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Report of the Kashmir Constitutional Reform Conference
1932

Legal Document No 50

The most important issues which the Conference has examined are as follows:

(a) Is it desirable that there should be a Legislative Assembly?
(b) If so,

  1. What should be the functions of such an Assembly, 
  2. What should be the franchise basis, and 
  3. How should the Assembly be composed.
As regards the first of these questions, it will be seen from the proceedings that there has been some difference of opinion. In regard to the functions of the proposed Assembly something closely approaching unanimity has been achieved. So far as the other main issues are concerned, there has been a: very considerable divergence of views, especially with regard to the composition of the Assembly. This divergence is hardly surprising, considering the conflicting interests which different members have represented. There appeared unfortunately to be no hope whatsoever of attaining any semblance of a unanimous finding on these points, and it was therefore agreed that there was no prospect of submitting a joint report. The Chairman accordingly forwards his owns recommendations, referring, as may be necessary, to the opinions put forward on behalf of various interests: the proceedings recorded will show that the recommendations made, follow in general the joint views expressed, where there has been a consensus of opinion: where opinions have differed endeavours have been to bear in mind the legitimate interests of all communities concerned.

The full purport of the draft recommendations has been read out in Urdu at a meeting held on the 7th of April so as to provide an opportunity for the suggestion of modifications or amendments; any such suggestion received has been given due attention, and each member has been informed by letter of the final recommendations which are being made in regard to the composition of the Assembly after further consideration of the views put forward.

ESTABLISHMENT OF A LEGISLATIVE ASSEMBLY

Certain members have, it will be seen from the proceedings, expressed considerable misgivings as to the wisdom of such an innovation at the present time, in view of tine disturbed conditions which have unhappily been prevailing.

The general feeling is, however, in favour of such an. experiment being tried.

It appears highly desirable that the subjects of the State should be given a voice in the administration and in view of the announcement already made by His Highness in this behalf there would seem to be no room for doubt as to the action which should be taken in this respect.

It is recommended that a Legislative Assembly should be established as soon as may be practicable.

POWERS AND FUNCTIONS OF THE ASSEMBLY

The proceedings will show that a virtually unanimous opinion has been expressed at the Conference in Favour of the functions of the Assembly being defined as follows:

LEGISLATION

Subject to the final assent of His Highness the Maharaja Bahadur the Assembly should have power to make laws.

GOVERNMENT BILLS

All Government bills except such bills, if any, as relate exclusively the reserved subjects (namely (1) the person or privileges of His Highness or members of the Ruling Family, (2) foreign relations, (3) the discipline and control of the State Forces) should be referred to the Assembly and should not become law until ratified thereby provided that:

  1. His Highness should in case of emergency retain full power to make and promulgate ordinances for the good government of the State and any such ordinances should be operative for a period of six months unless repealed by His Highness at an earlier date.
  2. His Highness should, where he considers it necessary in the interests of good government, have power to certify any bill which the Assembly may decline to pass.
PRIVATE BILLS

The introduction of any private bill should be allowed and the bill, if passed, should, subject to His Highness' final assent, become law provided that:

  1. no such bill shall relate to reserved subjects as already defined;
  2. unless the previous approval of His Highness' Government has been obtained, no bill shall involve the imposition of new taxation or the enhancement or reduction of existing taxation;
  3. no bill shall affect the religious rites, usages, and downments or personal law of any community other than to which the proposer belongs; a bill affecting the usages etc. of that community only which the proposer represents may be introduced if not less than two thirds of the elected members of their community are in favour thereof, and if the previous permission of His Highness for the introduction of such a bill has been obtained;
  4. no bill shall involve the imposition of disabilities on any class or community as such;
  5. no bill shall affect the rights specifically granted to to Jagirdars, Pattadars, etc. in their Sanads or Pattas;
  6. unless the previous sanction of His Highness' Government has been obtained no bill shall be introduced which it is intended to apply to any Illaqa or Jagir to which the State laws are not ordinarily applicable.
His Highness shall have the power of referring back any bill to the Assembly for further consideration or amendment.

The above proposals, representing, as already remarked, the practically unanimous opinion of the Conference, are recommended for adoption.

Various other suggestions have been put forward; it has been suggested for instance that no bill should be introduced (a) which affects the privileges o} Rajputs as such or (b) which affects any class of non-state subjects residing in the Jammu and Kashmir State.

There does not appear to be any sufficiently strong reason for adopting these suggestions. In regard to the rights of non-State subjects for the purposes of the Assembly, opinion is expressed below.

QUESTIONS AND RESOLUTIONS

Questions and resolutions should be permitted without restriction provided that:

  1. they do not relate to reserved subjects as already defined;
  2. they do not affect the religious rites, usages, endowments or personnel law of any community other than that to which the member asking the question or moving the resolution belongs; such questions or resolutions may, however, be allowed with the special permission of the President of the Assembly, who should, where he considers it necessary, refer the matter for the orders of His Highness;
  3. they do not relate to the merits of cases under enquiry by a court of law.
Supplementary questions should be allowed.

PERIOD OF NOTICE

In the case of questions, thirty days' notice should ordinarily be given, so as to afford due opportunity for the supply of the information required. The President should have the power to reduce this period where it may be necessary.

In the case of private bills, a similar period of thirty days' notice should be given, and the member wishing to introduce a bill should forward a copy thereof together with a statement of the objects and reasons.

In regard to resolutions fifteen days, notice should be given.

In the case of any bills, resolutions of questions for which previous sanction is necessary, an additional period of fifteen days' notice over and above the minimum period ordinarily prescribed should be required.

BUDGET

The President should appoint certain days prior to the announcement of the State financial year (at present the first of Katik or mid-October) for the discussion of the State Budget In the Assembly.

A week before the first date so appointed, a copy of the budget and a brief explanatory statement thereof in Urdu should be forwarded to each member of the Assembly. Members should on the dates appointed be given full opportunity to ask questions and make suggestions relating to any part of the budget with the exception of reserved subjects.

No kind of new taxation should be imposed without reference to the Assembly; the grant of monopolies etc. which amount in themselves to the imposition of new taxation should be treated in the same manner.

FREEDOM OF SPEECH IN THE ASSEMBLY

Speeches delivered in the Assembly should be privileged and should not be actionable. It should be the function of the President to intervene in the case of exceptionable remarks.

In regard to the above points, namely questions and resolutions, period of notice, budget procedure and freedom of speech, the proposals recorded above represent the general consensus of opinion expressed at the Conference, and their Adoption is recommended accordingly.

STANDING COMMITTEE

It has been suggested that simultaneously with the creation of the Assembly, a non-official Standing Committee should be appointed and that the policy of Government in regard to finance, public health, etc. should be explained to the members of such Committee and their opinions on these point should be Ascertained.

This is a development which might well take place after a suitable period has elapsed. It appears advisable, however, that it should be deferred until the Assembly has actually been created and some experience of its working has been gained.

FRANCHISE

It is generally agreed that the number of voters on the Electoral roll should amount approximately to ten per cent of the total population, a ratio which has frequently been adopted as the working rule in British India. In order to achieve this object the appointment of a Franchise Committee or some Organization corresponding thereto will be necessary. Information is unfortunately lacking as to the number of people likely to be entitled to vote if different kinds of qualifications are adopted; the proposals put forward are therefore merely tentative and suggested as a temporary expedient.

As a working basis for the time being, various qualifications have been suggested. It will be observed the proceedings that opinions have differed to a marked extent in this respect

For instance, the views given in respect to land revenue qualifications have varied between Rs. 10 payment and Rs. 50 payment per annum; in respect to immoveable property between Rs. 500 and Rs. 2000 in value, and in regard to educational qualifications between Middle pass and Graduate standard.

It is recommended that in the four following cases, the standards now prescribed for the right of voting at Municipal elections may be adopted as franchise qualifications in regard to the Assembly:

  1. Payment of land revenue not less than Rs. 20 per annum.
  2. Possession of immoveable property not less than Rs. 1000 in value.
  3. Membership of a learned profession, such as the Medical or Legal profession, etc.
  4. The receipt of a Government pension of not less than Rs. 25 per month.
In addition to the above it is recommended that any of the following additional qualifications should also be regarded as. sufficient:
  1. Payment of Municipal taxes not less than Rs 20 per annum.
  2. Title holders, Zalidars, Lumberdars and Safed-Poshes.
  3. Jagirdars and Pattadars enjoying an assignment of not less than Rs 50 per annum.
  4. Educational standard Matriculate or corresponding vernacular standard.
The qualifications suggested above would appear to be sufficient for the present. It does not appear advisable to provide for further qualifications in the way of annual income, payment of house-rent or payment of customs as there will be difficulties in the way of satisfactorily verifying such qualifications.

The same qualifications for membership or the Assembly as those recommended for franchise might be adopted.

DISQUALIFICATIONS

It is recommended that the following should be regarded as disqualified for purpose of franchise:

  1. Females.
  2. Persons below the age of 21.
  3. Person certified as insane.
  4. Undischarged bankrupts or insolvents.
  5. Persons convicted by a criminal court of an offense punishable with imprisonment for a term exceeding six punishable with imprisonment for a term exceeding six months, provided that if a period of five years has elapsed, since the termination of the sentence, the disqualification shall cease to operate.
  6. Persons who are at the time of the election under orders by a competent court to provide security for good behaviour.
  7. Persons, other than State-Subjects, who have not been domiciled in the State for a consecutive period of five years immediately preceding the time of the election.
With regard to the latter disqualification. it has been represented on the one hand that only State subjects as now defined should have the right to vote and that on the other hand that one year's residence in the State should be sufficient of qualify for franchise and that the present definition of "State subject" should be discarded all purposes. It is not within the scope of the Conference to consider the appropriateness of the existing definition of "State subject" for general purposes. As regards qualification for the franchise, however, though there is every reason for upholding the prior claims to State subjects in general, the present definition appears to be unduly rigid; domicile in the state for a thousand years cannot according to the definition qualify a man to become a hereditary State subject. It would seem both unfair and inexpedient to deny the right of franchise to a man who has so far identified himself with local interests as to make his domicile in the State over a consecutive period of five years. As one member of the Conference has aptly expressed it, man can beret sons, he cannot beget his ancestors.

Some Members have given their opinions in favour of an experiment in the direction of female suffrage. But the general consensus of opinion is against this departure. In view of the backward condition of female education it appears advisable to defer for the present any proposal of this nature.

In regard to disqualifications for elected membership of the Assembly, it is recommended that the same standards as those proposed above in the case of franchise should be adopted with the following additions or modifications:

  1. Persons below the age of 25 (instead of 21 as in the case of franchise).
  2. Persons not on the electoral roll.
  3. Persons unable to read, write and understand the court language, namely Urdu.
  4. Persons actually in the service of Government.
  5. Dismissed Government servants, provided that the disqualification in this respect may be removed by the specific orders of Government.
  6. Persons, other than first class State subjects as now defined who have not been domiciled in the State for a consecutive period of fifteen years, immediately preceding the time of the election.
In the case of this letter disqualification, the remarks already made in connection with the question of State subjects should suffice.

It will be observed from the proceedings that there has been a fair approach to unanimity in regard to the question of disqualifiations.

COMPOSITION OF THE ASSEMBLY

Elected Members

In the absence of detailed information in regard to the number of persons likely to be qualified to vote on the basis suggested above, a rough guide can be afforded by the population statistics as recorded in the Census which has recently taken place. Once again it may be pointed out that the proposals put forward are only tentative and may be found to require considerable modification when statistics have been collected showing the approximate voting strength of various classes and communities.

The total population of the State is recorded as roughly 36-1/2 lakhs. Excluding the Poonch and Chenani Jagirs and certain distinct Frontier Illaqas such of as Hunza and Nagar which are in certain respects withdrawn from the scope of the ordinary State machinery, the population comes to approximately 32 lakhs. If Ladakh and Gilgit proper are also excluding there would be a further reduction of about 2-1/4 lakhs. The general feeling of the Conference is that Ladakh and Gilgit proper should not be excluded for the purposes of the Assembly. It is true that these tracts are comparatively backward, also that they are cut off at certain times of the year; they from however, an integral part of the State for ordinary purposes and except in the winter months communications are open.

It is clearly undesirable that the Assembly should be composed of so large a number of members as to become unwieldy. A working basis in regard to the number of elected members would seem to be provided by the allotment of one such member to every lakh of the population. On this basis there would be 32 elected members in all.

JOINT OR SEPARATE ELECTORATES

One important question that arises is whether electorates should be separate or joint. It will be observed that there has been a general consensus of opinion at the conference in favour of separate electorates. Some members have pointed out that, although the establishment of separate electorates has some times been regarded as responsible for increasing communal tension in British India, the acute communal feeling which unhappily prevails in the State at the present time can certainly not be ascribed to this cause; it has been maintained that in the case of the Srinagar Municipality the introduction of joint electorates has enhanced the feeling of antagonism and distrust between the different communities. It would appear that in the existing state of tension, the institution of joint electorates must be regarded as a dangerous experiment. It is obviously advisable at the present time to avoid as far as possible all superfluous elements of danger. Separate electorates are accordingly recommended,

There has been a consensus of opinion on the point that there should be no plural voting. The place at which a voter should record his vote should depend upon the locality in which he normally resides at the time of the election.

In regard to the allocation of elected seats in the Assembly among the various communities widely different views have been put forward. It has been claimed on the one hand that at least 25 seats out of 32 should be allotted to Muslims, who number 75 per cent. Out of the population of the part of The State with which it is proposed that the Assembly should be concerned. On the other hand it has been represented that there should be two elected Hindu members to every one Muslim. And special claims have been but forward on behalf of the particular classes or communities, such as Sikhs and Rajputs and also on behalf of the depressed classes.

The two main communities are Muslims and Hindus. The population of these two communities stated in round numbers is as follows for the various portions of the State which it is proposed to take into consideration:
  Hindus Muslims
JAMMU PROVINCE
Jammu Wazarat excluding Jammu City 1,37,000 1,93,000
Jammu City 12,000 24,000
Kathua Wazarat 40,000 1,21,000
Reasi Wazarat 1,55,000 79,000
Udhampur Wazarat 1,17,000 1,56,000
Mirpur Wazarat 2,78,000 57,000
Total Jammu 7,39,000 6,30,000
KASHMIR PROVINCE
Southern Kashmir excluding Srinagar City. 5,75,000 20,000
Srinagar City 1,39,000 34,000
Northern Kashmir 5,43,000 11,000
Muzaffarabad 2,22,000 4,000
Total Kashmir 14,79,000 69,000
FRONTIER PROVINCE
Ladakh 1,53000 300
Gilgit Proper 31,000 1,000
Total 1,84,000 1,300
Grand Total 24,02,000 7,00,300

Buddhists who are almost entirely confined to the frontier districts of Ladakh amount to 39,000. Sikhs whose numbers are more or less equally divided between the provinces of Jammu and Kashmir, also come to 39,000. 

If population is strictly followed, Muslims, whose ratio works out at 75 per cent, should get 24 out of 32 elected seats and Hindus, who come to 22 per cent should be given 7, Budhists and Sikhs would hardly qualify for one seat between them.

The principle of "weightage" has, however, to be taken into account in order to safeguard the interests of minor communities. This principle has been fully recognised in British India. In the United Provinces for instance Muslims, whose number only a little more than 14 per cent of the population, have been given not less than 29 per cent of elected seats in the Legislative Council. In Bombay non-Muslims, whose numbers amount to nearly 79 per cent of the population, have been reduced in the matter of elected seats to a bare majority. Responsible Mohammadan opinion has teen expressed in favour of the principle of "weightage" being applied to the State Assembly provided that Muslims are allowed to retain an actual majority in the matter of elected seats.

A fair solution would appear to be provided by allowing to Hindus sufficient "weightage" to bring their number of elected seats in the Assembly upto 33-1/3 per cent Muslims would in this case be awarded a fraction over 60 per cent while Sikhs and Buddhists would each be given just over 3 per cent.

It has been claimed that not less than 4 seats should be allowed to Sikhs, or, failing that, two' one for Jammu and one for Kashmir. It is true that, as has already been remarked, the Sikh population is scattered over the two Provinces. It is also true that the behaviour of the Sighs has been exemplary during the recent disturbances and that they are fully deserving of consideration, but, as far as the State is concerned, they are relatively a very small community and it is difficult to allot them more than one elected seat without unduly affecting the interests of others. It is suggested that their aspirations might be met by the practice of including among the nominated members one Sikh member coming from that province to which the elected Sikh member does not belong. This should be sufficient to provide for the reasonable requirements of the community as the Sikh representative at the Conference has explained, the Sikhs are not striving for power in the State, they only desire that their voice should be heard. The only other alternative that seems possible is to increase by one the total number of elected members, this would of course disturb the general ratio.

In the case of the Buddhists one elected seat should suffice. As mentioned above, the Buddhist community is practically confined to one portion of the State and it is doubtful what their actual voting strength will prove to be.

Some difficulty is to found in deciding how effect is to be given to the "weightage" proposed for Hindus. It is true that the great bulk of the Hindu population belongs to the Jammu Province, but there are obvious objections in the way of allotting them a larger number of seats in that Province, than can be given to Muslims, who even in Jammu are more numerous shall Hindus. The most satisfactory solution appears to lie in giving the "weightage" its main effect in the Kashmir Province; although the Hindus in Kashmir are relatively small in numbers, they are a highly advanced community and it is to be expected that their population would suggest.

It is not proposed that any elected seats should be reserved for the depressed classes. In the census the depressed classes are recorded as Hindus, and there appears to be no sufficient reason for according them different treatment from that received by them in the Punjab, where no special reservation obtains.

It is recommended that the total number of elected seats should be 33 and that they should be distributed as follows:
 
  Muslims  Hindus  Buddhists  Sikhs
JAMMU PROVINCE
Jammu City 1 1 0 0
Jammu Wazarat 1 2 0 0
Kathua Wazarat 1 1 0 0
Udhampur Wazarat 1 1 0 1
Reasi Wazarat 1 1 0 0
Mirpur Wazarat 2 1 0 0
Total Jammu Province 7 7 0 1
KASHMIR PROVINCE
Srinagar City 3 2 0 0
Southern Wazarat 3 1 0 0
Northern Wazarat  3 1 0 0
Muzaffarabad 2 0 0 0
Total Kashmir Province 11 4 0 0
FRONTIER PROVINCE
Gilgit proper 1 0 0 0
Ladakh  1 0 1 0
Total Fontier 2 0 1 0
Total State 0 11 1 1

Here again there has been a great difference of opinion, the proposals put forward by various members for the proportion of nominated to elected seats vary between 25 per cent and 150 per cent.

It would seem a fair solution that the total number of nominated members should be equal to two thirds of the number of elected members, namely 22. and that in addition to these His Highness the Maharaja Bahadur should, if he sees fit to do so, appoint his ministers, not exceeding 5 in number; as ex-officio members. The total membership of the Assembly would thus be limited to 60 (33+22+5). In regard to the nominated members, not less than one third should be non-officials; apart from His Highness should have entire discretion in their matter of nomination. There has been a general consensus of opinion, however, expressed at the Conference that nomination should be so regulated as to provide as far as possible for the representation of interests which are not specially catered for in the elected membership, such for instance as Jagirdars and commercial interests.

If the above recommendations are adopted, there would be a clear erected majority and there would be a proportion of not less than two non-official members to the one official member.

PRESIDENT OF THE ASSEMBLY

It is recommended that the Assembly should be presided over by the Prime Ministers or such other Ministers as His Highness may be pleased to appoint for the purpose.

NUMBER AND PLACE OF MEETINGS

A part from any special meetings which it may be found necessary to call, it is recommended that there should be two regular meeting of the Assembly a year, one at Srinagar in the month of Assuj (September-October) when the budget proposals amongst other matters can be discussed, and one at Jammu in the month of Phagan (February-March) or such other time as may be convenient.

LIFE OF THE ASSEMBLY

The life of the Assembly should, it is recommended be fixed at three years in the first instance.

Rules relating to the number necessary to form a quorum and other matters of comparatively minor importance can be provided for suitable in the bye-laws.

It is recommended that the Assembly should have no power to propose an alteration in the enactment creating the Assembly unless the previous approval of His Highness is obtained through the President.

DISTRICT BOARD

Apart from the question in creating a Legislative Assembly the subject of District Boards and Municipalities has also been raised at the Constitutional Conference.

At present there are no District Boards in the State. There has been a general consensus of opinion expressed at the Conference in favour of a beginning being made in this matter in the following way.

Wazirs or District Officers should once every year call a meeting of all the Zaildars in their District. The Tehsildars and the Road Cess Overseer should also be present. The Wazir should make known the amount of funds available from the Road Cess Fund for expenditure in the Wazarat, he should ascertain from those present the requirements of the various Zilas and he should then proceed to make allotments after taking into consideration the views expressed. Zaildars should at the same time be given an opportunity to put forward their views in regard to other matters such as Schools, Medical Relief, Sanitation, etc.

In the case of districts in which distances are great and communications indifferent, such as for instance the Udhampur Wazarat which includes Kishtwar, Bhaderwah and Ramban, it may be difficult to summon Zaildars to District headquarters without causing them undue inconvenience; in such cases the Wazir should make a point of consulting Zaildars at convenient places when he proceeds on tour.

It has been agreed at the Conference that it is inadvisable to hold more than one such meeting a year at the headquarters. Of a Wazarat, as it is believed that, if the number of such meetings is multiplied, many Zaildars will be unwilling to attend. It has been pointed out that under present conditions Zaildars are put to much inconvenience in visiting District headquarters. because there is no suitable building in which they can be accommodated; this is a matter which should receive the attention of the State authorities.

MUNICIPILITY

The following views in regard to Municipalities have been' expressed and deserve consideration.

ELECTORAL 

It is considered that the electoral rolls should be revised in such a way as to make the numbers recorded thereon equivalent to about ten per cent of the total population of each Municipality. At present the number of voters appears to be considerably less than this in the case of Srinagar city.

SEPARATE ELECTORATES

In view of the opinions expressed in regard to the undesirable effects of joint electorates in the matter of communal tension it is suggested that the question of substituting separate electorates should receive attention.

NUMBER OF ELECTED MEMBERS

It is recommended that the proportion of elected members who now form 50 per cent of the total, should be slightly increased so as to provide for an elected majority. An increase in the total number of Municipal members does not appear to be desirable in the interests of efficiency.

EXTENSION OF POWERS

It is understood that the Municipal Committee of Srinagar has already put forward proposals to the Minister-in-Charge for an increase of powers, and that the matter is under the consideration of His Highness' Government; and early decision appears to be desirable.

NON-OFFICIAL PRESIDENT

The proposal that Municipalities should be presided over by a non-official is far from meeting with universal approval. No recommendation in this direction appears at present to be justified.

DELAY IN AWARDING COMPENSATION

It is represented that Municipal Committees at present allow great delay to occur in paying compensation for property acquired etc. Endeavours should be made to expedite the disposal of such cases.

(Sd) B.J. Glancy
President
Constitutional Reforms Conference

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