, the Regent of the State, issued a proclamation toKaran Singh order the institution of the Constituent Assembly in the State. The proclamation envisaged the convocation of the Assembly on the basis of universal adult franchise and the secrecy of the ballot. The proclamation of the Regent ordered the State to be divided into electoral districts, for the purposes of election to the Constituent Assembly. The proclamation envisaged the appointment of a Delimitation Committee, which would be vested with the powers to delimit the territorial extent of the electoral districts.

The Constituent Assembly was empowered to make its own rules to govern its procedure and the conduct of its business.

The Delimitation Committee was constituted of five members: a judge of the High Court, Justice M.A. Shahmiri who was also appointed the Chairman of the Committee and four other members of the rank of the Deputy Commissioners of the Revenue Department of the State Government The Praja Parishad demanded representation in the Delimitation Commission, but the demand was not conceded.

For the purpose of delimiting the electoral constituencies, the mitation Committee was instructed to take a population of forty thousand people, as nearly as possible, living in a compact contiguous area with regard to the physical features of the area and its means of communication. The Kashmiri Pursharthi Sabha, which represented the refugees from the occupied territories of the State, demanded the reservation of three seats in the Constituent Assembly for the refugees encamped in Nagrota refugee camp in Jammu. The Sikhs also demanded enhancement of representation in the Constituent Assembly over that, they had in the old State assembly, the Praja Sabha.

The Delimitation Committee took instructions from the Conference leaders. Shahmiri had served the Maharaja more faithfully than many of his officers, but he had shifted his loyalties to the Interim Government, after the change over in the government in 1947. He was appointed the Constitutional Advisor to the Interim Government and was one of the collaborators of the Conference leaders who favored a separate political identity of the State on the basis of its Muslim majority character.

The total number of the members of the Assembly was fixed at one hundred; twenty-five of whom were to represent the people in the occupied territories of the State. The Kashmir province was divided into forty three constituencies, the Jammu province into thirty constituencies and the frontier divisions of Ladakh and Baltistan into two constituencies. No delimitation of electoral constituencies was made in regard to the territories of the State occupied by Pakistan. The Delimitation Committee rejected the demand of the Pursharthi Sabha seeking representation for the displaced persons from the territories of the State under the occupation of Pakistan encamped in various refugee camps in Jammu. The Committee also rejected the representation made by the Sikhs for special weightage in the Assembly.

All State-subjects, who were of twenty one years and more in age and who were not subject to any disqualifications laid down by law, and who were entitled to vote were registered in the electoral rolls of the electoral area provided they resided in the area for not less than one week during the two years preceding 1951. Voters could register themselves in any number of constituencies but they could vote in only one electoral constituency. In case a voter cast his vote in more than one constituency. his votes cast in such constituencies were liable to be declared void.

The preparation of the provisional electoral rolls was commenced on 1 December 1950, end the electoral rolls were published on 4 June 1951. The preparation of the electoral rolls was entrusted to electoral Registrars. Forty-one Revising Registrars were also appointed to hear and decide claims in regard to the registration of the voters.

The rules framed for the election to the Constituent Assembly, provided that a candidate could seek election to the Assembly if he was a first class hereditary State-subject and was of twenty-five years or more in age on 1, August 1951. Candidates could not hold any of lice of profit in the Jammu and Kashmir Government and the Government of India or any local body in the State, except in a cooperative society. People convicted of criminal offences involving a punishment of two years or more and people who had been dismissed from the Government service for corruption were barred from voting unless in both cases, a period of three years or such period as was allowed by the Commissioners had elapsed, since their release or dismissal respectively.

All the Electoral Registrars were appointed from among the Special Tehsildars, who were appointed by the State Government to implement the land reforms. Forty one revising authorities, twenty for the Jammu province, nineteen for the Kashmir province and two for the district of Ladakhs and Baltistan were appointed to receive and decide claims and objections with regard to the provisional rolls of the Constituent Assembly. All the Electoral Registrars and Revising Registrars were the nominees of the National Conference.

In accordance with the election rules, no independent tribunals were provided to settle the disputes arising out of the elections; instead, all such disputes Me to be decided by the Constituent Assembly itself. The rules envisaged warning to the officers of the government against any infringement of the election rules or any interference in the elections. Restrictions were placed on parties and candidates to use communal issues in the elections and incitement of communal feelings and violence were declared punishable offenses. The maximum expenditure a candidate was permitted to incur in the elections, was fixed at three thousand rupees. The election rules envisaged provisions in accordance with which separate polling booths were to be provided for the women voters.

Right from the time, the preparations for the elections to the Constituent Assembly began, the parties and candidates, seeking election to the Assembly in opposition to the official candidates of the National Conference, complained of intimidation and interference. They charged the National Conference of using force and pressure to drive them out of the elections and preventing them from filing their nomination papers. The allegations were largely true and the National Conference cadres, backed up by the State administration, spared no efforts, to scuttle the opposition and push out its candidates from the elections and thus pave the way for a total victory for the National Conference. For the forty-one of the forty-three constituencies in the Kashmir Province, not a single nomination paper was filed by the candidates in the opposition. In the two, remaining constituencies of Habbakadal in the city of Srinagar and of Baramulla Township, nomination papers were filed by Pandit Shiv Narayan Fotedar and Sardar Sant Singh Tegh, an Akali Sikhs leader of the State. However, the two leaders did not remain in the fray for long and both withdrew in protest. Sant Singh Tegh complained of official interference in the elections and alleged that the color of his ballot boxes, was changed in his absence and his voters were prevented from attending his election meetings by unfair and foul means.

In the Jammu province, Praja Parishad nominated candidates for twenty-seven constituencies of the provinces, generally filing nomination papers of more than one candidate for each constituency. Forty-one of the forty-six nominations filed by the Parishad were rejected in twenty-seven constituencies, leaving the Parishad to contest elections in only three constituencies in the province. On 22 September 1951, the Working Committee of the Parishad adopted a resolution condemning the rejection of the nomination papers of the Parishad candidates and gave an ultimatum to the Government to reverse the rejections, failing which the Parishad threatened to boycott the elections. The President of the Praja Parishad Pandit Prem Nath Dogra issued a press statement in Delhi on 6 October 1951 in which he alleged, that:

  • The elections in the two provinces of Jammu and Kashmir were scheduled to be held on different dates to provide the National Conference an advantage over the other parties;
  • The delimitation of the constituencies was undertaken in a manner, which used gerrymandering to turn many Hindu majority constituencies into Muslim majority constituencies;
  • Fortune of the forty-six nomination papers filed by the Praja Parishad candidates were rejected on false and flimsy grounds;
  • Official interference in the elections was widespread and the entire official machinery was geared to help the National Conference.
Prem Nath Dogra met Gopalaswami Ayangar, the Minister of States in the Government of India and urged upon him to take immediate steps) to undo the wrong which the National Conference leaders had done in the elections. He repeated the allegations he had made against the Conference leaders and appealed to the Government of India:
  • To institute an independent judicial enquiry into the rejection of the nomination papers of the Praja Parishad candidates in the twenty-seven constituencies in which the Praja Parishad candidates had filed their nominations;
  • To appoint a Supreme Court Judge to supervise the conduct of the elections in Jammu in order to assure perfect impartiality;
  • To prevent the Government of finials from openly working for the National Conference candidates;
Ayangar could do little to put a stop to what was happening in the State. Instead, the Congress leaders joined the National Conference in its condemnation of the Praja Parishad and blamed the Parishad leaders of inciting communalism in the State and helping the elements, which were inimical to the Indian interests. Perhaps, the Indian Government deliberately overlooked the dangerous parent of the ruthlessness with which the Conference leaders sought to pack the Constituent Assembly with their cadres and supporters. After frantic but vain appeals to the Indian leaders, the Praja Patishad finally decided to boycott the elections. The Parishad leaders sent a cable to Nehru, Gopataswami Ayangar and Maulana Sayeed Masoodi, the General Secretary of the National Conference, informing them of their decision to boycott the elections. Maulana Massoodi refuted the allegations; the Parishad made against the Interim Government, and charged the Parishad leaders of opposing the convocation of the Constituent Assembly. He claimed that the Parishad did not enjoy the support of the people in the State and the Parishad leaders had abandoned the contest because they were unnerved by the sweeping victory the Conference leaders had registered in the province of Kashmir The Parishad extended its support to the two independent candidates against the National Conference, in the constituencies of Kahnachak and Akhnoor in the Jammed province. The independent candidates were< /DIV>

however, defeated and the Conference nominees returned from both the constituencies. With seventy-three of the Conference nominees having been returned unopposed the victory of its candidates in Akhnoor and Kahnachark, secured the Conference all the seventy five seats in the Assembly.

Double Charge

The Constituent Assembly met in Srinagar on 31 October 1951 Maulana Masoodi, who was also returned unopposed to the Assembly was unanimously elected the pro-tem Chairman of the Assembly. The next day Gulam Mohamad Sadiq was elected the President of the Assembly. The Assembly was inaugurated by Sheikh Mohamad Abdullah on 5 November 1951. In his inaugural address Sheikh Mohamad Abdullah said:

You are the sovereign authority in this State of Jammu and Kashmir, what you decide has the irrevocable force of law. The basic democratic principle of sovereignty of the nation embodied ably in the American and French Constitutions is once again given shape in our midst. I shall quote the famous words of Article 3 of the French Constitution of 1719: "The source of all sovereignty resides fundamentally is the nation; sovereignty is one and indivisible and imprescriptibly. It belongs to the nation.

We should be clear about the responsibilities that this power invests us with. In front of us lie decisions of the highest nationalimportance, which we shall be called upon to take. Upon the correctness of our decision depends not only the happiness of our land and people now, but the fate as well of generations to come.

Sheikh Mohamad Abdullah enumerated the basic tasks, which the Constituent Assembly would be called upon to undertake. The foremost of the responsibilities which he claimed, fell upon the Constituent Assembly, was to frame a constitution for the government of the State

Sheikh Mohamad Abdullah said:

One great task before this Assembly will be to devise a Constitutionfor the future governance of the country. Constitution making is a difficult and detailed matter. I shall only refer to some of the broad aspects of the Constitution, which should be the product of the labors of this Assembly.

Referring to these broad aspects of the Constitution, Sheikh Mohammad Abdullah observed:

To take our first task, that of constitution making, we shall naturally be guided by the highest principles of democraticconstitutions of the world. We shall base our work on theprinciple, of equality, liberty and social justice, which are an integral feature of all progressive constitutions. The rule of law as understood in the democratic countries of the world should be thecornerstone of our political structure. Equality before the law and the independence of judiciary from the influence of the executiveare vital to us. The freedom of the individual in the matter of speech, movement and association should be guaranteed;freedom of the press and of opinion would also be features of ourconstitution. I need not refer in great detail to all those rights andobligations, already embodied in New Kashmir, which areintegral parts of democracy which has been defined as "an apparatus of social organization wherein people govern throughtheir chosen representatives and are themselves guaranteed political and civil liberties."

Referring toddle placement of the State in the Indian federal organization and the relations between the State and the Union, he said:

You are no doubt aware of the scope of our present constitutional ties with India. We are proud to have our bonds with India, the goodwill of whose people and Government is available to us in unstinted and abundant measure. The Constitution of India has provided for a federal Union add in the distribution of sovereignpowers has treated us differently from other constituent units. With the exception of the items grouped under Defense, Foreign Affairs and communications in the Instrument of Accession, we have complete freedom to frame our Constitution in the manner we like. In order to live and prosper as good partners in a common endeavor for the advancement of our peoples, I would advise that, while safeguarding our autonomy to the fullest extent so as to enable us to have the liberty to build our country according to the best traditions and genius of our people, we may also, by suitable constitutional arrangements with the Union, establish our right to seek and compel federal cooperation and assistance in this great task, as well as offer our fullest cooperation and assistance to the Union.

The second important issue, which Sheikh Mohammad Abdullah called upon the Constituent Assembly to deliberate upon was the future of the Dogra rule. Abdullah pointed out that the National Conference believed that the "institution of monarchy was incompatible with the spins and needs of modern times which demand an egalitarian relationship between one citizen and another." He said:

The supreme task of a democracy is the measure of equality of opportunity that it affords to its citizens to rise to the highest point of authority and position. In consequence, monarchies are fastdisappearing from the world picture, as something in the nature of feudal anachronisms. In India, too, where before the partition six hundred and odd Princes exercised rights and privileges of ruler ship, the process of democratization has been taken up and atpresent hardly ten of them exercise the limited authority of constitutional heads of the States.

Another issue which Sheikh Mohammad Abdullah said, the Constituent Assembly would have to decide, was the nature of compensation which would be paid to the landowners whose estates had been resumed under the "land to the tiller," policy of the Interim Government. He told the Assembly:

The third major issue awaiting your deliberations arises out of the Land Reforms, which the Government carried out with vigor and determination. Our "land to the tiller" policy brought light to the dark homes of the peasantry; side-by-side, it has given rise to the problem of the landowners demand for compensation. The nation being the ultimate custodian of all wealth and resources; there presentatives of the nation are truly the best jury for giving a just and final verdict on such claims.

The most important issue, which Sheikh Mohammad Abdullah pointed out, the Constituent Assembly of the State would have to settle, was, that pertaining to the accession of the State. Sheikh Mohammad Abdullah told the Assembly that the Cabinet Mission had left three options open for the States: accession to India, accession to Pakistan and the assumption of independence. Sheikh Mohammad Abdullah Said:

The Cabinet Mission Plan has provided for three courses, which may be followed by the Indian States when determining their future affiliations. A State can either accede to India or accede to Pakistan, but failing to do either, it still can claim the right to remain independent. These three alternatives are naturally open to our State. While the intention of the British Government was to secure the privileges of the Princes, the representatives of the people must have the primary consideration of promoting the greatest good of the common people. Whatever steps they take must contribute to the growth of a democratic social order wherein all invidious distinctions between groups and creeds are absent. Judged by this supreme consideration, what are the advantages and disadvantages of our States' accession to either India or Pakistan or of having independent status?

Sheikh Mohammad Abdullah dwelt in detail on the advantages and disadvantages, the three alternatives had, and called upon the Constituent Assembly to take a decision which would be for the good of the State. "As a realist" Sheikh Mohammad Abdullah said, "I am conscious that nothing is all black or all white, and there are many facets to each of the propositions before us." Enumerating the "merits and demerits of the States accession to India", Sheikh Mohammad Abdullah told the Assembly that it was the "kinship of ideals which determined that strength of ties between two states": He said that the Indian National Congress had consistently supported the cause of "States People freedom", and the Indian Constitution idealized the objectives of secular democracy based upon justice, freedom and equality which provided the Muslims of the State the guarantee of their security in future." The national movement in our State naturally gravitates towards these principles of secular democracy". Sheikh Mohammad Abdullah pointer out further that the Interim Government had undertaken land reform' which would not have been possible in the "Landlord-ridden Pakistan' and the economic prospects of the State were closely bound with India "Potentially ", he told the Assembly, " we are rich in minerals, and in the raw materials of industry; we need help to develop our resources. India being more highly industrialized than Pakistan, can give us equipment technical services and materials. She can help us too in marketing. Many goods also which it would not be practical for us to produce here--for instance, sugar, cotton cloth and other essential commodities--can be got by us in large quantities from India." Listing the merits of accession to Pakistan, Sheikh Mohammad Abdullah told the Assembly, that more dependable roads and waterways of the State led to Pakistan not India which would hamper trade and commerce of the State. He also expressed his fears that communalism posed a threat to the Muslims in India and if India turned into a religious state in future, the interests of the Muslims would be jeopardized. "Certain tendencies have been asserting themselves in India" Sheikh Mohammad Abdullah told the Assembly, "which may in future convert it into a religious state wherein the interests of the Muslims will be jeopardized. "This would happen," he added, "if a communal organization had a dominant hand in the Government, and Congress ideals of the equality of all communities were made to give way to religious intolerance" He pointed out further that Pakistan was a Muslim state and a large majority of the people of the State were Muslims. Sheikh Mohammad Abdullah ruled out accession to Pakistan on the ground that Pakistan was a feudal state, economically backward and politically retrograde and oppressive. Besides the accession of the State to Pakistan would affect the future of one million non-Muslims of the State as there was no place for them in Pakistan. "Any solution " he told the Assembly, "which will result in the displacement or the total subjugation of such a large number of people will not be just or fair, and it is the responsibility of this House to ensure that the decision that it takes on accession does not militate against the interests of any religious group."

Examining the alternative of independence of the State, Sheikh Mohammad Abdullah made certain interesting observations. He said:

The third course open to us has still to be discussed. We have to consider the alternative of making ourselves an Eastern Switzerland, of keeping aloof from both states, but having friendly relations with them. This might seem attractive in that it would appear to pave the way out of the present deadlock. To us, as a tourist country it could also have certain obvious advantages. But in considering independence we must not ignore practical considerations. Firstly, it is not easy to protect sovereignty and independence in a small country, which has not sufficient strength to defend itself on our long and difficult frontiers bordering so many countries. Secondly, we must have the goodwill of all our neighbors. Can we find powerful guarantors among them to pull together always in assuring us freedom from aggression? I would like to remind you that from August 15 to October 22, 1947, our state was independent and the result was that our weakness was exploited by the neighbor with whom we had a valid Stand-still Agreement. The State was invaded. Where is the guarantee that in future too we may not be victims of a similar aggression?

The inaugural address delivered by Sheikh Mohammad Abdullah brought to surface the divergently different views the Conference leaders harbored about the accession of the State and the constitutional relations between the State and the Indian Dominion. The Government of India had offered to hold a referendum in the State to ascertain the wishes of the people of the State in regard to accession, but it had consistently refused to accept operatives for such a referendum, which repudiated the accession of the State to India. The investiture of any authority in the Constituent Assembly of the State, which was independent of the Constitution of India, virtually repudiated the accession of the State to India and conflicted with the stand, India had taken in the Security Council.

The Conference leaders read the events, which had led to the partition of India in their own way. The Cabinet Mission did not propose the division of India and the creation of two dominions: India and Pakistan; nor did it visualize any alternatives to the accession of the States, which recognized their independence. The Cabinet Mission plan envisaged a United India, of which the Indian States formed an integral part.

The partition of India, envisaged by the Mount batten Declaration of June 3, 1946, did not envisage independence of the Indian States. The partition plan, later embodied in the Indian Independence Act, provided for the withdrawal of the British Paramountcy. The dissolution of the Paramountcy liberated the Indian States from the protection of the British Crown, but it did not vest them with any more powers than the exercised under the Paramountcy.

The Jammu and Kashmir States acceded to India in accordance with the processes underlined by the partition. Maharaja Hari Singh had exhausted the alternatives available to him under the provision of the Indian Independence Act. The commitments made by the Government of India at the Security Council were not pronounced on behalf of the State of Kashmir; at least, Pakistan and the Security Council did not recognize them to be so. The attempts made by the Conference leaders to vest in the Constituent Assembly of the State, powers that did not rightfully belong to it, convicted with the claims of both India as well as Pakistan.

The problem of the Indian State was not confined to the rights and obligations of the Paramountcy alone and the alternatives, which the British sought to secure them. The future of the States was of crucial importance to the unity of India. The partition separated the Muslims from India but the partition did not envisage the division of the princely India or its separation from India The All India Congress Committee unequivocally repudiated the claim of any State to assume independence. The Committee emphasized that the relationship between the Government of India and the States would not be exhausted by the lapse of the British Paramountcy.

The Muslim League took the stand that Paramountcy reverted to the States after the transfer of power, leaving them free to take any course of action they preferred in their relations with the two dominions. However, both, the Viceroy and British Government refused to accept the position the League adopted. Mount batten gave a rebuff to the League, when he addressed the Princes on 25 July 1947, and told them plainly that they could not escape integration with the rest of India and the British Government would neither be prepared to offer aid nor accept the independence of any Stated "My scheme" Mount batten told the Princes, "leaves you with all practical independence you can possibly use and makes you free of all those subjects which you cannot possibly manage on your own. You cannot run away from the Dominion government which Is your neighbor any more than you can run away from subjects for whose welfare you are responsible."

The National Conference, virtually reiterated the demands of the Muslim League in respect of the States and sought to take the position in respect of Kashmir, which Mohammad Ali Jinnah had taken with regard to the Indian Princely States. Indeed, by virtue of the partition, the Indian States had been vested with technical independence, but they were all the same, a part of India, politically, administratively, economically and geographically Introducing the Indian Independence Bill in the House of Lords, Pathic Lawrence, the Secretary of the State for India admitted that the States were not an integral part of India but they could not afford to remain out of it. "But, apart from the political relationship between the States and British India", He told the House of Lords," there have grown up a vast number of economic and financial agreements, matters of common concern - posts and telegraphs, customs, transit, railways - and it would be disastrous to India if these arrangements were terminated on the transfer of power". The decision about the States was not, therefore, solely in the hands of the British, as perhaps the National Conference leaders visualized. The future of the States depended upon their history and their political relations with the rest of the country, which had evolved with the Paramountcy.

The Government of India too was an important factor to determine the future of the States. The rulers of the States could not visualize their future in isolation from India and that was precisely what the experience in Junagarh andJinnah Hyderabad proved. The Indian States were not subject to partition; neither the Muslim Rulers not the Muslim subjects of any Indian State were enjoined to opt for Pakistan by the partition plan or the Indian Independence Act. Princes were given the choice to join either of the two dominions without any preconditions and on the basis they chose. It was on that basis Mohammad All Jinnah offered the most favored treatment to some Rajput States in Western India if they chose to accede to Pakistan. The Conference leaders, therefore, attempted to add a fresh dimension to the accession of the Indian States. The fact that Muslims formed a majority of the population of Jammu and Kashmir, did not create any special conditions, for which they could claim the right under the partition plan or the procedures laid down by the Indian Independence Act, to accede to Pakistan or assume independence.

The more involved feature of the claims made by Sheikh Mohammad Abdullah was his assertion to vest the Constituent Assembly, with powers to revoke the accession of the State to India, and to accede in Pakistan or assume independence. The Conference leaders, perhaps, refused to countenance the fact that the Constituent Assembly had been instituted by an instrument created by the Constitution of India. They claimed that the Assembly was brought into being by the Interim Government, with inherent and original powers derived from the people of the State, who did not form a part of the people of India. The Conference leaders, in effect, sought to vest in the Constituent Assembly of the State, a separate charge, which was independent of the Constitution of India.

The doctrine of double charge, Sheikh Mohammad Abdullah evolved, had two serious implications:

  • The Constituent Assembly was independent of the Constitution of India and exercised inherent powers, which it did not derive from the Constitution of India.
  • The claim that the Constituent Assembly possessed the right to determine the finality of the accession of the State virtually amounted to the repudiation of the accession of the State to India.
The doctrine of double charge accosted the Government of India with another situation, which was more anomalous. In case a separate charge was recognized in the Constituent Assembly of the State, the competence of the Union and the applicability of the Constitution of India would be simultaneously limited to the terms specified by the Constituent Assembly of the State, a position that the Conference leaders were seeking to establish. Any such position would not only exclude the jurisdiction of the Union in regard to the State, but also close forever the possibility of modifying the provisions of the Constitution of India in regard to the State. The recognition of inherent powers in the Constituent Assembly of the State was also bound to destroy the precedence of the Constitution of India and reduce all federal instrumentalities to utter helplessness. The Federal Government would eventually be left with no remedies in case the Constituent Assembly of the State transgressed its limits and violated the Constitution of India. In view of the fact that the original jurisdiction of the Supreme Court of India was not applicable to the State, the conflicts which involved constitutional procedure, were bound to arise and prove catastrophic and ultimately lead either to the termination of the special provisions envisaged for the State or the disintegration of the federal relations between the State and the Union. The denouement came sooner than expected and the Interim Government in the State was dismissed and the special provisions for the State modified to clearly define the scope of the powers, the Constituent Assembly exercised, subordinating it completely to the instrumentalities created by the Constitution of India

On 7 November 1951, the Constituent Assembly set up several committees to examine various aspects of the constitutional organization of the State and report to the Assembly. In the committees were included the Basic Principles Committee and the Drafting Committee of the Constitution of the State and the Advisory Committee on Citizenship and Fundamental Rights. Mirza Afzal Beg, who moved the resolution for the appointment of the Advisory Committee on Citizenship and Fundamental Rights, told the Assembly that the proposed Committee would report on the qualifications of the citizens of the State and the fundamental rights they would be guaranteed. Beg said that the fundamental rights incorporated in the Constitution of the State would be designed in accordance with the rights, which were incorporated in the constitutions of the democratic states.

Jammu Agitation

The convocation of the Constituent Assembly and the pronouncements, the National Conference made, in and outside the Assembly, estranged the Hindus and the other minorities further. In the Jammu province, the distrust sunk deeper and the Praja Parishad movement gathered wide support among the Hindus in the province. The policies, the Conference leaders followed, narrowed their support base among the Hindus and the other minorities, driving the Conference to depend solely upon the Muslims, mainly those of the Kashmir province. The Praja Parishad movement drove the wedge deeper and in the course of time, the communal conflict inherent in the commitments to Muslim precedence came to surface.

On 15 January, the students of the Prince of Walces College in Jammu staged a demonstration protesting against the hoisting of the National Conference flag on the college building. They complained that the flag of the Conference was a party flag and therefore, it could not take the place of the national flag or the flag of the State. The demonstrations infuriated the National Conference leaders, who ordered severe punitive action against the students of the college. The students retaliated by proceeding on an indefinite hunger strike. The situation worsened and the protest demonstrations organized against the action of the government turned violent. The State Government came down upon the students with a heavy hand and the police resorted to firing at a number of places in the Jammu city. The situation deteriorated further and the army had to be called out to quell the disturbances. A seventy-two hour curfew was clamped on the Jammu city. The Interim Government blamed the Praja Parishad of having instigated the agitation. The Parishad denied having any hand in the demonstrations and demanded the institution of an independent enquiry into the causes of the disturbances. Several leaders of the Parishad, including the President of the Parishad, Pandit Prem Nath Dogra, were arrested.

While the conflagration in Jammu was still smoldering, the Head Lama of Ladakh, Kaushak Bakula, a member of the Constituent Assembly of the State presented a long memorandum to the Prime Minister of the State, Sheikh Mohammad Abdullah. Kaushak Bakula demanded the inclusion of statutory provisions in the Constitution of the State by virtue of which Ladakh would become a federating unit of the State so long Jammu and Kashmir remained in India. He urged upon the Premier that a separate Legislative Assembly of fifteen members, with an executive council responsible to it, should be set up to conduct the government and administration of Ladakh. Kaushak Bakula demanded that Ladakh should bear the same relation to the State that the State bore to India. He pointed out that the Buddhists of Ladakh were different from the rest of the people of the State in race, culture, religion and language and being represented by one member in the Assembly, they had little or no voice in the shaping of their future. The Head Lama demanded that in case the proposals to reorganize Ladakh into a federating province of the State were not accepted, a statutory advisory committee of ten members should be elected on the basis of joint electorates to advise the State Government in regard to Ladakh. Kaushak Bakula emphasized that no measures should tee taken by the Constituent Assembly of the State which affected the economic, political and religious life of the people of the province without the approval of the statutory advisory committee which be had proposed for Ladakh.

The communal polarization caused the Indian leaders considerable anxiety. They realised the dangers in the alienation of the major communities in the State and the advantage Pakistan could take of any Muslim distrust, which grew in consequence. However, their efforts to deal with the crisis were feeble. They denounced the Praja Parishad agitation but did not muster courage to tell the Conference leaders that they could not carry the Hindus and the other minorities with them so long they followed the policy of communal precedence. Obviously the Hindus and the other minorities were not prepared to accept a separate political identity of the State which was placed outside the constitutional organization of India and which was based upon the communal precedence of the Muslims. They had fought for the freedom of India, shoulder to shoulder with their fellow countrymen, opposed the partition with all their might and paid for their professions more heavily than their Muslim compatriots. Many of them entertained fears that the communal precedence was bound to conflict with the secular integration of India and ultimately lead to the secession of the State from India.

On 24 March 1952, Mirza Afzal Beg, the Chairman of the Basic Principles Committee unfolded in the Constituent Assembly the scheme of autonomy, the National Conference visualized for the Jammu and Kashmir State. He said that Jammu and Kashmir would be constituted into an "autonomous republic within the Indian Union, with a separate President, National Assembly, Judiciary, Regional Autonomy and separate citizenship". Beg's exhortations draw sharper reaction from the minorities in the State, and deepened the distrust in the Jammu province further.

In April 1952, Nehru sent Gopalaswami Ayangar to Jammu to make an assessment of the situation on the spot and help in the restoration of normalcy there. In Jammu, a number of delegations met Gopalaswami. Delegations, representing Hindus and the Sikhs of both the provinces, and the Buddhists of Ladakh also met Nehru's emissary. The Hindus delegations told Gopalaswami that:

  • The Hindus did not approve of the autonomous constitutional position, which the National Conference sought for the State, because such a loose relationship between the State and the Union would eventually lead to the cessation of the State from the Indian Union;
  • The National Conference was working to establish dominance over the Muslim majority over the government and the politics of the States, which was bound to relegate the Hindus and the other minorities in the State, a million and quarter of people, constituting almost half of the population of the State, to a second rate citizenship and a life of servillance;
  • The Interim Government had, right from its inception, vigoursly reorganized property relations in the State to ensure Muslim dominance over its economic organization;
  • The Interim Government had followed a persistent policy of excluding the Hindus from the administrative organization of the States;
  • The Interim Government had imposed an embargo on the admission of Hindus to educational institutions, grant of scholarships to them and their nomination to technical colleges inside and outside the State; and
  • The Hindus and the other minorities favored the application of the Constitution of India to the State in its entirety.
Ayangar apprised the Conference leaders of the concern of the Government of India about the developments in the State. He told them that the Government of India would not be able to support the demand of the autonomy of the State, which was based upon communal preferences. Ayangar advised the Conference leaders not to get committed to theocratic ideals and instead adopt policies, which aimed at the integration of the various communities in the State on the basis of equality and justice. Ayangar further asked the Conference leaders to take a more considerate view of the student agitation in Jammu and release the Parishad leaders and other students to restore normalcy in the province.

The State Government released the Praja Parishad leaders and the Students who had been imprisoned during the agitation. The release of the leaders had a soothing effect on the ruffled tempers in the province and the student agitation subsided gradually. However, Ayangar mission administered a jolt to the Conference leaders, who had received unquestioned support from the Government of India in whatever action they had taken in the State. The Muslim leaders of the Conference expressed strong resentment against Ayangar's visit to the State and charged the Government of India of interference with the internal affairs of the State. They claimed that the people o the State, who they unmistakably identified with the Muslims, would not accept the secular integration of the State with India, which would effect the Muslim majority character of the Stated They also claimed that the Constituent Assembly of the State, was not subject to any operatives which were not devised by the Interim Government and therefore, the Assembly was free to determine the institutional basis of the future constitution of the State. Some of the Conference leaders claimed that the Muslims in the State had supported the accession of the State to India on the condition that Jammu and Kashmir would be preserved its separate political identity and the Muslim majority character of its population. Several Muslim leaders of the Conference, including Sheikh Mohammad Abdullah claimed, further, that the Muslims of the State had repudiated Pakistan, mainly because the Muslim League had refused to recognize the separate political identity of the State and opted to join India on the assurance that the State would not be integrated with the rest of India. In truth, the assertions made by the Conference leaders were untenable. The League leaders had refused to meet the Conference emissaries, which were sent by Sheikh Mohammad Abdullah to negotiate reconciliation with the League shortly before the armies of Pakistan invaded the State.

In a few days after Ayangar left the State, the Conference leaders struck back. On 10 April 1952, Sheikh Mohammad Abdullah, addressing a public meeting at Ranbir Singh Pora, a small township in the Jammu province, situated on the borders of Pakistan, launched a scathing attack on the demand for the integration of the State into the political organization of India. He characterized the demand for the application of the Constitution of India to the State as "unrealistic, juvenile and insane" and pointed out that the people who sought the integration of the State with India and the termination of its separate political identity, "did not appreciate the realities of the situation which faced them in the State." Sheikh Mohammad Abdullah claimed that the Muslims were apprehensive of communalism, which was still rife in India. "No one can deny" he said "that communal feeling still persists in India. Many Kashmiris are apprehensive about what will happen to them and their position, if, for instance, something happens to Pandit Nehru." He said further, "If a special position was not secured for Kashmir in the Indian Constitution, how can we convince the Muslims in Kashmir that India does not interfere in the internal affairs of Kashmir?" Sheikh Mohammad Abdullah emphasized, "We have acceded to India in regard to defense, foreign affairs and communications in order to have a sort of internal autonomy."

Sheikh Mohammad Abdullah emphasized that if there was resurgence of communalism in India and if the people in the State were denied the right to shape their destiny, the accession of the State to India would end In an address to a huge congregation of Muslims at the famous Muslim shrine at Hazartbal in Srinagar he said, that the people of Kashmir were not prepared to renounce their cherished goal of freedom and the Ideology of the National Conference, the furtherance of which they had offered their blood and sweat during the last two decades. He told the congregation that Kashmir had acceded to India in respect of only defense, foreign affairs and communications and the people of the State possessed complete freedom in their internal affairs and enjoyed absolute rights to shape their own destiny in accordance with their will. Sheikh Mohammad Abdullah said "Those who are raising the slogan of full application of Indian Constitution to Kashmir are weakening the accession of the State. They are the same people who massacred Muslims in Jammu. These slogans naturally cause suspicion in the minds of the Muslims of the State". Sheikh Mohammad Abdullah emphasized that he had not surrendered to the Muslim communalism of Pakistan and he would not surrender to Hindu communalism in India.

A more clear exposition of the National Conference outlook was made by Sheikh Mohammad Abdullah in the Constituent Assembly on 25 April 1952. He said that the Constituent Assembly had the unfettered right to:

1. Determine the final disposition of the State in regard to accession;

2. Determine the future of the rule of the Dogra dynasty;

3. Frame the constitution of the State on all matters not transferred to the Union by virtue of the Instrument of Accession;

4. Determine the relationship between the State and the Union of India.

On 10 June 1952, the Basic Principles Committee submitted an interim report, which recommended the abolition of the Dogra rule and the replacement of the Ruler by a chief executive, who was appointed from among the people for a fixed tenure. In its report the Committee observed:

It is the considered view of the Committee that sovereignty does and must reside in the people and that all power and authority must flow from the expression of their free will. The State and itshead, respectively symbolize this sovereignty and its center of gravity. The Head of the State represents the authority vested inhim by the people for the maintenance of their rights. The promotion of the vital principle of constitutional progress makes it imperative that this symbol of state power should be subject to the vote of the people. The Committee therefore, strongly feels that consistent with the democratic aspirations of the people of the State the of rice of the Head of the State should be based upon the elective principle and not upon the principle of heredity. This would afford opportunities to all citizens to rise to the highest point of authority and position, with the support and confidence of the people. The spirit of equality and fraternity required by democracy, demands that in no sphere of state activity should a citizen be debarred from participating in the progress of his country and the advancement of its ideals and traditions. It is clear that the hereditary principle in the appointment to any of fire of powercurtails the peoples choice and to that extent, restricts their rightto elect a suitable person of outstanding merit and personal qualities to that position. The process of democratization will not be complete till the highest of rice of the State is thrown open to the humblest of the land and in this manner, the Head of the State will be repository of the unbound respect, confidence and esteem of the people.

The Committee concluded that there must be a sense of finality about the decision in regard to the issue of the Head of the State and accordingly recommended that the hereditary rule of the Dogras be terminated end the Head of the State be elected by the people of the State. Sheikh Mohammad Abdullah told the Assembly that the hereditary rule of the Dogras was incompatible with democratic principles as well as the Aspirations of the people of the State. He told the Assembly that the National Conference had decided to replace the Ruler by a chief executive, who was elected by the people of the State. Abdullah made certain Interesting observations in the Assembly in regard to the proposals to end the Dogra rule. He said:

However, the Committee has made the recommendation for thetermination of this hereditary rule in the light of the desires of the people, who under the guidance of National Conference, havesacrificed their lives, have gone to jails and put up in narrow cellsinhabited by serpents and scorpions. Hundreds of women folkhave been dishonored, hundreds made to crawl on their bellies and thousands martyred by shedding their blood. It is the sayingof the leaders that freedom cannot be achieved by requesting butby struggle. Only that nation attains freedom, which sheds its blood for this cause. This again cannot be achieved by begging. Freedom can be obtained only when the people of JammuKashmir and Ladakh, nay of the whole State, make sacrifices in the manner in which lakhs of people like Luther have struggled for their liberation. I want to make it clear to you that this issue has not cropped up under some sentiment of vengeance or because the Raja Red at a time when catastrophe came. It is noteven because we were imprisoned and now we have gained power so we should wreak vengeance on him. I want to say to the worldthat sovereignty belongs to the people and not to an individual.

On 12 June 1952, the report of the Basic Principles Committee was unanimously adopted by the Constituent Assembly. The resolution of the Assembly stipulated that:

1. The Head of the State would be elected bit the Legislative Assembly and after having been elected recognized by the President of India;

2. The Head of the State would hold office for a period of five years;

3. The Head of the State would be designated as the Sadar-i-Riyasat;

4. The method of election, qualifications and other matters pertaining to the office of the Head of the State would be prescribed in the State Constitution;

5. The Sadar-i-Riyasat would exercise such powers as were vested in him by the State Constitution;

6. The Constituent Assembly would in due course provide a suitable remedy in respect of violation of the Constitution or gross misconduct by the person for the time being holding the of lice of Sadari-Riysat.

After the report of the Basic Principles Committee was adopted by the Assembly, Durga Prashad Dhar, who also was returned to the Constituent Assembly unopposed, moved a resolution in the Assembly, praying that instructions be issued to the Drafting Committee to draw up appropriate proposals for the implementation of the recommendations of the Basic Principles Committee. The resolution stipulated:

This Assembly resolves that the recommendations contained inthe Interim Report of the Basic Principles Committee, as adopted by the Assembly, be implemented and for this purpose theDrafting Committee be directed to place before this Assembly appropriate proposals in the form of a resolution, within a period of one month from the date of the passing of this resolution.

The Government of India did not approve of the proposal the Constituent Assembly of the State made with regard to the replacement of the Ruler of the State by a President of the State who was elected in a manner the Conference leaders prescribed. The Conference leaders were accordingly informed that changes in the constitutional organization of the State, the Conference leaders proposed, would be inconsistent with the provisions of the Constitution of India They were also told that any changes in the constitutional organization of the State, which the Constituent Assembly proposed, would inevitably involve the integration of the State In the constitutional structure of India, in order that the instruments treated by the Constituent Assembly did not conflict with the imperatives, the Constitution of India envisaged. Nehru stated in the Indian parliament:

Now this position might well have lasted some time longer, butfor the fact that the Constituent Assembly of Kashmir came into existence and came into existence with our goodwill and with ourconsent. Now it is sitting to draw up its constitution. When it is drawing up its constitution it has to be in some precise terms; it cannot be fluid. Therefore, the question arose that nothing shouldbe done by the Constituent Assembly of Jammu and Kashmir State, which does not fit in with our Constitution, which in no sense is contrary to it or conflicts with any part of it. That is why this question now arose to consider.

A delegation of the Conference leaders was dispatched to Delhi to clarify the Conference stand on the constitutional issues, which the Government of India had raised. The delegation was headed by Mirza Afzal Beg and included Syed Mir Qasim, the Secretary of the Basic Principles Committee and M.A. Shahimiri, the Constitutional Advisor to the Constituent Assembly of the State. The delegation was later joined by the other senior leaders of the National Conference, including Sheikh Mohammad Abdullah, Maulana Masoodi, Bakhshi Gulam Mohammad and Gulam Mohammad Sadiq.

The Conference leaders had many reasons to propose the removal of Maharaja Hari Singh and his Regent Yuvraj Karan Singh and provide for an executive instrument in place of the Maharaja, which was instituted by the Interim Government. Obviously, they sought to eliminate the sole factor in the Government of the State, which was still outside their reach. The Conference leaders were aware of the fact that both Hari Singh and the Government of India did not favor the reorganization of the State into a separate and independent political identity based upon the Muslim majority character of its population. They intended to install one of their ranks in place of the Maharaja, as the President of the State, and remove from the Government of the State, a vital instrument, which the Government of India could use to smother the Interim Government, in an eventuality in which the National Conference attempted to force issues on it.

By now Nehru was disillusioned about the United Nations and had abandoned his hope to get the invading armies of Pakistan evacuated from the parts of the State occupied by them. He had painfully realized that the negotiations for truce and demilitarization had ultimately led to the consolidation of the Pakistan's hold on the territories of the State which fell on the other side of he cease-fire line. He had also realized that the delicately poised balance, which formed the basis of the Indian position in the State, had been considerably debilitated by the United Nations mediation, which had been deliberately protracted by Pakistan to demolish the Indian influence in the State. Nehru was also aware of the deep distrust in the State, which the policies followed by the Conference leaders had generated and the efforts, which were being made by a section of the Conference leadership to take advantage of the political instability in the State to convert it into a second Muslim republic.

In the deliberations between the Conference leaders and the representatives of the Government of India, the Conference leaders were told by the central leaders that:

1. Any changes in the constitutional organization of the State would necessitate the integration of the State into the constitutional organization of India and the application of the provisions of the Constitution of India to the State except in regard to the State Government, for which the constitutional provisions would be drawn up by the Constituent Assembly of the State;

2. The constitutional provisions drawn up by the Constituent Assembly of the State for the State Government should not tee inconsistent with the basic structure of the Constitution of India".

The Conference leaders were also told that piecemeal decisions could not be taken on isolated constitutional issues, as they came up for consideration from time to time and it would be necessary to consider the entire constitutional organization of the State, in order that the constitutional arrangements inside the State as well as between the State and the Union of India were given some form of uniformity and finality. It was agreed upon to evolve a broad structure of the future constitutional organization of the State, which could form the basis of a constitutional settlement between the State and the Government of India.

The special provisions of the Constitution of India envisaged by Article 370, were of temporary and provisional nature. The decisions taken by the Constituent Assembly of the State, involved the reorganization of the entire framework of the constitutional provisions of Article 370. The very act of replacing the Maharaja by a President of the State, who was installed into his of lice by the Interim Government, impinged upon the provisions of Article 370 and necessitated amendments in it. By virtue of Article 370, the State Government was construed to mean, "The Maharaja of Jammu and Kashmir, acting on the advice of the Council of Ministers for the time being In of rice under the Maharaja's proclamation dated the fifth day of March 1948." The Conference leaders virtually sought to change the provisions of Article 370, to secure a constitutional organization of the State, which would not be subject to any provisions of the Constitution of India, including the provisions of Article 370. This was exactly what the Indian leaders were not ready to accept. They had, though to their disadvantage, accepted the constitutional arrangements envisaged by Article 370, as a transitional measure. But they were not prepared to allow the Interim Government to formalize the exclusion of the State from the constitutional organization of India, permanently. The Government of India was committed to replace the temporary provisions envisaged by Article 370 by permanent constitutional arrangements after normalcy was restored in the State and the State was integrated with the best of the nation like the other Indian States.

The Conference leaders disapproved of the proposals the representatives of the Government of India made. Sheikh Mohammad Abdullah insisted upon the settlement of the various constitutional issues, one after the other, as they came up for the consideration of the Constituent Assembly of the State. He told the Indian leaders that the Interim Government would prefer to finalize a settlement with regard to the abolition of the Dogra rule first and then take up the matter with regard to the payment of compensation to landowners, who were expropriated from their estates. After the two issues were settled, he told them, the Interim Government would take up the other constitutional issues for a settlement one after the other.

The Indian leaders agreed to accept the abolition of the Dogra rule and the replacement of the Maharaja by a President of the State, who would be elected for such term and in such manner, as would be determined by the Constituent Assembly. They also agreed to allow the State to have a separate national flag and the Constituent Assembly, free to draw up a constitution for the residium of authority vested with the State. However, they proposed the application of the Constitution of India to the State in respect of citizenship of India, fundamental rights and related constitutional guarantees, jurisdiction of the Supreme Court of India, emergency powers of the President of India, and the financial relations between the Union and the States.

The Conference leaders refused to accept the application of any provisions of the Constitution of India to the State. They contended that the State had acceded to India in respect of three subjects only viz; defense, foreign affairs and communications, leaving the residuary sovereignty with the State, which could not be subject to any constitutional instruments, except those devised by the State itself. They claimed that the Constituent Assembly of the State had plenary powers to draw up a Constitution for the entire residium of sovereignty vested with the State and determine the form and nature of the constitutional instruments it sought to create, independent of the imperatives, the Constitution of India envisaged. They emphasized that except for the delegation of powers with regard to which the State had acceded to the Dominion of India the State retained its separate and independent political identity, and it could not be included in the constitutional organization of India. The Conference leaders stressed that the Jammu and Kashmir did not form a part of the republic of India, and consequently it was not subject to the jurisdiction of the Union Government.

Nehru pleaded with Sheikh Mohammad Abdullah and Beg to accept the application of the provisions of the Constitution of India to the State with regard to citizenship, fundamental rights, the jurisdiction of the Supreme Court and the financial organization of the Union. He assured them that the application of the provisions would provide the people of the State the benefit of the rights and liberties and the legal protection the Constitution of India envisaged and eliminate the psychological barriers which divided the people of the State from the people of the rest of India. He also pointed out to them that the inclusion of the State in the financial organization of the Union would enable the Interim Government to stabilize the dilapidated economy of the State and ensure it a course of future development.

The Conference leaders agreed to accept that the President of the State, would be recognized by the President of India after he was elected, but they refused to accept the application of any other provisions of the Constitution of India to the State. They told the Indian leaders that the application of the common Indian citizenship to the State, would adversely effect the domiciliary rules embodied by the State-subject Regulations, the Dogra rulers had promulgated in the State. They expressed the fears that the infringement of the State-subject rules would damage the economic and political prospects of the people of the State who were still economically and educationally backward. They further told the Indian leaders that the application of the fundamental rights and the jurisdiction of the Supreme Court would prejudice the economic reforms, mainly the land legislation, which involved the acquisition and transfer of land and property land, and conflicted with the fundamental rights embodied in the Constitution of India. Beg, who was deadly opposed to the application of the fundamental rights to the State, stunned the Indian leaders, when he told them that the extension of the jurisdiction of the Supreme Court of India would impinge upon the personal law of the Muslims in the State. Nehru assured the Conference leaders that the provisions of the Constitution of India in respect of citizenship and fundamental rights would be extended to the State with such exceptions as would save the State-subject Regulations and the land reforms from their effect. He also assured them that the competence of the Supreme Court would be extended to the State only in respect of its original jurisdiction.

Ultimately an agreement was reached between the Conference leaders and the Central leaders, which stipulated that the Maharaja would be replaced by a President of the State, who would be elected in the manner prescribed by the Constituent Assembly of the State and recognized by the President of India It was agreed upon that the State would have its own flag which the Constituent Assembly of the State adopted. It was also agreed upon that the residuary powers would continue to be vested with the State and the Constituent Assembly of the State would frame the Constitution for the government of the State.

Agreement was also reached with regard to the application of the provisions of the Constitution of India in respect of citizenship to the State with two exception

  • the State Legislature would be reserved the power to define the Permanent Residents of the State and determine and regulate their special rights and duties "in regard to the acquisition of immovable property, appointments to services and like matters."
  • special provisions would be made for the State-subjects who had migrated to Pakistan in 1947, and sought to return to the State for permanent settlement.
Nehru told the Parliament:

The point was raised by the representatives from Kashmir that certain old privileges dating from several generations past attached to what used to be the State-subjects. These are specially in regard to the acquisition and holding of immovable property appointment to services, scholarships and the like. Now, honorable members know that Kashmir is supposed to be one of thebeauty spots of the world, and apart from being a beauty spot, there are many other things which attract people there. And fromolden times the Maharajas, who succumbed to many things that came from the then British government, did not succumb to one thing. They were afraid that the climate of Kashmir and its otherattractive features being what they are, that Kashmir mightbecome a kind of colony of the British if they came and settled down there in large numbers. They were afraid of that. So theystuck to one thing that no foreigner could acquire property in Kashmir and they did keep them out. They made rules to the effect that only State-subjects could acquire property. In fact,they have made four different classes of State-subjects for thatpurpose. Property was given to Class I and Class II. The rules in regard to property still subsist. These are the rules in regard to theproperty in Kashmir, and everybody in Kashmir, to whatevergroup or community or region he belongs, wants to uphold these rules; naturally because they are for the benefit of residents ofKashmir, whether Hindus or Muslims. They are afraid that peoplefrom India or elsewhere, rich people and others might come andbuy up property there and thereby gradually all kinds of vestedinterests would grow up in property in Kashmir on behalf of the people from outside. We thought that this was also the existinglaw there and the existing law prevails under Article 370 of theConstitution which I have just read. We thought it was perfectly justifiable feeling on their part, and that acquisition of propertyin Kashmir State should be protected on behalf of people there.

Agreement was also reached in regard to the application of the fundamental rights and the related legal safeguards to the State. It was agreed upon that the fundamental rights would be made applicable to the State with exceptions so that the land reforms undertaken by the Interim Government were not effected.

A settlement was also reached with regard to the extension of the original Jurisdiction of the Supreme Court of India to the State. It was agreed upon that the jurisdiction of the Supreme Count in regard to the enforcement of the fundamental rights would also be extended to the State. In the process of the negotiations the Government of India had proposed that the board of Judicial Advisors would be abolished and the appellate jurisdiction of the Supreme Court should be extended to the State. The Board of Judicial Advisors was Constituted by Maharaja Hari Singh in 1939, and the Board exercised highest appellate jurisdiction in the State and heard cases in appeal in both civil and criminal matters. The Conference leaders however, expressed their inability to accept the proposals the Government of India made and preferred to retain the Board of Judicial Advisors for the time being.

In regard to the existing division of powers between the Union and the State, the two Governments agreed that the residuary powers would vest with the State. But in regard to the financial relations between the Union and the State, the two Governments agreed that a measure of financial integration of the State was necessary. It was agreed, that modalities of the financial integration would be determined after more detailed deliberations in the subject were undertaken.

Agreement was also reached in respect of the extension of the powers of the President of India to grant reprieve and commutation of punishments. During the deliberations, the Government of India proposed the extension of the powers of the President of India to the State with regard to emergencies arising out of war, aggression and internal disturbance. The Government of India offered to make an exception with regard to emergencies arising out of the internal disturbance, to the effect that a state of emergency on account of internal disturbance could be imposed in the State, "at the request or with the concurrence of the Government of the State." The Conference leaders agreed to accept the modified position but asked for some more time to consider the issue further.

Nehru sought an assurance from the Conference leaders that before the constitutional changes embodied by the Delhi Agreement were implemented the Constituent Assembly of the State would adopt a resolution which reaffirmed the accession of the State. Nehru stressed that a ratification of the accession of the State by the Constituent Assembly would put many controversies about the Constituent Assembly and its powers to determine the future disposition of the State at rest. An understanding was also reached that the changes in the constitutional organization of State and He constitutional changes between the Union and the State underlined by the Agreement, would be implemented simultaneously. Understanding was also reached that though the rule of the Maharaja and the Regency of his son, Karan Singh, would be abolished and replaced by a President of the State, Karan Singh would be elected the first President of the Jammu and Kashmir.

Sheikh Mohammad Abdullah placed the Delhi Agreement on the table of the Constituent Assembly on 11th August 1952. In his long address to the Assembly he gave a version of the agreement which varied from the actual agreement in several of its stipulations. He told the members of the Assembly that the agreement envisaged tentative decisions and broad principles of a settlement between the two governments; the Government of India and the Government of the State. He said:

Since the changes proposed by this Assembly involved corresponding adjustments in the Indian Constitution, the Government of India desired that it should have time to discuss with our representatives other matters pertaining to the constitutional relationship of our State with the Union. During the last stage of thesediscussions, it became necessary for me and some of my othercolleagues in the Government, to participate in the talks. I am now in a position to inform the House that certain broad principles have been laid down and certain decisions have been tentatively arrived at between the two Governments.

Sheikh Mohammad Abdullah further said:

Here I would like to point out the fact that Article 370 has beenmentioned as temporary provision in the Constitution does not mean that it is capable of being abrogated, modified or replaced unilaterally. In actual effect the temporary nature of this Article arises merely from the fact that the power to finalize the constitutional relationship between the State and the Union of India has been specially vested in the Jammu and Kashmir ConstituentAssembly. It follows that whatever modifications, amendments, or exceptions, that may become necessary either to Article 370 orany Article in the Constitution of India in their application to the Jammu and Kashmir State, are subject to the decisions or this sovereign body.

An inconclusive debate followed Sheikhs' address to the Constituent Assembly. Many of the members of the Constituent Assembly expressed serious misgivings about the stipulations of the Delhi Agreement, which they feared would ultimately pave the way for the abrogation of Article 370 and the integration of the State into the constitutional organization of India. Though in muffled words, they voiced strong disapproval of the application of the provisions of the Constitution of India to the State in regard to citizenship, fundamental rights, the powers and jurisdiction of the Supreme Court and the division of powers between the Union and the State.

Beg assured the members of the Assembly that Article 370 of the Constitution of India was provisional in nature mainly because a final constitutional settlement between the State and the Union of India depended upon the decision of the Assembly about the future constitutional organization of the State. In view of the fact that the Conference leaders claimed for the Constituent Assembly, the right to determine the final disposition of the State, Beg overtly suggested that the provisions nature of Article 370 emanated from the provisional nature of the accession of the State to India and the special constitutional provisions envisaged by Article 370 were subject to the veto of the Constituent Assembly of the State. Beg said:

Nobody here could entertain the idea that Kashmir will be dragged to the position of Part B States. I may make it clear on the floor of the House that Kashmir will never come to the position of Part B States. We have good reasons for that.

Within days after the Delhi Agreement was placed before the Constituent Assembly, a widespread campaign against the Agreement was unleashed in the rank and file of the National Conference. The campaign was mainly inspired by the senior leaders of the Conference, among them particularly those who had concluded the Delhi Agreement. Most of them expressed their dissatisfaction with the stipulations of the agreement and alleged that the application of the provisions of the Constitution of India with regard to Indian citizenship. Fundamental rights and the related legal guarantees and the jurisdiction of the Supreme Court of India, would affect the Muslim majority character of the State.

On 19th August 1952, the Drafting Committee of the Constituent Assembly of the State presented its report to the Assembly on the future of the Dogra rule and the replacement of the Maharaja by a President of the State, designated Sadar-i-Riyasat."

A resolution, which embodied the proposed changes and amendments in the Jammu and Kashmir Constitution Act of 1939, was appended to the report of the Drafting Committee. The report of the Committee along with the resolution was approved by the Constituent Assembly on 21 August 1952. The resolution stipulated that:
 

1. The Head of the State would be a person so recognized by the President of India on the recommendation of the Legislative Assembly of the State;

2. The Head of the State would hold of flee during the pleasure of the President of India;

3. The recommendation of the Legislative Assembly would be made by election;

4. The Head of the State would remain in of rice for a term of five years;

5. The Head of the State would exercise the powers and undertake functions that were exercised by the Maharaja of the State.


Uneasy days passed by and the Interim Government did not initiate any move in the Constituent Assembly to adopt measures to implement changes in the constitutional relations between the State and the Union, envisaged by the Delhi Agreement. Instead, fresh intelligence reached the Government of India that Sheikh Mohammed Abdullah was no longer inclined to propose Karan Singh, as the first President of the State, but he was fast preparing to install a Harijan Hindu, a member of the Constituent Assembly, who also had been elected uncontested, the Sadar-i-Riyasat of the State. Nehru, who felt severely sore over the developments in the State, conveyed to the Conference leaders that the Government of India would recognize no one else except Karan Singh, the Sadar-i-Riyasat or the President of the State and if the Conference leaders were not prepared to accept that, the Government of India Would not allow the termination of the Regency of Karan Singh.

Silence fell on the scene for sometime.

Praja Parishad Agitation

The reaction of the Hindus of Jammu to the Delhi Agreement was actively hostile. The Praja Parishad condemned the Delhi Agreement and alleged that the constitutional arrangements envisaged by the Agreement would add to the uncertainty, which prevailed in the State. The Parishad leaders further alleged that the Delhi Agreement would perpetuate the provincial dominance of the Kashmir over the regions of Jammu and Ladakh and aggravate the communal imbalances, which the Interim Government had fostered in the State. The Praja Parishad listed eight demands for which, the Parishad declared, it would launch a civil disobedience movement in the province. The demands stipulated that:

  • The Jammu and Kashmir State should be fully integrated in the Indian Union,
  • The State should be brought within the constitutional organization of the Indian Union and the application of the Constitution of India should be extended to the State in its entirety;
  • The jurisdiction of the Supreme Court of India should be extended to the State without any reservations;
  • The customs barriers between the State and the Indian Union should be abolished.
  • The division of powers between the State and the Union should be determined by the Seventh Schedule of the Constitution of India;
  • Free and fair elections should be held to the Constituent Assembly of the State;
  • An impartial tribunal of enquiry should be instituted to investigate into the corruption charges against the Interim Government;
  • In case the State was not fully integrated into the Indian Union and its constitutional relations with the Union continued to be based upon limited accession, Jammu province and Ladakh should be fully integrated with the Indian Union.
The Praja Parishad movement evoked widespread response in India. The major Hindu political organizations, the most powerful among them, the Bhartiya Jana Sangh pledged their support to the demand, the Parishad made. Most of the Hindu organizations in India supported the demand of the Parishad for the integration of the State into the Indian Union and expressed fears that the exclusion of the State from the political organization of India, would ultimately lead to disastrous consequences for the State. They charged the Interim Government and the Government of India of seeking to add to the deep political instability prevailing in the State, which the exclusion of the State from the mainstream of Indian political life had engendered.

The Interim Government came down upon the Praja Parishad Movement with a heavy hand. The Conference leaders condemned the agitation as an expression of Hindu communalism and a part of the wider resurgence of Hindu reaction in India. They alleged that the Praja Parishad was opposed to the autonomy of the State, and sought to end the separate political identity of the State by integrating it with the rest of India. The Conference leaders further alleged that the Parishad movement was aimed to forestall the decision of the Interim Government to abolish the Dogra rule and undo the political and economic reforms the Interim Government had undertaken.

On 8 November 1952, two Praja Parishad leaders, Prem Nath Dogra and Sham Lal Sharma were put under arrest. Their arrest sparked off a virulent agitation against the Interim Government all over the Jammu province.

In November 1952, the Constituent Assembly terminated the Regency of Karan Singh and elected him the Sadar-i-Riyasat of the State. When Karan Singh arrived in Jammu, after having been installed the Sadar-i-Rjyasat, he was greeted with black flags by the Praja Parishad demonstrators, who charged him of having betrayed the trust, which had been reposed in him as the Regent of the State.

Having accomplished the removal of Maharaja Hari Singh from the scene, the Conference leaders took no steps to implement the other stipulations of the Delhi Agreement. Sheikh Mohammad Abdullah instructed the Drafting Committee of the Constituent Assembly to go ahead with its work, without giving it any direction to incorporate the stipulations of the Delhi Agreement in the draft proposals, the Commit tee evolved. Instead Sheikh Mohammad Abdullah advised the Drafting Committee to reexamine the political issues about which a settlement had been reached at Delhi and then report to the working Committee of the National Conference. To neutralize the political arrangements arrived at Delhi further, Sheikh Mohammad Abdullah sent several drafts, which he had asked his close associates, both inside and outside the National Conference to prepare, to the Drafting Committee for its consideration. Most of the drafts, underlined the repudiation of the Delhi Agreement, total exclusion of the State from the political and constitutional organization of India and the reduction of the constitutional relations between the State and the Union to the terms of a bilateral political commitment between the Interim Government and the Government of India, which would not be subject to any instrumentalities created of the Constitution of India. Mir Qasim wrote later:

Sheikh Sahib instructed us to prepare drafts of the Constitution of the State. After a great deal of cutting and pruning several drafts were drawn up. Beg Sahib drew up a separate draft. Professor Bhan also prepared a draft. Sheikh Sahib asked us to place all the drafts before the Working Committee (of the National Conference), Before the drafts were presented in the Working Committee we went to Jammu to meet Bakhshi Sahib and showed him the drafts. Bakhshi Sahib said that the drafts would set India ablaze, because the Indian people would clearly see that Kashmir wanted to leave India. A crisis would follow.

The Drafting Committee placed the various draft Constitutions before the Working Committee. After an inconclusive debate in the Working Committee, Sheikh Mohamad Abdullah appointed a Legal Expert Committee of the Working Committee, to examine the drafts. The Committee was Constituted of Mirza Afzal Beg, Gulam Mohammad Sadiq, Syed Mir Qasim, Abdul Gani Goni and Gulam Mohiudin Hamdani. None of the Hindu or the Sikh members of the Working Committee of the Conference were appointed to the Committee.

The work of the Committee was far from smooth. It was wound up before it was able to evolve any framework of the Constitution of the stated

In May 1953, Nehru arrived in Srinagar. He had a long meeting with Sheikh Mohammad Abdullah. The Indian Prime Minister expressed his disapproval of the many pronouncements which the Conference leaders had made on the constitutional organization of the State. He told Sheikh Mohammad Abdullah that the Government of India had no intention of interfering with the internal affairs of the State so long the State was a part and parcel of India. However, he emphasized that the Government of India did not approve of the separatist trends, which had grown in the National Conference and the State Government. Nehru gave a note to Sheikh Mohammad Abdullah on the future constitutional organization of the State. In his communication, Nehru re-emphasized the need to integrate the State into the constitutional organization of the State and extend the application of the Constitution of India to the State in respect of citizenship, fundamental rights, the jurisdiction of the Supreme Court of India and the division of powers between the Union and the State on the basis of Delhi Agreement. Nehru conveyed to the Conference leaders that the Government of India strongly disapproved of the fissiparous and separatist trends, which had made their appearance in the State. Nehru chastised the Conference leaders for having severed from their commitment to Indian unity and promoting ideas about the independence of the State. Nehru condemned the independence of the State as an extremely dangerous proposition. He conveyed to Sheikh Mohammad Abdullah that he would prefer to handover the State to Pakistan on a platter rather than support its independence and allow it to be turned into a center of international intrigue, and endanger both India and Pakistan.

Later Nehru met the Working Committee of the National Conference. Bakhshi Gulam Mohammad and Gulam Mohammad Sadiq apprised Nehru of the deep division in the Conference leadership on a number of basic issues involved in the constitutional relationship between the State and the Union. They informed Nehru that they, on their part, supported a more integral relationship between the State and the Union and readjustment in the State-Center relations. Nehru informed both Bakhshi and Gulam Mohammad Sadiq of what had transpired between him and Abdullah and acquainted them with the contents of the note he had delivered to the latter.

After Nehru's departure, the distance between the Conference leaders and the Government of India widened rapidly. Sheikh Mohammad Abdullah and his associates in the Conference made no secret of their bitterness against the central leadership. The Conference leaders suffered from an incredible sense of self-righteousness and believed that they had justifiably fought Hindu communal forces in India, which sought to subject the Muslims in the State to the dominance of the Hindus. They did not hide their feelings that the support the Praja Parishad movement had received was aimed to destroy the autonomy of the State, which they claimed was the guarantee of secularism in the State. They were also convinced that the accession of the State was ultimately subject to their vote and if and when they chose, they could walk out of India, and since the Government of India had committed itself to a referendum, it could not stand in their way.

An insight into the Conference outlook can he had from a statement, which Maulana Sayeed Masoodi, General Secretary of the National Conference, issued to the press on 6 August 1953, three days before the Interim Government headed by Sheikh Mohammad Abdullah was dismissed. He stated:

The fact of the matter is that there is a deliberate attempt on the part of those who do not view Kashmir's present position with favor, to cloud the real issue seas to escape responsibility for the harm that has been caused to the Indo-Kashmir relationship by the support given to the recent agitation for Kashmir's merger with India. The real issue, it should be realized, is that there are people in India, who are not prepared to see Kashmir maintain its existing position. They are angry that Kashmiris should remain aloof both from India as well as Pakistan; one should not work one self up necessarily to see this view being expressed. Instead, it should be examined dispassionately. Then only can there be possible a correct appraisal of the situation in Kashmir. If Kashmiris rose as one man against Pakistan, it was because they saw that, that country wanted to force them into a position which they were not prepared to accept. If today demands are made in India which endanger the present autonomous position of the State and realizing this danger, the people of Kashmir feel inclined towards a third alternative, it is not they who should be blamed for it but those who are the root cause of it. It will not do to point out the defects of this or that alternative. What is required is to remove the causes which have led to this line of thinking. All those people in India, who are honestly interested in Kashmir and India thrive together on the basis of a willing, not forced association should come into the field and organize the Indian public opinion against this movement for the merger of the State. The communal and reactionary forces, within the state who have made Sheikh Abdullah's task difficult should be exposed and no quarter given to them. The 1ltficulties referred to by Sheikh Sahib in his recent speeches should be appreciated clearly and honest efforts made to remove them. Above everything else those who are thinking in terms of solving the difficulties by creating dissension within the National Conference should realize that the people of Kashmir, who the National Conference has the privilege to represent, would not countenance any such move from any quarter. Such tactics as these are not going to help a solution of the problems confronting India and Kashmir. Never before has there been a greater need for a clear understanding of the Kashmir problem as it is today.

Evidently, Masoodi exhorted the Indian people to organize Indian opinion against the integration of the State in the Indian Union, and to provide an opportunity to the people of the Stale to search fresh alternatives to the accession of the State to India. Masoodi claimed that the people of the State were inclined to keep aloof from both India and Pakistan and their views deserved to be examined dispassionately. He alleged that the reactionary forces in the State had made the task of the National Conference difficult and demanded that such forces should be exposed and given no quarter. Masoodi urged upon the people of India, who were honestly interested in a willing and not forced association between India and the State to remove the difficulties the National Conference faced in its endeavor to secure the State a position of equidistance from India and Pakistan.

In the early hours of the morning on 9 August 1953, Karan Singh dismissed Sheikh Mohammad Abdullah from his of rice. A second Interim Government was instituted in the State under the leadership of Bakhshi Gulam Mohammad. Sheikh Mohammad Abdullah, Mirza Afzal Beg and several of their close associates were promptly put under arrest.

Second Interim Government

Bakhshi did not take long to consolidate his hold over the National Conference. In September, the General Council of the Conference approved the change in the Conference leadership and pledged its support to Bakhshi, and elected him the President of the National Conference in place of Sheikh Mohammad Abdullah. On 5 October, the Constituent Assembly adopted a vote of confidence in the Interim Government headed by Bakhshi. Five members of the Assembly, including Sheikh Mohammad Abdullah and Mirza Afzal Beg, who were in jail, did not participate in the deliberations of the Assembly.

On 20 October 1953, two months after the second Interim Government was instituted, the Constituent Assembly of the State reconstituted the Basic Principles Committee, the Advisory Committee on Citizenship and Fundamental Rights, the Steering Committee and the Drafting Committee. The Delhi Agreement, concluded between the Conference leaders and the Central Government in July 1952, was referred to the reconstituted Committee for their reconsideration. A Joint Sub-Committee of the two Committees, the Basic Principles Committee and the Advisory Committee on Citizenship and Fundamental Rights, was constituted on 4 January 1954, to examine the stipulations of the Delhi Agreement and submit to the Constituent Assembly, proposals for its implementation. The joint Sub-Committee presented its report to a joint session of the Basic Principles Committee and the Advisory Committee on Citizenship and Fundamental Rights on 22 January 1954. On 3 February 1954, Syed Mir Qasim presented the reports of the Basic Principles Committee and the Advisory Committee on Citizenship and the Fundamental Rights to the Constituent Assembly. The report of the Basic Principles Committee stipulated the broad principles on which the constitutional organization of the State would be based. The report of the Advisory Committee on Citizenship and Fundamental Rights envisaged specific recommendations for the implementation of the Delhi Agreement in regard to the constitutional relations between the State and the Union. The report of the Basic Principles Committee stipulated that:

1. The Constitution of the State would enshrine sovereignty of the people, equality, democracy and social justice.

2. The people of the State would be secured the right to develop their respective languages, culture and script and fraternal understanding among them would be promoted;

3. The Government of the State would be based upon executive responsibility and the Council of Ministers charged to aid and advise the Sadar-i-Riyasat would severally and jointly be responsible to the State Legislature.

4. The State Legislature would be elected on the basis of universal adult franchise;

5. The Constitution would provide for one independent judiciary and a Public Service Commission; and

6. The official language of the State would be Urdu, and English would continue to be used for official purposes.

The Committee further recommended the application of such provisions of the Constitution of India to the State, as were ancillary to the accession of the State to the Indian Dominion and such other provisions as were specifically envisaged by the Delhi Agreement. The Committee observed:

When the dominion of India became a republic, the relationship of the State with the Union was embodied in Article 370 of the Union Constitution. The States' accession to the Union entails certain responsibilities on the center for protecting the interests of the State and also for its social and economic development. In order to enable the center to discharge its responsibilities which devolve upon it under the Constitution, those provisions of the Constitution of India which may be necessary for this purpose should be made applicable to the State in an appropriate manner. While preserving the internal autonomy of the State all the obligations which flow from the fact of accession and also its elaboration as contained in the Delhi Agreement should find an appropriate place in the Constitution. The Committee is of the opinion that it is high time the finality in this respect should be reached and the relationship of the State with the Union should be expressed in clear and precise terms.

The Advisory Committee on Citizenship and Fundamental Rights proposed the extension of the provisions of the Constitution of India to the State, with regard to citizenship. The Committee recommended that the extension of Indian citizenship to the State would be subject to the conditions that the domiciliary State-subject rules, in force in the State, would not be prejudiced.

The Advisory Committee recommended the application of the fundamental rights envisaged by the Constitution of India, to the State, with such modifications and reservations as would suit the requirements of the State. The Committee recommended the extension of the provisions of the Constitution of India with regard to the fundamental rights and related constitutional guarantees subject to the condition that the rights and privileges of the State-subjects embodied by existing State subject rules and the rights and privileges conferred upon them by the State Legislature in regard to acquisition and ownership of property, employment in the State government as well as the restrictions imposed on Indian citizens, other than State-subjects by the State Legislature to acquire and own property in the State and claim employment, would not be affected and abridged on the ground that such reservations and rules were inconsistent with the fundamental rights envisaged by the Constitution of India.

One member of the Basic Principles Committee and the Advisory Committee on Citizenship and Fundamental Rights, Abdul Gani Goni, presented a dissenting report to the Constituent Assembly.

Goni was a close associate of Sheikh Mohammad Abdullah and Beg and hailing from the Muslim majority district of Doda in the Jammu province, he was a strong proponent of the separate Muslim identity of the State. In his note of dissent Goni proposed:

1. The State of Jammu and Kashmir should be reserved the right to secede from the Union of India;

2. The jurisdiction of the Supreme Court should not be extended to the State and the Board of Judicial Advisors should be retained as the highest court of appeal in the State;

3. The people be vested with the rights to recall their representatives from the State Legislature.

The reports of the Basic Principles Committee and the Advisory Committee were approved by the Constituent Assembly on 6 February 1954. Abdul Gani Goni walked out of the Assembly in protest.

Subsequently, the Drafting Committee was instructed by the Constituent Assembly to formulate proposals for the implementation of the recommendations of the Basic Principles Committee and the Advisory Committee on Citizenship and Fundamental Rights. The Drafting Committee presented its report to the Constituent Assembly on 11 February 1954.

The Committee made comprehensive recommendations for the application of the provisions of the Constitution of India to the State, with reservations and exceptions. The Committee proposed the application of the Constitution of India to the State in respect of its preamble; citizenship; fundamental rights and the related constitutional remedies; elections to the Parliament; executive powers of the President of India and his powers in regard to war and internal disturbance; legislative relations between the Union and the States and the official language of the Union.

The recommendations of the Drafting Committee were approved by the Constituent Assembly, and communicated to the President of India. On 14 May 1954, the President of India incorporated the recommendations of the Constituent Assembly in Article 370 of the Constitution of India by a special proclamation.

The provisions of the Constitution of India pertaining to the territories of the Union were extended to the State with the exception that no bill could be introduced in the Parliament to reorganize the territories of the State, increase or diminish its area or alter its name without the consent of the State Government. Indian citizenship was extended to the people of the State, who after having migrated to Pakistan, returned to the State on a permit for settlement or a "permanent return", issued by authority of law made by the State legislature. The fundamental rights to equality before law, protection against discrimination on the basis of casts, creed, race, and place of birth, and the rights embodying the equality of opportunity in regard to public employments were extended to the State without any reservations. The right to freedom and right to liberty were extended to the State, subject to stringent restrictions. The State Legislature was reserved powers to impose restriction on the right to Liberty and freedom on grounds, which otherwise were not specified in the Constitution of India. The fundamental rights envisaging protection against exploitation and prohibition of all forms of forced labor, traffic in human beings, and employment of children in factories and hazardous occupations, were also extended to the State without any reservations. The right to property was extended to the State, subject to a number of limitations. The application of the provisions envisaging the right to property did not affect any existing laws pertaining to property in the State nor did these provision affect the right of the State to impose any levy or tax or penalty or make any law for the promotion of public health or prevention of danger to life or property or regulate evacuee property. The laws already made by the State Legislature were also saved from the effect of the fundamental rights to property, for a period of five years. Rights envisaging freedom of conscience and religion were also made applicable to the State. Provisions with regard to protection of the minorities and their rights to manage educational institutions were also extended to the State.

Provisions of the Constitution of India with regard to the Government of India were made applicable to the State with the following exceptions:

1. The representatives of the State to the House of the People would be nominated by the President of India on the recommendations of the State Legislature;

2. The power of the Parliament, to extend the appellate jurisdiction of the Supreme Court, would be limited to the extent that any such extension could only be made on the request of the State Legislature;

3. The Supreme Court was not vested with powers in regard to the State to issue directions, orders and writs for purposes not pertaining to the enforcement of the fundamental rights;

4. The powers of the Auditor and Comptroller General would not be made applicable to the State.

The scheme of the division of powers between the State and the Union was not altered by the Presidential order and the State continued to retain the residuary powers of legislation. However, the Union Parliament was empowered to legislate in regard to the state on almost all the subjects enumerated in the Union List except Central Bureau of Intelligence, Preventive Detention, Court of Wards, High Count and the extension of its jurisdiction, Corporations, weights and measures, mines and mineralogy, labor, oil fields, Census, Ancient monuments, inter-State migration, elections to the Parliament of India, Audit and Accounts. In respect of the administrative relations between the Union and the States, the provisions of the Constitution of India, which imposed administrative obligations on the States, were extended to the State with certain reservation. The States were required to exercise their administrative power to ensure compliance with directions given by the Government of India and give full faith and credit to the public acts records and proceedings of the Union including judicial proceedings. The Jammu and Kashmir State was, however reserved the right to determine the manner in which and the conditions under which the acts, records and the proceedings of the Union would be proved. An additional obligation was assumed by the State in so far as it undertook to acquire and requisition land and property on behalf of the Union.

Provisions of the Constitution of India with regard to the official language of the Union were extended to the State in regard to:

1. Official language for communication;

2. Official language for communication between one State and another State and between the States and the Union;

3. Proceeding of the Supreme Court.

Provision of the Constitution of India, with regard to the powers of the President of India to proclaim a state of emergency due to war and external aggression were extended to the State, but provisions pertaining to the emergencies arising out of internal disturbance and constitutional breakdown, were not extended to the State.

Provisions of the Constitution of India with regard to the amendment of the Constitution were applied to the State with the exception that the amendment made in the Constitution of India would extend to the State only after a Presidential order to that effect was issued with the concurrence of the State Government.

The Presidential order of 1954, was a halfway measure, which envisaged partial inclusion of the Jammu and Kashmir into the constitutional organization of India and met the disapproval of the Muslims as well as the Hindus and the other minorities, in the State. The Presidential order was condemned by the Muslims as a measure aimed to integrate the State into the Indian political organization and destroy its independent and separate Muslim identity. They blamed the Government of India as well as the second Interim Government, of having dissolved the first Interim Government headed by Sheikh Mohammad Abdullah, to undo the independence of the State and subject the Muslims to the dominance of the Hindus in India. The middle peasantry of the Muslims in Kashmir, which had replaced the landed aristocracy the Dogras rule had fostered, the new class of Muslims commercial magnates, trading agents, the vast variety of small industrial entrepreneurs, and flanks of the Muslim bureaucracy, which had replaced the administrative cadres of the Dogra regime, disapproved of the Presidential order, because the application of the Constitution of India to the State threatened the vested interest they had acquired in the exclusive sphere of authority and power, the first Interim Government had established in the State.

The Hindus and the other minorities disapproved of the Presidents Order because it envisaged a partial application of the Constitution of India to the State and in fact fell far short of their expectations. The almost, absolute authoritarian reach of the first Interim Government and ravaged the Hindus and the minorities: curtailed their interests in the property relations of the State, excluded them from the State patronage and reduced their political weight age and subordinated their sociological role to the interests of the new Muslim middle class in the State. The Presidential order did not effect the political instruments which the first Interim had evolved and which envisaged a system apart from the political process, the Constitution of India underlined. The Constitution of India reflected the perspective of the Constituent Assembly, which did not accept or uphold communal precedence of the Hindu majorities in India and which accepted political safeguards for the minorities.

In January 1956, an agreement was reached between the Government of India and the State Government on the financial integration of the State. According to the terms of the agreement, the State agreed to receive 55 per cent of the net proceeds of the income tax, 4 per cent of the duties of excise on matches, tobacco and vegetable products and hundred percent tax proceeds of the estates duty, levied and collected by the Government of India in the State. The Government of India agreed to grant to the State financial assistance to bring up the total revenues of the State from these sources to two and a half crores of rupees annually. In accordance with the agreement, the proportional rights in respect of properties and assets of the Post and Telegraph Departments, air transport, railways and the State forces, were taken by the Government of India. The provisions of the Constitution of India, with regard to the financial integration of the State were extended to the State in January 1958.

The provisions of the Constitution of India with regard to the High Courts in the States were partially extended to the State in 1954. In 1957, provisions of the Constitution of India with regard to the removal of the High Court Judges, embodies in Article 218 of the Constitution of India, and the provisions in regard to the restrictions which the Constitution of India placed upon the Judges of the High Courts in the States, to plead before any Court or tribunal, except the Supreme Court of India, were also extended to the State.

Agreement was also reached between the State Government and the Government of India regard with to the extension of the provision of the Constitution of India, pertaining to the Audit and Accounts of the Union, to the State. A resolution was adopted by the Constituent Assembly of the State on 14 November 1957, which proposed the application of the provisions of the Constitution of India with regard to the Auditor and Comptroller General of India to the State. The President's Order, which extended the application of the provision of the Constitution of India with regard to audit and accounts to the State, was issued on 15 February 1958.

Meanwhile the integration of the administrative services of the State came up for discussion between the State Government and the Government of India an agreement was reached to extend the operation of the administrative services of India to the State. In pursuance of the agreement, the Indian Parliament enacted enabling measures in May 1957, to extend the provisions of the Constitution of India in regard to the administrative services to the State. In 1959, the provisions of Constitution of India with regard to the powers and the functions of the Election Commission of India, were extended to the State.

The Constituent Assembly of the State completed the task of framing the Constitution of the State in November 1956. The Constitution of the State declared the State an integral part of the Union of India. The executive powers of the State were vested in the Sadar-i-Riyasat who was elected to his office for a term of five years by the Legislative Assembly of the State and confirmed into his office by the President of India. The Constitution of the State provided for a Council of Ministers, headed by the Prime Minister, to aid and advise the Sadar-i-Riyasat. The Ministers were severally and jointly responsible to the Legislature of the State. The executive and legislative competence of the Government of the State extended to the powers which were not transferred to the Union Government.

In order to further integrate the State in the Indian Constitutional organization the Constitution of the State was amended in 1965. In accordance with the amendment the office of the Sadar-i-Riyasat was abolished and the provisions with regard to the election, tenure and removal of the Sadar-i-Riyasat were repealed. The provisions of the Constitution of India, with regard to the appointment and tenure of the Governor of the Indian States, were incorporated in the Constitution of the State, which provided for the recognition of an acting Sadar-i-Riyasat, in an eventuality which involved the removal, illness or death of the Sardar-i-Riyasat, were also repealed. Provisions were incorporated in the Constitution of the State, by virtue of which the President was empowered to make arrangements for the discharge of the functions of the Governor, in contingencies which were not provided for the Constitution of the State.

The provisions of the Constitution of the State with regard to the office of the Prime Minister were also amended. The amendment provided for a Council of Ministers in the State, which was headed by the Chief Minister and not the Prime Minister, like the Council of Ministers in the other Indian States.

 

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