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Rai Bahadur Pt. R.C. Kak, 
Prime Minister Jammu & Kashmir State 
to Mirza Afzal Beg

Legal Document No 88

Letter No. 16-CC/46 D.O. Dated 12.2.46.

My dear Mr. Beg,

I write to acknowledge receipt of your demi-official letter No. 11-P/46, dated 15th January 1946. The various matters you have raised are dealt with in the following paragraphs which, I might mention, embody the views I have expressed to you from time to time in regard to these matters.

1. Right to Vote in the Assembly. If a Minister has the right to express and urge his point of view in the Council but if the decision of the majority goes against him it naturally follows that he will accept and endorse the policy of the Government of which he is a member. The amendment to situation the Constitution Act quoted by you was made, as you knot, with the sole object of meeting the situation arising out of the ruling given by the President, Praja Sabha, to the effect that by virtue of your and Wazir Gangaram's appointment as Ministers the elected seats in the Assembly held by you had become vacated. The amendment preserved your status as non official members of the Praja Sabha, but has no relation whatever to the question of Ministers voting in the Sabha Sir B.N. Rau's opinion was that you and Wazir Gangaram should be debarred from voting, but that opinion had no sanction behind it, and hi practice would involve serious difficulties. I am authorised to inform you that there was no question at any time of the Ministers appointed by His Highness from amongst the members of the Praja Sabha being given the option to vote in the Praja Sabha independently of the decision of the Government and no such meaning can be read either into His Highness's Message to the Praja Sabha dated 2nd October, 1944, or into the amendment to Constitution Act referred to by you

2. With regard to the question of Secretariat as you are aware, for the last several years, the Secretariats have been of a composite character and each Minister has to deal with several Secretaries and Secretariats. So long as the, number of Ministers coincided with that of Secretaries, though an anomalous one, could continue without much difficulty, but with the increase in the number of Ministers its inherent defects became immediately noticeable. When you mentioned the matter to me, I explained how undesirable it would be to create and retrench Secretariats as circumstances necessitated increase or decrease in the number of Ministers, I added that in British Indian Provinces and in certain Indian States, Secretariats remained constant while the number of the Ministers, varied as circumstances demanded. When the Secretariats were reorganised in 1939 and the posts of Secretaries were made tenure appointments, the allocation of departments among the Secretariats no longer continued to be identical with the portfolios the Ministers who controlled them. In the circumstances the logical course would have been to combine the Secretariats for purposes of administration though they might continue to function under the Ministers in respect of the performance of their appointed duties. I however offered, as a purely temporary measure, to place under you the Public Works Secretariat with either the Secretary or the Assistant Secretary. You preferred the Secretary for all purposes in the same manner as other Secretariats where under other Ministers. You accepted the suggestion but pressed that the establishment in other Secretariats dealing with the departments under you should also be transferred to this Secretariat. This however, would have meant going back to the system which had been discarded in 1939 after detailed consideration, and it was therefore, impracticable when the order was drafted, to implement the suggestion made by me. The Chief Secretary Informed me that he understood that the arrangement would not be acceptable to you. The only solution, therefore, was the logical one, namely that of placing all Secretariats for purposes of administration under one authority. A proposal divas accordingly submitted to Council and received the support of the other Ministers. Orders have since been passed and your position is exactly that of your colleagues with reference to the Secretariat. Moreover you have a Personal Assistant which the other three Ministers have not.

3. Delegation of powers under the Municipal Act. The reason why this case has not been put up to the Council is that the Law Department has not accepted your view that powers can be delegated to you as proposed, under the existing provisions of the Act. I have, however, asked the Chief Secretary to submit the case to Council where your proposal and the objection of the Law Department can be discussed. In any case it appears to me, there should be no difficulty in Disposing of these cases in accordance with the existing provisions of the Municipal Act even if it is assumed, as you assume, that your predecessor exercised powers which he was not Entitled to exercise under the law. It is conceivable that these Provisions lay down a procedure entailing unnecessary work

On the Council but that cannot be a sufficient reason for holding up disposal. As a matter of fact, when in Srinagar, you spoke to me on this subject you remarked that you would be compelled to send the cases to Council, I replied that it was open to you to do so. As there is an Ad Hoc Committee considering further amendments to the Municipal Act, may I suggest that this Committee might consider any amendments. in regard to the sections referred to in your letter, should the Council find on consideration, that the Law Department's. Objection to your proposal is insuperable.

4. Enforcement of Rule 50 in certain parts of the State Magistrates and Police Officers powers which are vested in them by statute, rule or orders of Government. The purpose for which they are armed with these powers is that they should be able to discharge their primary responsibility, viz. ensuring the maintenance of law and order and preventing breaches of peace, without being obliged in each case and on each occasion to ask for instructions. In this behalf there is no difference in law and practice as between this state and anywhere else. So far as the question of securing information with regard to happenings in the State is concerned, you get information like other Ministers, since like them you are supplied with police diaries every day. In addition, whenever you have sought for information or explanation from me, I have readily furnished it to you to the best of my knowledge. It is not possible to lay down that the Magistrates and the Police must refrain from taking action in the discharge of their responsibility without previous approval of higher authorities. In fact, though, Law and Order is within my individual sphere of responsibility, even I often receive information only after action has been taken by the Magistrates and the police.

So far as the enforcement of emergency laws is concerned' discretion to enforce them rests with the District Magistrates. It is only when they find that the ordinary processes of law are inadequate to deal with the actual outbreak of disorder in a particular place, that they have recourse to emergency measures. This applies to your Constituency as to other places, and this State is not unique in the application of such measures in given circumstances. Even where such laws are in force meetings can be held and have been held in some you yourself have participated and processions taken out with the permission, of the competent Magistrate, who when considering request for such permission has to satisfy himself that there will be no breach of the peace if the permission asked for is granted.

5. Distribution of controlled commodities....You have made passing reference to the question of the distribution of controlled commodities. There have been and I dare say may still be shortcomings in distribution but things have improved considerably in recent months. Any suggestions received from any quarter regarding improvement of control arrangements have been practicable. Any suggestion you might make which is generally acceptable and will work in practice will have my full support.

6. You have referred to his Highness massage to the Praja Sabha dated 2nd October, 1944. It must be the endeavour of all of us to ensure that the intention underlying the message should attain fulfillment. To achieve this object we have all to work together and it is hardly necessary form. to add that the measure of our success will be in proportion to the spirit of goodwill and accommodation we bring to the common task.

Yours sincerely,
Sd /- R. C. Kak

The Hon'ble Mirza M.A.Beg, 
Public Works Minister, 
Jammu.

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