Of Kashmir constitution
In response to Muhammad Nazir Fida's article
AB. QAYOOM KHAN
This refers to the article “Sheikh and the Kashmir Constitution” by Muhammad Nazir Fida (11th December 2012).
After Maharaja Hari Singh acceded to India on 26th of Oct 1947, the Indian Government was under tremendous international pressure to implement the UN Security Council resolutions passed on 21st April 1948 and 13th August 1948, which directed both India and Pakistan to resolve Kashmir dispute through impartial plebiscite. When nothing concrete was achieved, in 1950 UN nominated Sir Owen Dixon, an Australian jurist, as the United Nations representative to arbitrate between India and Pakistan on the matter of Kashmir. He recommended, “for the period of plebiscite a single government for the whole state - a coalition government composed of the two hitherto hostile parties, or a natural administration by trusted persons outside politics, or an executive constituted of united Nations representatives- be organised”. But the Indian Government rejected all his proposals. To counter this international pressure and to divert the attention of the International Community Pt. Jawahar Lal Nahru & Sheikh Muhammad Abdullah decided to convene a constituent assembly in the state based on adult suffrage for determining the future of Jammu & Kashmir state.
On 27th Oct 1950, in a meeting of General Council of National Conference the report of Sir Owen Dixon was rejected and it was decided to convene a constituent assembly to determine the future of J&K state. Karan Singh as Sadr-i-Riyasat, issued an order dated 30th April, 1951 for formation of Constituent Assembly. The Delimitation Committee was appointed who demarcated electoral constituencies and divided Jammu & Kashmir into 100 constituencies, with 43 in Kashmir, 30 in Jammu and one each for Ladakh and Baltistan, 25 Constituencies were reserved for Pakistan Administered Kashmir (Azad Kashmir). Elections were declared. Popularity of Sheikh was at its peak. Whole of Jammu and Kashmir was looking red with National Conference flags. Slogans of Naya Kashmir Zindabad,” “Land to the tiller” “Long Live Abdullah” and “Hindu Muslim Unity Zindabad” reverberated everywhere. Of the 75 seats, National Conference won 73 un-opposed. On 31 March, 1951 Constituent Assembly was convened in Srinagar. All the 75 members were present under the chairmanship of Maulana Masoodi, G.M.Sadiq was elected as first President.
Later it was on 17th of Nov. 1956 during Bakshi regime, the constituent assembly passed the draft constitution and also adopted a resolution moved by Syed Mir Qasim, that the constituent assembly shall stand dissolved from 26 Jan 1956. The constitution passed, though in a diluted form, gave Jammu & Kashmir a unique position in the union of India, with status of a semi-sovereign autonomous State, with a separate National Flag and Citizenship, Independent judiciary with Sadr –i- Riyasat, as head of the State and Council of Ministers headed by the Prime Minister. This was guaranteed under Article 370 of Indian constitution, which also restricted parliament’s legislative powers with respect to Jammu & Kashmir to three subjects only i.e Defence, External affairs, and Communication. For application of all other provisions of Indian Constitution, the concurrence of state was required. Unfortunately till date with the consent of successive state Governments through various presidential orders as many as 94 of the 97 entries in the union list were extended to Jammu & Kashmir as were also 260 of the 395 articles of the Indian constitution.
The height is that during 1986 through a presidential order dated 13th July 1986 article 249 of Indian Constitution was extended to Jammu & Kashmir, which empowered the Parliament to legislate with respect to Jammu & Kashmir even on matters in the state list on the strength of Raj Sabha resolution. The worst of it is that even after the Indira - Sheikh Accord in February 1975, on 23rd of July 1975 the President through an executive order debarred the State Legislature from amending the State Constitution on the matters in respect of Governor, the Election Commission and even the composition of upper house i.e the Legislative Counsel. The union thus acquired vast powers to legislate not only on all matters in state list but also others not mentioned in union list or the concurrent list – Residuary Power. Thus the basic structure of the Jammu & Kashmir constitution was totally altered and J & K lost its republic character. This happened over the years at the hands Congress which has ruled India for 52 years since 1947.
(Ab Qayoom Khan (IFS) Rtd. is Member All India Muslim Majlis - e- Mushawarat. New Delhi. Feedback at mail :email@example.com)
Lastupdate on : Thu, 13 Dec 2012 21:30:00 Makkah time
Lastupdate on : Thu, 13 Dec 2012 18:30:00 GMT
Lastupdate on : Fri, 14 Dec 2012 00:00:00 IST
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