Sunday, June 21, 2015

The Delhi Agreement, 1952

The Delhi Agreement, 1952


After the Constituent Assembly of the State had taken important decisions referred to immediately above, it was deemed necessary to receive the concurrence of the Indian Government. Accordingly, the representatives of Kashmir Government conferred with the representatives of Indian Government and arrived at an agreement. This arrangement was later on known as the "Delhi Agreement, 1952". 

The main features of this agreement were:    

in view of the uniform and consistent stand taken up by the Jammu and Kashmir Constituent Assembly that sovereignty in all matters other than those specified in the Instrument of Accession continues to reside in the State, the Government of India agreed that, while the residuary powers of legislature vested in the Centre in respect of all states other than Jammu and Kashmir, in the case of the latter they vested in the State itself;     

  1. it was agreed between the two Governments that 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 Notifications 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;    

as the President of India commands the same respect in the State as he does in other Units of India, Articles 52 to 62 of the Constitution relating to him should be applicable to the State. It was further agreed that the power to grant reprieves, pardons and remission of sentences etc; would also vest in the President of India' 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 recognised that the Union flag should have the same status and position in Jammu and Kashmir as in the rest of India, but for historical reasons connected with the freedom struggle in the State, the need for continuance of the State flag was recognised there was complete agreement with regard to the position of the Sadar-i-Riyasat; though the Sadar-i-Riyasat was to be elected by the State Legislature, he had to be recognised by the President of India before his installation as such; in other Indian States the Head of the State 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 itself instead of being a nominee of the Government and the President of India. With regard to the powers and functions of the Sadar-i-Riyasat the following argument was mutually agreed upon

  • the Head of the State shall be a person recognised by the President of the Union on the recommendations of the Legislature of the State;
  • he shall hold office during the pleasure of the President;    
  • he may, by writing under his hand addressed to the President, resign his office;    

subject to the foregoing provisions, the Head of the State shall hold office for a term of five years from the date he enters upon his office;  
provided that he shall, notwithstanding the expiration of his term, continue to hold the office until his successor enters upon his office"
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 fundamental rights. But in the view of the peculiar position in which the State was placed, 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 of the Constitution of India as applicable to the State;    
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, the Supreme Court should have only appellate jurisdiction;    
.there was a great deal of discussion with regard to the "Emergency 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 (Item 1 on the Union List), in the event of war or external aggression, the Government of India would have full authority to take 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)    

Both the parties agreed that the application of Article 356, dealing with suspension of the State Constitution and 360, dealing with financial emergency, was not necessary.

The facts analysed above make it clear that the State of Jammu and Kashmir enjoys a special position in the Union of India, and this position of the State has been permitted by Article 2 of the Constitution itself. " In arriving at this arrangement", declared Sheikh Mohammad Abdullah, the then Prime Minister of Jammu and Kashmir, "the main consideration before our Government was to secure a position for the State which would be consistent with the requirements of maximum autonomy for the local organs of the State power which are the ultimate source of authority in the State while discharging obligations as a Unit of the federation".    

The Jammu and Kashmir Constituent Assembly discussed this arrangement and finally adopted a motion of approach on August 21, 1952.    

The agreement was discussed in the Union Parliament on August 7, 1952 and accepted.    

But inspite of all these discussions and decisions in the Kashmir Constituent Assembly, the implementation of the agreement was not forthcoming. This aroused suspicion in the minds of the public about the intentions of the leaders of the Government. In the working committee of the National Conference there was sharp criticism of the Government’s policy. There was a serious rift in the Cabinet itself. The difference of opinion reached a peak when Sheikh Abdullah, instead of implementing the agreement, started advocating secession, which would make Kashmir an ‘independent State’. The people of the State were quick to perceive the danger of such a course for they had seen that the tribal attack in 1947 which had caused much devastation was a direct consequence of Kashmir’s isolated position. There were ‘inflammatory rumours that United States was backing the Kashmir’s independence". Sheikh Abdullah was accused both by his colleagues in the Cabinet and by the public outside of trying to create a State for himself. In fact, three members of the Cabinet submitted a memorandum to Sheikh Abdullah accusing him of various charges. It soon became obvious that the capacity of the Administration to function efficiently was doubtful. The whole matter was spotlighted

when the Sadar-i-Riyasat, who, taking cognisance of the situation, on August 8, 1953, dismissed Sheikh Abdullah from the post of Prime Minister of Kashmir and dissolved the Cabinet.




Wrote Sadar-i Riyasat, to Sheikh Abdullah:    
"This conflict within the Cabinet has for a considerable time been causing great confusion and apprehension in the minds of the people of the State.... . I have been forced to the conclusion that the present Cabinet cannot continue in office any longer and hence I regret to inform you that I have dissolved the Council of Ministers headed by you."

The relevant portion of the order of dismissal read:    

"I, Karan Singh, Sadar-i-Riyasat, functioning in the interests of the people of the State, who have reposed the responsibility and authority of the Headship of the State in me, do here dismiss Sheikh Mohammad Abdullah, from the Prime Ministership of the State of Jammu and Kashmir, and consequently the council of Ministers headed by him is dissolved forthwith."

On the same day in order to "avoid a political and administrative vacuum", the Sadar-i-Riyasat invited Bakshi Ghulam Mohammed, the erstwhile Deputy Prime Minister, to form the new Cabinet.    

On 9th August, 1953, Sheikh Abdullah was arrested at "Gulmarg", a health resort about twenty-eight miles from Srinagar valley, under the State Preventive Detention Act. He was released four years later in 1958 but was shortly re-arrested on a charge of "Conspiracy to overthrow the Government". His followers and well wishers including the then Revenue Minister were arrested with him. A case against him and a few others was tried in the Court of Special Magistrate in Jammu.    

A lot of confusion arose on account of Sheikh Abdullah’s dismissal, since there had not been any ‘No Confidence’ motion in the Kashmir Assembly. It is true that a Chief Minister is not generally dismissed, if he enjoys the confidence of the House, but it has also to be accepted that the head of the State is obliged to ensure the continuance of a stable government and if he has reasonable grounds to believe that the Chief Minister has lost the confidence of the people, or if he is engaged intreasonable activities he must replace him. 

At the time when Sheikh Abdullah was dismissed and arrested, the Assembly was not in session, so a ‘No Confidence’ motion could not have been discussed. But it was important that the new ministry should have a vote of confidence from the Assembly in the first session. Accordingly, the Sadar-i-Riyasat wrote to Bakshi Ghulam Mohammad when inviting him to form the new Cabinet, "the continuance in office of the new Cabinet will depend upon its securing a vote of confidence from the Legislative Assembly during its coming session." The State legislature met on October 5,1953, and passed a unanimous vote of confidence in the new Cabinet.

The National Confernece had earlier approved the change of Government. A Convention of about 400 delegates from the National Conference throughout the State met in Srinagar from September 13-15, 1953 and approved the change of Government as ‘inevitable in the interest of the country and the national movement,’ and expressed complete confidence in the new government, promising their fullest co-operation.    

In spite of this some friends of Sheikh Abdullah kept on criticising the new Government. Miss Sarabhai criticised the Government of India for its indifference to the events in Kashmir. The present writer submits that since the internal autonomy of the State had been recognised, therefore, the Government of India could not interfere. Moreover, since the Article 256 of the Indian Constitution, which empowers the Union Government to issue directions to the State Government for the running of the administration in the State was not applicable to Kashmir, the Government of India could not intervene in the matter. "This was an internal matter and we did not wish to interfere" replied Mr. Nehru to a question in the Lok Sabha.    

In Pakistan, however, the events in Kashmir provoked a wave of indignation. There were accusations against India of having overthrown Sheikh Abdullah, "until then a quisling in the opinion of the Pakistanis but who, now, through a twist of history not without its" comical aspects had become a martyr in the struggle of Kashmiris. But this propaganda in Pakistan was met with sharp criticism in Kashmir. In the September Convention of the National Conference the members opposed association with the ‘ruling clique of Pakistan’ and regretted their behaviour.    

Bakshi Ghulam Mohammad immediately upon taking the oath of office, went before the microphone to make a policy statement. In his statement he bitterly deplored the idea of an ‘independent Kashmir’ under the patronage of the United States of America, which he said "would be a threat to the freedom and independence of Indian and Pakistani people. He praised India with which Kashmir had entered into "indissoluble links".    

With his coming into power, the formulation of Constitutional relations between Kashmir and India entered a new phase. The work of the Constituent Assembly started afresh with renewed phase. The work of the Constituent Assembly started afresh with renewed vigour. ‘Advisory Committee on Fundamental Rights and Citizenship’ and "Basic Principles Committee" were set up on 20th October, 1953.    

The Assembly met on February 6th, 1954, and adopted the reports of the "Basic Principles Committee on Fundamental Rights," thereby fulfilling one of the major tasks with which it had been charged.    

The ‘Drafting Committee’ presented its report on February 12th, 1954, and the report was adopted on February 15th, 1954. The adoption of this report embodied the ratification of the State’s Accession to India.




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