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Pre-1953 constitutional status: Its meaning and implications

Pre-1953 constitutional status: Its meaning and implications

Author: Hari Om
Publication: Organiser
Date: December 28, 2003

The National Conference reiterated that New Delhi has to recognise the genuine aspirations of the people (read Kashmiris) and agree to an arrangement which given them pride in their Kashmiriyat and a mechanism to further their aspirations while remaining part of the Indian Union. In effect, it has asked the Central Government to grant to Jammu and Kashmir what it calls the pre-1953 constitutional status in order to win over the hearts of the "alienated Kashmiris", end the menace of terrorism in the State, solve the 56-year-old "Kashmiri problem" and forge a lasting peace in South Asia.

Will the restoration of the pre-1953 constitutional position strength democracy in Jammu and Kashmir or redress the grievances of the Kashmiris and re-empower them? A cursory scrutiny of the political system as it existed in Jammu and Kashmir prior to the dismissal and arrest of Sheikh Abdullah on August 9, 1953, suggests that it will not. On the contrary, this restoration will-apart from emboldening the believers in the concept of Jammu and Kashmir's segregation from India-at once subvert all democratic institutions, deprive the common people of whatever civil liberties and political rights they have enjoyed so far, fetter the Press and the judiciary and re-establish a local oligarchy. In addition, this would automatically mean committed judiciary and committed Sadar-e-Riyasat (Governor). The fundamental reason: Such a drastic return will re-arm the council of ministers with absolute, unbridled executive, legislative and judicial powers.

It needs to be underlined that between September 7, 1939 and January 26, 1957, the state ruler and the ruling elite derived their authority from the Jammu and Kashmir Constitutional Act (JKCA) of 1939. The ruler, Hari Singh, had enacted this Act to conciliate Sheikh Abdullah and his supporters. They had been demanding since 1931 the replacement of autocracy with democracy. Although an Assembly of 75 elected and nominated members was set up in accordance with the provisions of the Act of 1939, Sheikh Abdullah and his colleagues continued their protest. In fact, National Conference repudiated outright the JKCA of 1939 and declared that they would not withdraw their struggle until a "responsible government" had been established in Jammu and Kashmir.

The Naitonal Conference chief and his colleagues, including Mirza Afzal Beig, opposed the JKCA of 1939 on seven counts. One, it contained provisions which obstructed the formation of a responsible government and facilitated the domination and exploitation of the people. Two, it was not framed by a Constitutent Assembly elected on an adult franchise or a franchise which approximated to it as nearly as possible, but by the ruler had his henchmen. Three, it recognised the ruler and not the people as the "fountain head of all essential attributes of sovereignty". Four, it did not recognise the "doctrine of supremacy of the legislature over the executive". Five, it did not provide for an independent judiciary. Six, it did not grant freedom to the Press by repealing the highly obnoxious and primitive Jammu and Kashmir Press and Publication Act (JKPPA) of 1932 under which the ruling elite had the power to seize any Press and fine the press for what it could construe as a "seditious" writing. And, finally, it, like the Indian Councils Act of 1909 and 1919 and the Government of India Act of 1935, introduced communal electorates.

When despite their five-year-long struggle, Hari Singh did not introduce any democratic principles, Sheikh Abdullah and other pro-democracy leaders stepped up their efforts in order to seek the withdrawal of the JKCA of 1939. So much so, they started in 1946 "Quit Kashmir Movement". In the 1946 Quit Kashmir Movement, the National Conference cadres openly defied the ruler's authority, confronted police several times, attacked police stations and all other symbols of the government, demanded the dethronement of Hari Singh and the estbalishment of a genuinely-elected people's government. Order was restored only after the police and the army swung into action and imprisoned Sheikh Abdullah and other prominent Naitonal Conference leaders on the charge of "sedition".

It was under these circumstances, and in the wake of full-scale war with Pakistan, that Jammu and Kashmir acceded to the Indian Dominion on October 26, 1947. Ironically, the state's accession and Sheikh Abdullah's appointment as emergency administrator at Jawaharlal Nehru's behest in the same month did not ameliorate the lot of the people in any way. For, Sheikh Abdullah, rather than repealing the JKCA of 1939, chose to exploit it to consolidate his own position, marginalise his senior colleagues like Bakshi Ghulam Mohammad, Ghulam Mohammad Sadiq, Mohi-ud-Din Kara and Maulana Masoodi and put down his other political rivals in Jammu, Kashmir and Ladakh. He also exploited to the hilt the JKPPA to muzzle the Press. Take, for example, a fine of Rs. 1,000 against the Jammu-based paper, The Kashmir Mall, for the simple reason that it published on February 8, 1952, an article, entitled "Kansa rule and atrocities on children a good omen". What was the charge agianst the said paper? The charge was that the impunged article contained details of atrocities the police and the army had perpetrated on the students of the GGM Science College and schools in Jammu between January 15 and February 7, 1952, as also a warning that such brutal actions against children, including girl students, would only lead to a revolt against the "cruel government of Sheikh Abdullah". The only fault of the Jammu students was, it would not be out of place to mention here, their protest against the decision of Sheikh Abdullah to place the National Conference flag side by side with the national tri-colour in the GGM Science College. In short, the Sheikh's rule was as despotic as Hari Singh's.

It was only during the reign of Bakshi Ghulam Mohammad (August 1953-September 1963) that a number of steps were taken to democratise the State polity. These included the abrogation of Section 75 of the JKCA on May 14, 1954 under which the "Council of Ministers" was the "final interpreter of the Constitution", the abolition of the largely-committed "His Highness Board of Judicial Advisors", extention of the jurisdiction of the Supreme Court to Jammu and Kashmir on May 14, 1954 and the adoption of a new Constitution on November 17, 1956 by the Constituent Assembly (which had been set up in 1951) and its application on January 26, 1957. The people's natural right to shape and control political, administrative and economic policies was recognised and the Press and judiciary freed by this Constitution.

It is thus clear that a return to the "pre-1953 constitutional position" or revival of the JKCA of 1939 will grievously harm the legitimate rights and interests of the people of Jammu and Kashmir. It must be remembered that the roots of the Kashmiris' alienation lie not in the central laws but in the misrule of Kashmiri leaders of all hues, bureaucratic bungling and denial of the legitimate expression of popular will. What the people of the State actually need is a dispensation which is genuinely-democratic, people-centric, corruption-free, responsive, transparent and accountable. They are not for the "healing touch policy" implemented by the Congress-People's Democratic Party-Panthers Party coalition Government. For, it is absolutely vague, militant-friendly, discriminatory and based on what may be legitimately termed as the politics of rhetoric and deceit.

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