Sheikh Mohammad Abdullah's Statement to the Constituent Assembly on Delhi Agreement
11th August, 1952

Legal Document No 130

(Extract)

I crave permission to mace a statement before the House in regard to the constitutional relationship between the Jammu and Kashmir State and the Indian Union. As the Hon'ble Members are aware, during the last session of the Constituent Assembly, the Basic Principles Committee had submitted a report making certain specific recommendations about the future Head of the State. The House, while accepting these recommendations, had charged the Drafting Committee to present for the consideration of the Assembly, a draft resolution incorporating the proposed principles for the election of the Head of the State. The Drafting Committee will, no doubt, submit its report to the House during this session.

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 these discussions, it became necessary for me and some of my other colleagues 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.

X X X

The basis of our relationship with India is the Instrument of Accession which enabled our State to enter into a lemon with India. In accordance with the terms of the Instrument, certain powers were transferred to the Centre. The principal matters specified for this purpose in respect to which the Dominion Legislature could make laws for this State were:

(a) Defence,

(b) External Affairs, and

(c) Communications.

This arrangement involved a division of sovereignty which is the normal feature of a Federation. Beyond the powers transferred by it to the Dominion, the State enjoyed complete residuary sovereignty.

These terms of the association of our State with the Dominion of India were maintained; and, subsequently, when the Constituent Assembly of India was charged with the task of framing a Constitution, this over-riding consideration was kept m view in determining the position of this State in the pro-posed Constitution Earlier to this, it had been agreed between the two Governments that "in view of the special problems arising in respect of this State and the fact that the Government of India have assured its people that they would them-selves finally determine their political future", a special position should be accorded to Jammu and Kashmir in the future Constitution so that a limited field of the Union Powers over the State is ensured. Dour representatives were nominated from the Jammu and Kashmir State to the Constituent Assembly of India] These representatives participated in the deliberations of the Constituent Assembly of India at a time when the bulk of the Indian Constitution had already been adopted. It was at this stage that the constitutional position of this State was determined in the Constitution of India. The representatives of the Jammu and Kashmir State reiterated their view that our association with India should be based on the terms of the Instrument of Accession. It was at this stage that the constitutional position of the State was determined in the Constitution of India. Lithe representatives of the Jammu and Kashmir State reiterated their view that our association with India should be based on the terms of the Instrument of Accession. It was also made clear that while the accession of the Jammu and Kashmir State with India was complete in fact and law to the extent of the subjects enumerated in this Instrument.. the autonomy of the State with regard to all oilier subjects outside the ambit of the Instrument of accession should be preserved.

X X X

Evince a good deal of confused thinking and uninformed criticism is indulged in by some interested people. I would like to point out here that the Constitution has confined the scope and jurisdiction of the Union powers to the terms of the Instrument of accession with the proviso that they may be extended to such other matters also as the President may by order specify with the concurrence of the Jammu and Kashmir Constituent Assembly. The special problems facing the State were thus taken into account and under the Constitution the relationship approximated to that subsisting under the Instrument of accession.

The Constitution of the Indian Union, therefore, clearly envisaged the convening of a Constituent Assembly for the Jammu and Kashmir State which would be finally competent to determine the ultimate position of the State in respect of the sphere of its accession which would be incorporated as in the shape of permanent provisions of the Constitution

X X X

The Hon'ble Members are aware that as the leader of the National Conference party, I indicated in my inaugural address the scope of the decisions which I felt the Constituent Assembly would have to take. I listed the four main issues as pertaining to the main functions of the Assembly, viz., the future of the Ruling Dynasty, payment of compensation for the land transferred to cultivators under the Big Landed Estates Act, Ratification of the State's Accession to India as well as the framing of a Constitution for the State. While discussing these issues in my address to this House, I had given clear indications of my party's views in regard to them. I had also an occasion to place my point of view on these issues before the representatives of the Government of India and I had the satisfaction that they approved of it.

When Constituent Assembly commenced its labours, it had to tackle these issues in course of time. It took decisions m regard to payment of compensation to landlords and it came to the conclusion that no compensation was justified.

The Constituent Assembly has, at present, under its consideration the future of the Ruling Dynasty. In this connection the Basic Principles Committee recommended that the institution of hereditary rulership in the State should be abolished and in future the office of the Head of State should be elective. While accepting the recommendations of the Basic Principles Committee, this Assembly charged the Drafting Committee to place before this House appropriate proposals for the implementation of these recommendations.

As I said in the beginning of my statement, such a fundamental decision involved corresponding adjustments in the Indian Constitution and in order to finalist the position in respect of this issue and other matters pertinent to it, I and my colleagues had discussions with the representatives of the Government of India as a result of which we arrived at some tentative agreement, tile details of which I wish to place before the House.

The Government of India held the view that the fact that the Jammu and Kashmir State was constituent unit of the Union of India led inevitably to certain consequences in regard to some important matters, namely:

(a) Residuary Powers, (b) Citizenship, (c) Fundamental Rights, (d) Supreme Court of India (e) National Flag, (f) The President of India, (g) The Headship of the State (h) Financial Integration, (i) Emergency Provisions, and (j) Conduct of elections to Houses of Parliament.

Permit me, Mr. President now to deal with each one of these Items and also the agreement, arrived at between the Jammu and Kashmir Government and the Government of India in relation to them.

RESIDUARY POWERS

It was agreed that while under the present Indian Constitution, the Residuary Powers vested in the Centre in respect of all the States other than Jammu and Kashmir, in the case of our State, they rested in the State itself. This position is compatible with Article 370 of the Indian Constitution and the instrument of Accession on which this article is based. We have always held that the ultimate source of sovereignty resides in the people. It is, therefore, from the people that all powers can flow. Under these circumstances, it is up to the people of Kashmir through this Assembly to transfer more powers for mutual advantage to the custody of the Union Centre.

CITIZENSHIP

It was agreed that in accordance with Article 5 of the Indian Constitution persons who have their domicile in the Jammu and Kashmir State shall be the citizens of India. It was further agreed that the State legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State, more especially in regard to acquisition of immovable property, appointments to services and like matters. Till then the existing State law would apply. It was also agreed that special provision should be made in the laws governing citizenship to provide for the return of those permanent residents of Jammu and Kashmir State, who went to Pakistan in connection with the disturbances of 1947 or in fear of them as well as of those who had left for Pakistan earlier but could not return. If they returned, they should be entitled to the rights, and privileges and obligations of citizenship.

There are historic reasons which necessitate such constitutional safeguards as for centuries past, the people of the State have been victims of exploitation at the hands of their well to- do neighbours. The Hon'ble Members are perhaps aware that in the late twenties, the people of Jammu and Kashmir agitated for the protection of their bonafide rights against the superior competing interests of the non-residents of the State. It was in response to this popular demand that the Government of the day promulgated a Notification in 1927 by which a strict definition of the term "State Subject'' was provided. I am glad to say that the Government of India appreciated the need for such a safeguard. No definition of the special rights and privileges of the residents of the State can afford to remain static. The need may arise at one stage or the other to liberalise such a definition. The importance of the fact that State Legislature shall retain powers to be able to effect such modifications becomes obvious in this context.

There is yet another class of State Subjects whose interests had to be safeguarded. The Hon'ble Members of this House are aware that on account of the disturbances of 1947 and also as a consequence of the invasion of this country by Pakistan large number of the residents of this State suffered dislocation. We have, therefore, to visualize the possibility of their return to their homes and hearths as soon as normal conditions are restored. It has been suggested in certain quarters that this protection has been provided only for those residents of the State who are at present stranded in Pakistan I would like to make it clear, as I have stated earlier, that this protection will operate only when the conditions are normal and such conditions naturally presume that the resettlement of the dislocated population, whether Muslim or Non-Muslim cannot be one-sided or unilateral.

FUNDAMENTAL RIGHTS

It is obvious that while our constitution is being framed the fundamental rights and duties of a citizen have necessarily got to be defined. It was agreed, however, that the Fundamental Rights, which are contained in the Constitution of India could not be conferred on the residents of the Jammu and Kashmir State in their entirety taking into account the economic, social and political character of our movement as enunciated in the New Kashmir Plan. The need for providing suitable modifications, amendments and exceptions as the case may be in the Fundamental Rights Chapter of the Indian Constitution in order to harmonize those provisions with the pattern of our principles was admitted. Particular care would have to be taken to preserve the basic character of the decisions taken by this House on the question of land compensation as well as the laws relating to the transfer of land to the tiller and other matters; The main point to be determined is whether the Chapter of our Fundamental Rights should form a part of the Kashmir Constitution or that of the Union Constitution.

SUPREMENT COURT

It was agreed that the Supreme Court should have original jurisdiction in respect of disputes mentioned in Article 131 of the Constitution of India. It was further agreed that the Supreme Court should have jurisdiction in regard to Fundamen-tal Rights which are agreed to by the State.

On behalf of the Government of India, it was recommended that the Advisory Board in the State, designated "His High-ness's Board of Judicial Advisors" should be abolished and the jurisdiction exercised by it should be vested in the Suprement Court of India. That is to say that the Supreme Court should be the final Court of appeal in all civil and criminal matters as laid down in the Constitution of India.

We, however, felt that this would need a detailed examination and consequently it was agreed that we should have time to consider it further.

NATIONAL FLAG

We agreed that in view of the clarifications issued by me in my public statements while interpreting the resolution of this House according to which the old State flag was in no sense a rival of the National Flag. But for historical and other reasons connected with the freedom struggle in the State, the need for the continuance of this flag was recognized. The Union flag to which we continue our allegiance as a part of the Union will occupy the supremely distinctive place in the State.

PRESIDENT OF INDIA

It was agreed that the powers to grant reprieve and com-mute death sentences, etc. should also belong to the President of the Union.

HEADSHIP OF THE STATE

I am glad to inform this House that the Government of India have appreciated the principle proposed by the Basic Principle Committee as adopted by this Assembly in regard to the abolition of the hereditary rulership of the State. In order to accommodate this principle, the following arrangement was mutually agreed upon:

i. The Head of the State shall be the person recognized by the President of the Union of the recommendation of the Legislature of the State.

ii. He shall hold office during the pleasure of the President.

iii. He may, by writing under his hand addressed to the President resign his office.

iv. Subject to the foregoing provisions, the Head of the State shall hold office for a term of five years from the date he enters upon his office.

v. Provided that he shall, notwithstanding the expiration of his term, continue to hold the office until his successor enters upon his office.

FINANCIAL INTEGRATION

In regard to this subject, we agreed that it would be necessary to evolve some sort of financial arrangement between the State and the Indian Union. But as this involved far reaching consequences, it was felt that a detailed and objective examination of this subject would be necessary.

EMERGENCY POWERS

On behalf of the Government of India, it was stated that the application of Article 352 of the Constitution was necessary as it related to vital matters affecting the security of the State. They did not press for the application of Articles 356 or 360.

On behalf of the Kashmir Delegation, it was stated that the application of Article 352 to the State was not necessary. In the event of war or external aggression, item I in the Seventh Schedule relating to the defence of India applied and the Government of India would have full authority to take any steps in connection with defence, etc. In particular, we were averse to internal disturbance being referred to in this connection, as even some petty internal disorder might be considered sufficient for the application of Article 352'.

In reply it was pointed out that Article 352 could only be applied in a state of grave emergency and not because of some small disorder or disturbance.

In order to meet our view point, it was suggested on behalf of the Government of India that Article 352 might be accepted as it is with the addition at the end of the first paragraph (1) of the following words: "but in regard to internal disturbance at the request or with the concurrence of the Government of the State."

We generally accepted this position, but wanted some time to consider the implications and consequences as laid down in Articles 353, 358 and 359 which on the whole we accepted. In regard to Article 354, we wanted to examine it further before expressing our opinion.

CONDUCT OF ELECTIONS TO HOUSES OF PARLIAMENT

Article 324 of the Indian Constitution already applies to State in so far as it relates to elections to Parliament and to the Offices of the President and the vice-President of India.

I have put before this House the broad indications of the agreements arrived at between us and the Government of India. As the Hon'ble Members will, no doubt, observe, the attitude of the Government of India has been most helpful. A satisfactory position has emerged and we are now able to assess the basic issues of our constitutional relationship with India in clearer terms. There has been a good deal of accommodation of our respective points of view. Hotly the representatives of the Government of India and the Kashmir Delegation, have been impelled by the desire to strengthen further the existing relationship to remove all obscurity and vagueness. We are convinced, as ever before, that we have the full support both of the Government and the people of India in the fulfillment of our democratic ideals and the realization of our objectives.