Jammu - Kashmir Facts Problems and Solution
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Monday, January 30, 2012
International Conspiracies behind J&K Imbroglio.
P.C.Dogra
Former
Director General of Police Punjab
Churchill called Hindus beastly people
with a beastly religion. In a meeting with Mountbatten, he described Muslims as
Britain’s allies and accused him of planning and organizing ‘the first victory
of Hindustan (He refused to call it India) against Pakistan by sending British
trained soldiers and British equipment to crush and oppress the Muslims in
Kashmir and that it was an act of gross betrayal”
British intention was to put in place a very
week federal structure of India
which will break in to many nations in no time. Mountbatten wanted to set up
independent Hyderabad in the belly of India, also wanted Maharaja of Kashmir to accede
to Pakistan.
But he was helpless at the hands of Sardar Patel who will not let his
machinations work and could tell him bluntly on his face. Western powers also
wanted to appease and are even now appeasing the Muslim Umma by placating Pakistan on Kashmir.
The presentation will delineate all such designs right from 1947 onwards.
We start with Edwina Mountbatten. It has
been revealed by Lady Pamela Hicks, the daughter of late Viceroy in her book
“India Remembered; A Personal Account of the Mountbattens during the transfer
of power” and later corroborated in an interview to Karan Thapar that it could
have been possible that Jawaharlal Nehru took the decision to refer Kashmir to
the United Nations under the advice of Mountbatten and that later used Edwina
Mountbatten’s emotional influence on Pandit ji for getting it through.
“Gilgit agency had been acquired by the
British from an extremely reluctant Maharaja Hari Singh on 60 years lease basis
in 1935. But towards the end of July 1947, it was returned to him. Then there
was a revolt against the Maharaja by Gilgit scouts led by a Scotsman Major
Brown. Christopher Thomas says in his book Fault Line in Kashmir that
“It is entirely possible that the British incited the revolt to ensure that
this strategically vital region came under Pakistan’s jurisdiction in the
expectation that Pakistan would cooperate in the Western defence pacts to block
Russian ambitions”
General Ismay Chief of staff to
Mountbatten as also Field Marshal Lord Montgomery were of the view that
“British strategy required the use of bases in the sub continent and that the
relations with the whole Mussalman block had to be considered” C.Das Gupta says
in ’War & Diplomacy in Kashmir’ “By August 1947, the British
authorities had determined that their strategic interests in the subcontinent
lay primarily in Pakistan. This was buttressed by the view that Britain’s relations with the ‘whole Mussulman
bloc’ would be jeopardised in the absence of close ties with Pakistan”
Lt. General L.P.Sen, the then Brigade Commander who led the first
counter offensive against the Pak forces has pointed out in his book ‘Slender
was the Thread’ that “Major General Akbar Khan who led the Pak tribals, was
a regular officer of the Pakistan army and had established his HQrs at
Rawalpindi in the same building where Pak army Hqrs had been located. How was it that the British C-in-C of Pak
army was not aware of it?” Bias is apparent from what Philip Ziegler says in Mountbatten-the
official biography that “Secretary of state for Commonwealth Relations
while spelling out the British approach observed “It would have been natural
for Kashmir to eventually have acceded to Pakistan on agreed terms, because of
her predominantly Muslim population”
What happened after a reference was made to the U.N? As per H.V.Hodson
from his book The Great Divide, Pt Nehru said “He was shocked to find
that power politics and not the ethics were ruling the United Nations and was
convinced that the United Nations organization was being completely run by the
Americans and that Senator Warren Austin, the American representative had made
no bones of his sympathy for the Pakistan cause. Similarly Mr Noel Baker, the
secretary of state for common wealth relations and leader of the United Kingdom’s Delegation had been as hostile
to India
as Warren Austin. The belief spread was that the United Kingdom wished to
please the cause of Muslim solidarity in the Middle East and that the United
states wished to rehabilitate their position visa-vis the Arabs after their
advocacy of partition of Palestine.”
Sardar Patel had always been opposed to any reference to the Security
Council. Indirectly hinting on the role of Mountbatten, Gen. Ismay and some
others, Patel told Arthur Henderson, British Under Secretary of state
“Unfortunately, it is my experience that the attitude of an average Englishman
in India is instinctively against us….We should never have gone to the UNO…At
the UNO, not only has the dispute been prolonged but the merits of our case
have been completely lost in the interaction of power politics….We were
terribly disappointed at the attitude of your delegation….it was we maintain,
the attitude of Noel Baker that tilted the balance against us. But for his
lead, I doubt if The USA and some other powers would have gone against us”
In 1953, Mr Adlai Stevenson the then
Governor of
Illinois (USA) met Sheikh Abdullah in Sri
Nagar. In August 1953, Manchester Guardian disclosed that he (Mr Stevenson)
“seems to have listened to suggestions that the best status for Kashmir could
be independence from both India
and Pakistan”
and that Sheikh Abdullah had been encouraged by Adlai Stevenson. “Sheikh was
suspected of planning a session of the constituent Assembly which instead of
ratifying the accession to India,
would declare the vale of Kashmir,
independent.” According to New York Times July, 1953 “Kashmir
valley would gain independence, possibly guaranteed by both countries and the
rest of the state would be partitioned between them roughly along the present
cease-fire line. It was said that John Foster Dulles, U.S Secretary of State
supported a solution of this nature”
Ex. US ambassador Dennis Klux has observed
in his book titled “Disenchanted allies” that in 1953, U.S. President Truman
endorsed the UN Commission suggestion of arbitration to solve Indo-Pak
differences on Kashmir. Pt. Nehru rejected it though in his meeting with John
Foster Dulles, he agreed that partition might be a better way to solve the
problem than the plebiscite”
Again in 1957-58, South Asia specialists
of the U.S.State Deptt, put major sources of India-Pak tensions–Kashmir, Indus water and arms race in to a single negotiating
basket for working out the solutions for all these problems. President Dwight
Eisenhower reacted enthusiastically to the proposal. Pt Nehru however did not
give a positive response.
Kennedy, the then US President decided to
send a team headed by Averall Harriman to the sub-continent. The British
dispatched a parallel mission headed by Common Wealth Relations Secretary
Duncan Sandys. Nehru scuttled the negotiations and wrote “To give up valley to Pakistan or to countenance its
internationalization, poses political and strategic problems for India
which render such solutions impossible”
State Deptt experts outlined yet another
solution ie joint India-Pakistan presence in the valley and partition of the
rest of Jammu and Kashmir
and sought President’s approval to step up U.S involvement. Kennedy agreed and
proposed former World Bank President Eugene Black to serve as the mediator.
Nehru how ever rejected the proposal.
Admittedly under USA
pressure, talks were held with Pakistan
in 1962- 63. Indian delegation led by
Sardar Sawaran Singh proposed modification of the cease-fire line in favour of Pakistan.
Six rounds of talks were held. How ever in 1963, Kennedy approved the release
of US-UK paper outlining elements of settlement which were as follows:
·
Giving both India and Pakistan a substantial position in
the vale
·
Ensuring India
access through the vale for defence of Ladakh.
·
Ensuring Pakistan’s interest in the head waters of Chenab river.
·
Ensuring some
local self rule in the vale and free movement of people to India and Pakistan and enhancing economic
development.
In April 1963 Ambassador Galbraith raised
the Kashmir issue twice with Pt. Nehru. Prime
Minister took a hard line against the partition of the valley and wrote to
Kennedy that “I am convinced that these ill considered and ill conceived
initiatives, how ever well intentioned they may be, have at least for the present
made it impossible to reach any settlement on this rather involved and
complicated question”
Stephen Philip Cohen gives the glimpses of
the US
strategy in his book ‘The Idea of Pakistan” that “American officials now seem
to accept facilitation as a legitimate and a useful role. The formula to deal
with such issues is not to wait until they are ripe for resolution or turn away
or to search for a definitive solution when none is available”
Strobe Talbot says in his book ‘Engaging India’ that “The first full cast session of the US-Indian dialogue took place in July 1998 at Frankfurt Air port. Jaswant was prepared to talk about his Govt. converting the line of control in to an international boundary”
Now let us talk about one much discussed personality ie Farooq Kathwari, a member of the influential Council on Foreign Relations. He is chairman of the Kashmir Study Group which he founded in 1996. Its members are all well up in the policy making higher echelons of the US Govt. It published a report, titled “Livingston Proposal: Kashmir, A Way Forward.” Also known as the Farooq Kathwari report, the document aims at diluting Indian sovereignty in the State of Jammu and Kashmir, envisages creation of two Kashmir entities - one each on either side of the LOC and each with its own government, constitution or a single Kashmiri entity with its own constitutional framework and Government. Indirectly, it is the US vision of settling the Kashmir dispute.
Praveen Swami in his article in Frontline
referred to the then
Chief Minister Farooq Abdullah's conclave with Farooq Kathwari whom he described as United States based secessionist leader and assessed it as part of a larger U.S. sponsored covert dialogue on Jammu and Kashmir. One can say that as a follow up to this, in March 1999 Indian Foreign Minister Jaswant Singh and his Pakistani counterpart Sartaj Aziz met at Colombo. The agreement, inter alia, suggested plebiscite in Jammu and Kashmir on regional/district basis, division of Jammu province along Chenab River on communal lines, “maximum possible autonomy to Kashmir and its adjoining areas” and “annexation” of the remaining areas of Jammu province and Ladakh region by India. Singh and Aziz were to meet again after a month to give concrete shape to this agreement. However we saw the Kargil invasion. Round about this time, Rand Corporation, considered to be a prominent Think Tank that influences the policies of USA published a report elaborating on various options for the settlement of Kashmir.
Chief Minister Farooq Abdullah's conclave with Farooq Kathwari whom he described as United States based secessionist leader and assessed it as part of a larger U.S. sponsored covert dialogue on Jammu and Kashmir. One can say that as a follow up to this, in March 1999 Indian Foreign Minister Jaswant Singh and his Pakistani counterpart Sartaj Aziz met at Colombo. The agreement, inter alia, suggested plebiscite in Jammu and Kashmir on regional/district basis, division of Jammu province along Chenab River on communal lines, “maximum possible autonomy to Kashmir and its adjoining areas” and “annexation” of the remaining areas of Jammu province and Ladakh region by India. Singh and Aziz were to meet again after a month to give concrete shape to this agreement. However we saw the Kargil invasion. Round about this time, Rand Corporation, considered to be a prominent Think Tank that influences the policies of USA published a report elaborating on various options for the settlement of Kashmir.
In his address to the United
Nations General Assembly in the autumn of 2002, Secretary General Kofi Annan
identified hostility between India
and Pakistan
as one of the most perilous threats to global peace and security. He ‘gladly’
acknowledged and strongly welcomed efforts made by ‘well placed’ U.N.
member-states to persuade the two countries to reduce tension. And that if another confrontation between
India and Pakistan threatened to ignite war, Annan warned “the international
community might have a role to play” Later a top US official source indicated
that during discussion in New York, Annan and US President George W. Bush “had
agreed on their hope to move beyond crisis management to real solutions on
Kashmir”
The US Embassy in Pakistan had prepared a goal paper
in 2002. It had fixed 2005 as the target year for solving the Kashmir issue by
achieving (A) Regular movement of civilian traffic across the LOC (B) Kashmir
politicians assume prominence in political discourse (C) Evolve a framework for
eventual political resolution of the Kashmir problem. In a way, it had started
happening with our Prime Minister’s desire to make the borders irrelevant and
Musharraf’s plan of demilitarization and joint governance.
What was Musharraf’s formula? He told reporters everywhere that “I came
out with a broad outline which included gradual demilitarization of the Line of
Control and Kashmiri cities; maximum self-governance on both sides of the Line
of Control; a joint governing mechanism for Kashmir; to include Pakistanis,
Indians and local Kashmiri leaders and most important a porous Line of Control…
I wanted to make the Line of Control irrelevant” This Pakistan-promoted option
had the heavy endorsement of Washington.
Again in a follow up to
Musharraf’s formula, former US President
Bill Clinton suggested a Northern Ire land’s Good Friday Agreement which
creates a broadly inclusive power sharing arrangements providing for equal
representation in the Govt for the pro-British (Unionists) and pro-Irish
(Nationalists) and the cross border
institutionalised framework.
The then U.S Commander General David
Petraeus had a strategy security review with Ahmed Rashid, an acknowledged
authority on Taliban and Afghanistan. Rashid projected his latest proposal,
called "grand bargain", central argument of which draws the same
connections between solving terrorism in Afghanistan
and solving Kashmir which President Obama has been advocating that Pakistan would be persuaded to stop supporting
terrorism if India can be persuaded
to solve Kashmir.
Go for a Kashmir solution for a ticket to UN
Security Council membership and fulfilling your
big power aspirations’ This is what . That was the broad message of
President Barack
Obama.
Bob Woodward's latest
book "Obama's War" gives the clearest insight into Obama's thinking
on the matter. Here top US
policy makers are shown mulling on defusing the Kashmir
situation as part of an exit strategy for US. "Why can't we have
straightforward talks with India
on why a stable Pakistan is crucial?", Obama is reported as musing at one
meeting. President Obama's strategy for dealing with Afghanistan and
Pakistan always needed a
settlement of Kashmir.
Bruce Riedel, author of
the Obama administration's Af-Pak strategy, has canvassed the centrality of the
Kashmir issue to peace and stability in the
region. In fact, the solution Washington has
in mind is on the same lines of what
Prime Minister Manmohan
Singh and Pakistan's
deposed military leader Pervez
Musharraf broadly agreed on. Riedel said before the scheduled visit of
President Obama to India
that he will quietly help Islamabad and New Delhi to get back to the deal, Musharraf and Singh had
negotiated.
S. Rajagopalan wrote
from Washington in The Pioneer dated April 2010 that "Pentagon has emerged
as an active lobbyist for more pressure on India to take Pakistan's concerns
more seriously and that Admiral Mike Mullen, the then Chairman of the Joint Chiefs of
Staff and the US
Govenment's the then prime interlocutor with the powerful Pakistani
Army Chief Gen.
Ashfaq Kayani, was for
"encouraging New Delhi to cooperate more
with Pakistan". Recently another columnist Siddharth Varadarajan wrote from Washington that US had moved from de-hyphenation to dual-hyphenation- “Whether valid or not, Obama administration and the rest of the world see a link between Afghanistan and the India-Pakistan relationship, between the ongoing military instability on the Afghanistan- Pakistan border and the unsettled relationship between New Delhi and Islamabad.
with Pakistan". Recently another columnist Siddharth Varadarajan wrote from Washington that US had moved from de-hyphenation to dual-hyphenation- “Whether valid or not, Obama administration and the rest of the world see a link between Afghanistan and the India-Pakistan relationship, between the ongoing military instability on the Afghanistan- Pakistan border and the unsettled relationship between New Delhi and Islamabad.
I shall end my presentation with two
quotable quotes from our Prime Minister that “Gilani is a man of peace” and
that Pak army wants peace with India.
Let us keep our fingers crossed. As discussed above, syndicate of Western
powers led by USA are
determined to foist upon us their diabolic designs on Kashmir.
We ought to be more watchful about the intentions of the world powers, build up
the military muscle, dominate the world economy, play the diplomatic cards with
confidence and the cleverness of Chanakya otherwise we will loose Kashmir which
will open the floods gates of secessionist activities across the country.
P.C.Dogra
Former
Director General of Police Punjab
Integration of Jammu Kashmir- A Constitutional & legal Process
Backdrop
Jammu & Kashmir, in legal terms of present
times, became an integral part of the Republic of India
in 1947. The Indian Independence Act
1947, of the Parliament of the United Kingdom that partitioned British India into
the two new independent dominions
of India and Pakistan received the royal assent on 18
July 1947, and the two new countries came into being on 15 August. This very Act authorized the rulers of the Princely States,
till then under the paramount power of the British, to accede to either of
the two dominions
On August 14, 1947, the Governor General made the
India (Provisional
Constitution) order adapting the Government of India Act 1935; as the interim constitution
of India
with the changes specified in the Act. Section 6 of the Act provided that
"an Indian State shall be deemed to have acceded to
the Dominion if the Governor General has signified his acceptance of an
Instrument of Accession executed by the Ruler. No last date was mentioned in
the Act or the instrument of Accession by which a ruler was supposed to sign
the accession Deed.
Maharaja Hari Singh, the
ruler of Jammu and Kashmir State, signed the same standard form of the
Instrument of Accession in October 1947, which the other Indian rulers signed
to accede to the then Indian Dominion. The Instrument of Accession was evolved
by the States Department, headed by Sardar Vallabh Bhai Patel, and was based
upon the principles that Cabinet Mission had stipulated for the accession of
the Indian States to the All India federation. No separate or special
provisions were incorporated in the Instrument of Accession signed by Hari
Singh and there was no precondition or agreement, accepted by the Government of
India to any separate and special constitutional arrangement, to the exclusion
of the other acceding States.
Soon after signing the
Instrument of Accession Maharaja Hari Singh issued a proclamation charging Sheikh Mohd. Abdullah to function as the Head of the Administration
with power to deal with the emergency arising out of Pakistani invasion.. On 5th March 1948, the Maharaja
issued another proclamation to replace the Emergency Administration by a
‘Popular’ Interim Government, pending the formation of a fully democratic
Constitution. This proclamation further desired that Council of Ministers shall
take appropriate steps, as soon as restoration of normal conditions has been
completed, to convene a National Assembly based upon adult suffrage, having due
regard to the principle that the number of representatives from each voting
area should, as far as practicable, be proportionate to the population of that
area. The Constitution to be framed by the National Assembly was supposed to
provide adequate safeguards for the minorities and contain appropriate
provisions guaranteeing for the freedom of conscience, freedom of speech and
freedom of assembly.
INTEGRATION PROCESS
After the accession of the States to
union of India,
their integration into viable administrative units and the institution of their
Constituent Assemblies proved more difficult a task than anticipated. In view
of these difficulties, the whole question of constitution making in the States
was considered in May 1949, at a Conference of the Premiers of the States and
the Union of States. The Conference of the Premiers decided not to wait until
the Constituent Assemblies in the States were convened and instead decided to
leave the task of the framing of the Constitution of the States to the
Constituent Assembly of India. 93 members were representing these states in the
Constituent Assembly that framed the constitution for whole of India. At least
Half of The members allotted to the Princely states were to be nominated by
rulers of these states. Jammu & Kashmir had to send 4 members to the
Constituent Assembly. In normal course two of them were to be nominated by
Maharaja Hari Singh, the Ruler and the remaining two were supposed to be
elected from the representatives of state legislature, Praja Sabha in this
case, for which election had taken place only in 1946.
The state
of Jammu and Kashmir
was under invasion. A war was being fought there and the case of this
aggression was taken to UNO by India,
under misguided belief of Prime Minister Jawahar Lal Nehru about the fairness
of western powers. So the situation was that a war was going on in the state of
Jammu Kashmir, the issue was in UNO and the state was under the administration
of SM Abdullah. Taking undue advantage of this situation several legal and
constitutional steps were taken to favour Sheikh Mohd. Abdullah.
On
27th of May 1949 PARA 4-A was added to
CONSTITUENT ASSEMBLY RULES saying, “Notwithstanding anything contained
in paragraph 4, all the seats in the Assembly allotted to the State of Kashmir
otherwise as the State of Jammu and Kashmir) may be filled by nomination and
the representatives of the State to be chosen to fill such seats may be
nominated by the Ruler of Kashmir on the advice of his Prime Minister.'"
This snatched the right to nominate members from the legal Ruler and Sheikh
Abdullah nominated all the four members from NC, three of them form Kashmir
valley and an uneducated member from Jammu.
Government of India,
as a legal and constitutional authority, was taking decisions with regard to
J&K.
On
Thursday, the 16th June 1949 Members from the state took the pledge and signed
the Register in Constituent Assembly. The members were Sheikh Mohd. Abdullah,
Mirza Mohd. Afzal Beg, Maulana Mohd. Syeed Masoodi and Shri Moti Ram Baigra.
With this began the politics of blackmail and intimidation that resulted in
delayed and limited constitutional appliance to the state. The purpose was to
exclude the state from constitutional arrangement evolving in the rest of
country and ensure creation of a semi independent Sheikhdom.
But in spite of these efforts Jammu Kashmir
continued to be part of Constitutional mechanism of Union of India.the modus
operandi of Sheikh Abdullah wasto complain, show annoyance, threaten to resign
from the Constituent Assembly of India and question the Accession of the state
itself in a manner that would impact Indian stand in UNO. The result was that the
process of integration that went on smoothly in rest of the country became
rather complicated in this case.
On 17th October, 1949 Article
306 A which later became Article 370 was debated and added to the constitution of
India. The motion read "That with reference to Amendment
No.379 of List XV (Second Week), after article 306, the following new article
be inserted: -
'306A.
(1) Not withstanding anything contained in this Constitution. (a) the
provisions of article 211A of this Constitution shall not apply in relation to
the State of Jammu and Kashmir.
(b) the power of Parliament to make laws for the State shall be limited to (i)
those matters in the Union List and the Concurrent List which, in consultation
with the Government of the State, are declared by the President to correspond
to matters specified in the Instrument of Accession governing the accession of
the State to the Dominion of India are the matters with respect to which the
Dominion Legislature may make laws for the State; and (ii) such other matters
in the said Lists as, with the concurrence of the Government of the State, the
President may by order specify;
Explanation :- For the purposes of
this article, the government of the State means the person for the time being
recognised by the union as the maharaja of Jammu and Kashmir, acting on the
advice of the Council of Ministers, for the time being in office, under the
Maharaja's Proclamation, dated the fifth day of March, 1948.
(c) the provisions of article 1 of
this Constitution shall apply in relation to the State; (b) such of the other
provision of this Constitution and subject to such exceptions and modifications
shall apply in relation to the State as the President may by order specify: Provided
that no such order which relates to the matters specified in the Instrument of
Accession of the State aforesaid shall be issued except in consultation with
the Government of the State: Provided further that no such order which relates
to matters other than those referred to in the last preceding proviso shall be
issued except with the concurrence of that Government.
(2)
If the concurrence of the Government of the State referred to in sub-clause (b)
(ii) or in the second proviso to sub-clause (d) of clause (1) was given before
the Constituent Assembly for the purpose of framing the Constitution of the
State is convened, it shall be placed before such Assembly for such decision as
it may take thereon.
(3) Notwithstanding anything in the
preceding clause of this article, the President may, by public notification
declare that this article shall cease to be operative or shall be operative
only with such exceptions and modifications and from such date as he may
specify:
Provided that the recommendation of
the Constituent Assembly of the State shall be necessary before the President
issues such a notification'."
The motion was adopted. Article 306A was added to the Constitution.
APPLICATION
of THECONSTITUTION TO JAMMU AND KASHMIR
The Constituent
Assembly formally approved the draft Constitution on November 26, 1949. On
January 26, 1950, the Constitution took effect, a day now commemorated in India as Republic Day. On the same
day president of India
issued THECONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 1950 thereby applying the
constitution of India to the
state of Jammu and Kashmir.
While this was happening on Sheikh Abdullah and NC continued their efforts to disrupt the complete integration. Their tirade against Maharaja Hari Singh continued unabated. And Hari Singh continued to make way for the devolution of power to the people of state in a legal, constitutional and democratic manner. He was forced to leave the state. On 9th June, 1949 he issued his last proclamation entrust to the Yuvaraj Karan Singh powers and functions in regard to the Government of the State. As regent of Jammu & Kashmir Karan Singh issued a proclamation on 25th November 1949 and accepted the new constitution drafted by the Constitution Assembly for the whole of India replacing the Government of India Act, 1935.
Referring to terms of
the proclamation of the Maharaja dated 5 March, 1948 in regard to the convening
of a constituent assembly for the state, Yuvraj Karan singh on Ist May1951
issued proclamation for convening Constituent Assembly consisting of representatives
of the people, elected on the basis of adult franchise for the purpose of
framing a constitution for the State of Jammu and Kashmir.
Sheikh Abdullah and
National Conference continued to make several justified demands and through
negotiations with Jawahar Lal Nehru an agreement is arrived at on July 24, 1952
between NC headed by Sheikh Abdullah and Jawahar Lal Nehru, the Prime Minister
of India which provided
a)in accordance with
Article 5 of the Indian Constitution , persons who have their domicile in Jammu
and Kashmir shall be regarded as citizens of India but the State legislature
was given power to make laws for conferring special rights and privileges on
the ‘state subjects’ in view of the ‘State Subject Notification’ of 1927 and
1932: the State legislature was also empowered to make laws for the ‘State
Subjects’ who had gone to Pakistan on account of the communal disturbances of
1947, in the event of their return to Kashmir;
iii) as the President
of India commands the same respect in the State as he does in other Units of
India , Article 52 to 62 of the Constitution relating to him should be
applicable to the Stat . It was further agreed that the power to grant
reprieve, pardons and remissions of sentences etc.; would also vest in the
President of India;
iv) the Union
Government agreed that the State should have its own flag in addition to the
Union flag, but it was agreed by the State Government that the State flag would
not be a rival of the Union flag; it was also recognized that the Union flag should
have the same status and position in Jammu and Kashmir as in the rest of India
though the
Sadar-i-Riyasat was to be elected by the State Legislature, he had to be
recognized by the President of India before his installation as such; in other
Indian states the Head of the States was appointed by the President and was as
such his nominee but the person to be appointed as the Head, had to be a person
acceptable to the Government of that State; no person who is not acceptable to
the State Government can be thrust on the State as the Head. The difference in
the case of Kashmir lies only in the fact that
Sadar-i-Riyasat will in the first place be elected by the State Legislature
instead of being a nominee of the Government and the President of India.
vi) with regard to the
fundamental rights, some basic principles agreed between the parties were
enunciated; it was accepted that the people of the State were to have the
fundamental rights. But in the view of peculiar position in which the state was
placed in particular Sheikh Abdullah’s land reforms programmes , the whole
chapter relating to “ Fundamental Rights” of the Indian Constitution could not
be made applicable to the State, the question which remained to be determined
was whether the chapter on fundamental rights should form a part of the State
Constitution or the Constitution of India as applicable to the State;
vii) with regard to the
jurisdiction of the Supreme Court of India, it was accepted that for the time
being , owing to the existence of the Board of Judicial Advisers in the State ,
which was the highest judicial authority in the State , Supreme Court should
have only appellate jurisdiction;
viii) there was a
great deal of discussion with regard to the “Emergence Powers”. The Government
of India insisted on the application of Article 352 , empowering the President
to proclaim a general emergency in the State ; the State Government argued that
in the exercise of its powers over defence ( Item1 on the Union List), in the
event of war or external aggression , the Government of India would have full
authority to takes steps and proclaim emergency but the State delegation was,
however , averse to the President exercising the power to proclaim a general
emergency on account of internal disturbance.
In order to meet the
viewpoint of the State’s delegation, the Government of India agreed to the
modification of Article 352 in its application to Kashmir
by the addition of the following words;
“but in regard to
internal disturbance at the request or with the concurrence of the government
of the State” At the end of clause
(1).
Delhi Accord invalidated
A serious opposition to S. M. Abdullah had
developed in Jammu
under the Praja Parishad, which launched a political movement with Shri Prem
Nath Dogra as its leader. Ladakh also
rouse against sheikh Abdullah. Dr. Syama Prasad Mukherjee was the President of
Jan Sangh Party at the national level who commented that there was, or would
soon be, “two Constitutions, two flags and two Prime Ministers in one country
and cannot be tolerated”. The popular slogans of the Praja Parishad agitators
were – “ek desh mein do vidhan; ek desh mein do nishan; ek desh mein do pradhan
nahi chalen gay” (in one country , two Constitutions; in one country two flags
, in one country two Prime Ministers will not be tolerated). It was a strong
peoples movement with a tremendous
support in rest of the country. Sheikh Abdullah started demonstrating arrogance and began to defy
Union of India. Situation turned out of control and Prime Minister Jawar Lal
Nehru , the close friend of Sheikh was forced to see the later dismissed and
arrested in August 1953. A case, known as Kashmir
conspiracy case was registered against Sheikh Abdullah.
National Conference continued to be in power
in the state with Bakshi Ghulam Mohamad succeeding as Prime Minister. Thus the
agreement that was reached between Sheikh Abdullah and Pt. Nehru as thrown into
the dustbin of history with the dismissal and arrest of its architect. On 20 August 1952, the
state Constituent
Assembly
under the leadership of Sheikh Abdullah unanimously adopted a resolution
piloted by Mr. D.P. Dhar terminating the monarchy in the State. With the
abolition of monarchy, all or any conditions attached by the monarch for
himself stood discharged, resulting in the constitutional merger of the State
the same day. The status of Raj Pramukh (Regent) was switched over to an
elected Sadar-e-Riyasat. The Accession was ratified by the Constituent
Assembly.
The J&K constitution was launched
formally on 26 January 1957. Section 3 unequivocally states that “J&K is
integral part and shall remain integral part of India ”. This provision clearly
provides in the First Schedule, item no.15 of Article 1 of the
Constitution of India, which includes J&K as one of the
States of the Union of India under Part XXI of the Constitution of
India, which deals with “Temporary, Transitional and Special provisions”. The
State of Jammu and Kashmir
was included in 1st Schedule as 15th state.
On February 15, 1954 the
Constituent Assembly adopted the following resolution unanimously: Resolved
that "(a) having adopted the report of the drafting committee thisday, the
1 5Ih
February,
1954 and (b) having thus given its concurrence to the application of the
provisions for the Constitution of India in the manner indicated in the
Annexure to the aforesaid report this Assembly authorizes the Government of
The State to forward a copy of
the said Annexure to the Government of India for appropriate action". by
the 1954 Order, the Parliament could thereafter make laws in respect of all
matters specified in the Union list. the Article was further modified in its
application to the State vide C.O. No. 66 dated 28th September,
1963, enabling Parliament to make laws for the
State in respect of matters in
the Concurrent List also.
With the passage of
time, The Constitution ( Application
to Jammu and Kashmir) Order, 1954 was
promulgated by the President of India in consultation with the Government of
J&K, regulating the constitutional status of the State; and apart from it
several Central laws got extended to the J&K State and even the
nomenclature of Sadar-i-Riyasat and Prime Minister were changed to Governor and
Chief Minister on March 30, 1965.
The list of Constitution Orders applying various
provisions of the Indian Constitution to the State given below:-
1. The
Constitution (Application to J&K order, 1954 C.O. 48 Dated 14.5.1954.
2. The
Constitution (Application to J&K Amendment Order,
1956 C.O. 5 1 dated 11.2.1956.
The
constitution (Application to J&K) Amendment
Order, 1958 C.O. 55 Dated 16.1.1958.
The
Constitution (Application to J&K) Second
Amendment Order, 1958 C.O. 56 dated 26.2.1958.
The
Constitution (Application to J&K) AmendmentOrder
1959 C.O. 57 dated 9.2.1959.
The
Constitution (Applicationto J&K)SecondAmaadment
Order 1959, C.O. 59 dated 23.4.1959.
The
Constitution (Application to J&K) Amendment
Order 1960, C.O. 60 dated 20.01.1960.
The
Constitution (Application to J&K) Second
Amend ment Order 1960, C.O. 61 dated 22.6.1960
The
Constitution (Application to J&K) Amendment
Order 1961, C.O. 62 dated 2.5.1961.
The
Constitution (Application to J&K) Amendment
Order 1963, C.O. 66 dated 28.9.1963.
The
Constitution (Application to J&K) Amendment
Order 1964, C.O. 69 dated 6.3.1964
The
Constitution (Application to J&K) Second
Amendment Order 1964, C.O. 70 dated 2.10.1964.
The
Constitution (Application to J&K) Third
Amendment Order 1964, C.O. 71 dated 21.11.1964.
The Constitution
(Application to J&K) Amendment
Order 1965, C.O. 72 dated 17.5.1965.
The Constitution
(Application to J&K) Second
Amendment Order 1965, C.O. 74 dated 24.11.1965.
The
Constitution (Application to J&K) Amendment
Order 1966, C.O. 75 dated 29 6.1966.
The
Constitution (Application to J&K) Amendment
Order 1967, C.O.
76 dated 13.2.1967.
The
Constitution (Application to J&K) Amendment Order 1967,
C.O. 77 dated
5.5.1967.
The
Constitution (Application to J&K) Third Amendment Order 1967,
C.O. 79 dated
11.8.1967.
The constitution'(Application
to J&K ) Fourth Amendment Order 1967, C.O.
80 dated 26.12.1967.
The
Constitution (Application to J&K) Amendment Order 1968,
C.O. 83 dated
9.2.1968.
The
Constitution (Application to J&K) Amendment Order 1969,
C.O. 85 dated
17.2.1969.
The
Constitution (Application to J&K) Second Amend ment Order 1969,
C.O. 86 dated
3 1.3.1969.
The
Constitution (Application to J&K) Amendment Order 1971,
C.O. 89 dated
24.8.1971.
The
Constitution (Application to J&K) Second Amend ment Order 1971,
C.O. 90 dated
8.11.1971.
The
Constitution (Application to J&K) Third Amendment Order 1971,
C.O. 91 dated
29.11.1971.
The
Constitution (Application to J&K) Amendment Order.1972, C.O. 92
dated 24.2.1972.
The Constitution
(Application to J&K) Second Amendment Order 1972,
C.O. 93 dated
6.5.1972.
The
Constitution (Application to J&K) Third Amendment Order 1972,
C.O. 94 dated
2.8.1972.
The
Constitution (Application to J&K) Fourth Amendment Order 1972,
C.O. 95 dated
10.8.1972.
The
Constitution (Application to J&K) Amendment Order 1974,
C.O. 97 dated
1.5.1974.
The
Constitution (Application to J&K) Second Amendment Order 1974,
C.O. 98 dated
26.6.1974.
The
Constitution (Application to J&K) Amendment
Order 1975, C.O. 100
dated 29.6.19.75.
The
Constitution (Application to J&K) Second
Amendment Order 1975, C.O.
101 dated 23.7.1975;
The
Constitution (Application to J&K) Amendment
Order 1976, C.O. 103
dated 2.3.1976.
The
Constitution (Application to J&K) Second
Amendment Order 1976, C.O.
104 dated 25.5.1976.
The
Constitution (Application to J&K) Third
Amendment Order 1976, C.O.
105 dated 12.9.1976.
The Constitution
(Application to J&K) Fourth
Amendment Order 1976, C.O.
106 dated 3
1.12.1976.
The
Constitution (Application to J&K) Amendment
Order 1977, C.O. 108
dated 31.12.1977.
The
Constitution (Application to J&K) Amendment
Order 1985, C.O. 122
dated 4.6.1985.
The
Constitution (Application to J&R) Second
Amendment Order 1985, C.O.
124 dated 4.12.1985.
The
Constitution (Application to J&K) Amendment
Order 1986, C.O. 129
dated 30.7.1986.
First election to the
J&K Legislative Assembly under new constitution were held in March 1957 (NC
bagged 68 out of 75 seats). On 26 February 1958 Jurisdiction
of the C&AG was extended and Provisions relating to the All India Services
applied to the State.
In 1959 State Assembly
unanimously decided to seek amendment of the State constitution to provide for
the extension of the jurisdiction of the Election Commission of India and the
Supreme Court over the J&K State.20 January 1960 Provisions relating to appeal to Supreme Court by special leave and
Election Commission's jurisdiction was extended over the State elections.
From 17-18 February 1962 Second General elections in J&K held
(NC got 70 seats). 65% voters cast their ballot.
On 21 December 1964 Article
356 was applied t ensure that President's Rule can be imposed in the event of
the failure of State constitution. The nomenclature of Sadar-e-Riyasat and
Wazir-e- Azam were changed to Governor and Chief Minister in the State
Constitution on 10 April 1965. Sixth Amendment of the J&K Constitution
provided for the substitution of Sadr-e-Riyasat by Governor and of the Prime
Minister by Chief Minister.
5-6 March 1967 Third Assembly elections held. Congress secured
61 seats followed by the NC (Bakshi) with 8 seats. 59% voters cast their
ballot. 8 February 1972 Fourth
Legislative Assembly elections held. Congress secured 58 seats. J&K
Jamaat-e-Islami, contesting elections for the first time, won 5 seats. 62%
voters cast their ballot.
INDIRA –Abdullah Accord
After the defeat of Pakistan and emergence of Bangladesh situation in the this part of the world had changed significantly. These changes had an impact on J&K also. Sheikh Abdullah demonstrated his willingness to join mainstream. After prolonged parleys , on 13 November 1974 Kashmir accord signed between Sheikh Abdullah and Mrs. Indira Gandhi (Beg-Parthasarthy Accord). Section 3 of this accord said, “Where any provision of the Constitution of India had been applied to the State of Jammu and Kashmir with adaptations and modifications, such adaptations and modifications can be altered or repealed by an order of the President under Article 370, each individual proposal in this behalf being considered on its merits; but provisions of the Constitution of India already applied to the State of Jammu and Kashmir without adaptation or modification are unalterable.
Section 4 of it says “With
a view to assuring freedom to the State of Jammu and Kashmir to have its own
legislation on matters like welfare measures cultural matters, social security,
personal law and procedural laws, in a manner suited to the special conditions
in the State, it is agreed that the State Government can review the laws made
by Parliament or extended to the State after 1953 on any matter relatable to
the Concurrent List and may decide which of them, in its opinion, needs
amendment or repeal. Thereafter, appropriate steps may be taken under Article
254 of the Constitution of India. The grant of President's assent to such
legislation would be sympathetically considered. The same approach would be
adopted in regard to laws to be made by Parliament in future under the Proviso
to clause 2 of the Article. The State Government shall be consulted regarding
the application of any such law to the State and the views of the State
Government shall receive the fullest consideration.”
Section 5 made a
significant point. It says, “As an arrangement reciprocal to what has been
provided under Article 368, a suitable modification of that Article as applied
to the State should be made by Presidential order to the effect that no law
made by the Legislature of the State of Jammu and Kashmir, seeking to make any
change in or in the effect of any provision of Constitution of the State of
Jammu and Kashmir relating to any of the under mentioned matters, shall take
effect unless the Bill, having been reserved for the consideration of the
President, receives his assent; the matters are:
(a) the appointment,
powers, functions, duties, privileges and immunities of the Governor, and
(b) the following
matters relating to Elections namely, the superintendence, direction and
control of Elections by the Election Commission of India, eligibility for
inclusion in the electoral rolls without discrimination, adult suffrage and
composition of the legislative Council, being matters specified in sections 138,
139 140 and 50 of the Constitution of the State of Jammu and Kashmir.
6. No agreement was
possible on the question of nomenclature of the Governor and the Chief Minister
and the matter is therefore, remitted to the Principals.
24 February 1975 The Indian
Prime Minister said 'Clock can't be put back'. On behalf of the Kashmiri
leadership the NC reiterated that the accession of the State of J&K is not
an issue anymore. On 25th February 1975 Sheikh Abdullah took over as the Chief Minister with the
support of Congress.
Soon after assuming
office after winning what is being cherished as the fairest election by even
opponents of India,
the NC government constituted a committee to look into the so called erosion of
state autonomy under the chairmanship of then deputy chief Minister DD Thakur. The
three member committee headed by DD Thakur had G.N. Kouchak
and GM Shah as its other members. They were asked to look into the issue of
erosion of what they called state autonomy after 1953. The Committee presented two reports; while DD
Thakur report described the application of all the Central laws beneficial for
the people of the state and the Kouchak—Shah Report talked of erosion but
Sheikh Abdullah accepted DD Thakurs recommendations.
Even the autonomy report of NC
during Farooq Abdullah’s time, while asking for autonomy, noted, “Not all these
Orders can be objected to. For instance none can object to provision for direct
elections to Parliament in 1996, delimitation of Parliamentary
constituencies, etc. It is the principle that matters. Constitution limits are
there to be respected, not violated.”
since 1975, 18 Central laws including POTA were extended to
the state in the NC regime . it found no objection to the application of
any article of Constitution of India
that took place after 1953.
We therefore see that the state of Jammu and Kashmir has continued a process of
constitutional integration with the union of India. This process may have been
slow and long drawn as compared to other state, but it is irreversible. This
process needs to be accelerated so that the ultimate objective of complete
integration as promised by leaders including
Prime Minister Jawahar Lal Nehru during the debates in constituent
Assembly and subsequently in Parliament also. The unnecessary delay is creating
avoidable confusion and doubts in the minds of vulnerable sections of the state
population.
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