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July 30, 2002

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Arvind Lavakare

J&K: Pre-1953 and its implications

The autonomy that father-and-son Abdullah dream of is the return of J&K to its pre-1953 status with regard to its constitutional position -- vis--vis the rest of India. That is simple. But what is the sanctity of that cut-off date for them?

The commoner interested in politics is unlikely to know despite the dozens of media discourses on the autonomy theme -- which say what about those discourses? Never mind.

You'll readily understand the significance of the 'pre-1953' phrase when told that it was on August 9, 1953 that Sheikh Abdullah, J&K's prime minister, was dismissed from office and detained under the state's Prevention Detention Act by the erstwhile yuvraj (in his capacity as the Sadar-i-Riyasat aka governor of the state). Abdullah and 25 others, 10 of whom were hiding or in Pakistan, were charged with conspiracy to 'overawe by force and show of force the duly constituted government of Jammu and Kashmir with the object of overthrowing it and facilitating the annexation of the State's territory by Pakistan' (The Guardian, London, September 19, 1962, and The Times, London, September 20, 1962, as cited on page 86 of The Constitution of Jammu & Kashmir, Universal Law Publishing Pvt Ltd, New Delhi, third edition, 1998, by Dr A S Anand, former chief justice of India.)

The matter was called the Kashmir Conspiracy Case and resulted in Sheikh Abdullah being in jail till January 1958 when he was released, only to be rearrested in April that year. Final charges were brought against him and others in August 1962 and the first prosecution witness gave evidence in the special sessions court, Jammu, on September 19 that year. Then, suddenly, the case was closed. Was Jawaharlal Nehru, the long-time friend of Sheikh Sa'ab, the invisible potentate? Never mind.

By then, however, considerable advance had occurred in J&K's constitutional relationship with the rest of India. Not only had the state's separate constitution seen the light of day on November 17, 1956, with its intricate links to India, but also several Indian parliamentary laws had become enforceable in J&K and many provisions of the Indian Constitution had become valid for the state in toto or with modifications. Those links had been effected by the President of India's 'Constitution (Application to Jammu and Kashmir) Order' of May 14, 1954 and its subsequent amendments from time to time -- all issued under Article 370 of the Indian Constitution.

Those links are what the 'pre-1953' autonomy demand now seeks to break though all of them were forged after the required consultation or concurrence of the reigning J&K government as required by Article 370. In short, Sheikh Abdullah's son and grandson want J&K to be reverted to that time zone when Sheikh Sa'ab was the 'Lion of Kashmir,' the Wazir-e-Azam of the once princely state of India.

To know what precisely the pre-1953 political status of J&K was, it is necessary to highlight what the President's Constitution (Application to Jammu and Kashmir) Order of January 26, 1950 did before it was repealed by a similar Order of four years later referred above.

The 1950 Order set out the constitutional relationship that was to exist between J&K and the Union of India immediately after the inauguration of the Indian Constitution. Of the 22 Parts of the Indian document, the Order made only Parts V, XI, XII, XV, XVI, XVIII, XIX, XX, XXI, and XXII (ten in all) applicable to J&K, and that too with modifications in some provisions. Thus --

  • The Supreme Court's original jurisdiction was restricted only to Article 131 dealing with disputes between the Union and the states. In all other matters, the apex court was given only appellate jurisdiction.
  • The Comptroller and Auditor General was denied jurisdiction of J&K
  • Unlike in other states, the representatives of J&K to both Houses of the Indian Parliament were not to be elected by the state's people but to be appointed by the President of India in consultation with the J&K government. These appointed members were however to be treated as elected members for the purpose of voting for the post of the nation's President under Articles 54 and 55.
  • Unlike in the case of other states, Parliament's power of legislation with regard to J&K was limited to the items on the Union List, subject, of course, to the constraint of Article 370. The State List and the Concurrent List of legislative items were not applied to J&K.
  • The taxes collected by the Union or by the states on behalf of the Union remained exclusively under J&K's control. Provisions dealing with the distribution of taxes collected by the Union outside J&K did not apply to that state. Similarly, Article 280 relating to the finance commission was not applicable to J&K.
  • The income tax department of J&K was to be free of all central controls. The state was allowed its own customs department that had been established during the British period.
  • The Election Commission of India had no jurisdiction other than that pertaining to elections for the posts of President and vice-president of India. Elections to the J&K state assembly were to be governed by the state's laws.
  • The provision regarding reservation of seats in the state assemblies was not applied to J&K. Similarly, the provision for appointment of a commission to investigate the conditions of backwards classes or of a special officer for scheduled castes did not apply to the state.
  • The provision regarding official language was restricted to dealing with Union and to the proceedings of the Supreme Court. The directive for the development of the Hindi language did not apply to J&K.
  • Amendment of the Indian Constitution relating to J&K needed not only the detailed requirements of the Article concerned but also an Order of the President of India under Article 370.

More conspicuous is that all of Parts I to IV, Parts VI to X, Part XIII, Part XIV and Part XVIII were not made applicable to the J&K of pre-53. The critical constituents of these omissions were:

  • Citizens of J&K were not deemed to be citizens of India!! (That diabolical wrong was corrected by the above-referred Order of May 14, 1954, which conferred that citizenship with retrospective effect from 1950).
  • J&K citizens were denied the fundamental rights elaborated in Articles 12 to 35 in Part III of the Indian Constitution. (In order to distribute land to poor peasants, Sheikh Abdullah's land reforms of 1949-50 expropriated estates above 182 kanals (about 23 acres) without paying any monetary compensation to the owners. Why, even the state's Maharaja was denied his sovereign right in the matter -- his assent was not obtained before the Sheikh announced the sweeping reforms).
  • Directive Principles of State Policy (including the establishment of a uniform civil code) contained in Part IV of the Indian Constitution) were not applicable to J&K.
  • Kashmir Service Regulations were to prevail and employment in J&K was permitted to be restricted to "state subjects" defined under a sovereign notification of April 20, 1927.
  • Proclamation of general emergency and financial emergency were not applicable to J&K. Its government was exempted from being suspended by the Centre under Article 356.

Apart from all of the above, Arun Shourie has pointed out an alarming anti-national facet of the demand of the Abdullahs. In an interview published in The Times of India, Mumbai, on July 8, 2000, he pointed out 'Financial integration of the state (J&K) with the rest of India was brought about in 1954; once you go back to 1953, the jurisdiction of the Reserve Bank goes, they get the right to have their own currency.'

So do the Abdullahs want their faces and signatures to ornament the currency notes in J&K? Those who sympathise with their call for the pre-1953 status must answer that billion-dollar question.

There is even a bigger question that these Abdullah supporters must answer. Why did the J&K Autonomy Committee's report not provide justification for its demand of reversing the long list of Parliamentary laws it wanted reversed for the state?

In this context, it must be remembered that the Indira Gandhi-Sheikh Abdullah accord of November 13, 1974 provided that i. the state government's proposals for altering or repealing the already modified application of any provision of the Indian Constitution to J&K would be treated on merit ii. Parliamentary laws on the Concurrent List extended to J&K after 1953 would be sympathetically considered for amendment or repeal. But no proposal on either came from the Sheikh Abdullah government, writes Jagmohan (currently a Union Cabinet minister and formerly twice governor of J&K) in his edit-page article in The Times of India, Mumbai, of July 11, 2000. Why?

The Abdullahs really have a lot to answer if only the politicians and media confront their antecedents and arrogance boldly and squarely. Unfortunately, there is nothing in the pre-1953 model on that score which warrants such a hope.

Tailpiece: A reader of an earlier column on autonomy ridiculed the 'ignorance' of the statement therein that J&K was the only state to have its own flag. He is referred to page 121 of Dr Anand's above-referred book. In footnote 3 of that page, the former chief justice says, 'Throughout India there is only one flag and Kashmir is the only State which has its own flag in addition to the Union flag.' Clearly, impudence is not the monopoly of the Abdullahs.

Arvind Lavakare

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