A Dubious Constitution - Frontline 190319

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ESSAY
A dubious Constitution
A .G . NOORA NI
Print edition : February 01, 2019
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September 24, 1949: At the opening session of the All Jammu and Kashmir National Conference in Srinagar. Jawaharl
( fth from left), Sheikh Abdullah (to his right), Sardar Baldev Singh (second from left), N.V. Gadgil (extreme left) an
are seated on the dais. Photo: The Hindu Archives
The Constitution of Jammu & Kashmir is not legally valid because it was enacted by an
Assembly that had been installed through a coup by the Centre in violation of Article 370
and had lost its representative character, moral authority and political relevance.
For reasons more than one, the Constitution of Jammu & Kashmir, enacted by its
Constituent Assembly on November 17, 1956, is totally void in law and an utter
nullity, a non est. Constitutional as well as political morality make it stink. It came
into force on January 26, 1957.
https://frontline.thehindu.com/the-nation/article26003923.ece 1/11
It has since been mutilated several times to serve the Central government’s
interests. The Centre’s repeated violations of Article 370 of the Constitution of
India, rendering its guarantee of autonomy hollow, have received notice, though not
the study and wide concern they merit. But Kashmir’s Constitution is regarded as
something given. The electoral crime of 1951, an original sin which alone su ces to
render the document void, is overlooked. So is the constitutional crime of 1953 while
the Constituent Assembly was still at work. What happened since by way of
amendments to this Constitution and in tandem with the President’s Orders under
Article 370 have escaped notice. The entire constitutional setup of the State of
Jammu & Kashmir is a monumental fraud, a standing testimony to the dire need for
its erasure and for a constitutional settlement acceptable to the people of the State
in all its provinces. It will have to be a result of a political settlement acceptable to
all.
Let us begin with the beginning. A Constituent Assembly for Jammu & Kashmir was
part of the “Naya Kashmir” manifesto of the National Conference even before
Independence. On October 27, 1950, its general council passed a resolution to
convene a Constituent Assembly. On May 1, 1951, the ruler, Karan Singh, made a
proclamation convening the Assembly. It was preceded by correspondence between
the State’s Premier, Sheikh Abdullah, and Prime Minister Jawaharlal Nehru on its
scope, namely whether it was con ned to drafting a Constitution or it could also
decide on the issue of accession to India. Nehru was afraid it might vote to secede.
Sir B.N. Rau, leader of the Indian delegation to the United Nations Security Council,
told the Security Council on March 9, 1951: “Provision was made in the Indian
Constitution for a Constituent Assembly for settling the details of Kashmir
Constitution. Will that Assembly decide the question of accession? My government’s
view is that, while the Constituent Assembly may, if it so desires, express an
opinion on this question, it can take no decision on it.” A dispute with Pakistan was
before the Council. On March 29, 1951, he again said: “Some members of the Council
appear to fear that in the process the Kashmir Constituent Assembly might express
its opinion on the question of accession. The Constituent Assembly cannot be
physically prevented from expressing its opinion if it so chooses. But this opinion
will not bind my Government or prejudice the position of this Council.”
In 1948, N. Gopalaswami Ayyangar told the Security Council: “Both the question of
the future government of Kashmir and the question of accession to either of the two
Dominions are matters requiring decision by the people of the State.”
On January 27, 1948, Ayyangar presented proposals to the Security Council that
provided for the convening of a National Assembly on the basis of adult su rage
and the formation of a national government based upon the National Assembly.
Paragraph 5(b) of the proposals provided: “A National Government based upon the
National Assembly should then be constituted.” Paragraph 5(c) provided: “The
National Government will then proceed to have a plebiscite taken on the question of
accession. The plebiscite will be taken under the advice and observation of persons
appointed by the United Nations.” Article 370 of India’s Constitution refers to a
Constituent Assembly as the sole authority to decide on the quantum of accession.
In his rst speech to the Constituent Assembly on November 5, 1951, Sheikh
Abdullah asserted that it had a right to “declare its reasoned conclusions regarding
accession”. But Nehru contended that decisions on the issue of accession depended
on agreement with Pakistan as the matter was before the Security Council.
Elections to the Constituent Assembly of Kashmir were held. Of the 75 seats, the
nominees of the All Jammu & Kashmir National Conference were declared elected
unopposed to seven. With regard to Jammu, the Praja Parishad threatened to
boycott the Constituent Assembly elections as a protest against irregularities. The
results naturally failed to carry conviction in India, and The London Times in an
editorial in its issue of September 7, 1951, entitled “No Fair Vote” characterised the
results as “farcical”.
The Constituent Assembly of Jammu & Kashmir, which eventually drafted its
Constitution, was the result of an incontestably rigged election. No one questions
this fact. In 1972, the Press Information Bureau of the Government of India
published a brochure on elections in the State titled “Elections in Kashmir” which
said that the Sheikh’s “Party members captured all the seats without a contest”
while claiming falsely that the 1972 elections, from which also the opposition was
excluded, were free.
Additionally, the fundamental rights clause of India’s Constitution was not applied
to Kashmir. Sheikh Abdullah got rid of dissenters by pushing them across the
cease re line to Pakistan under the Enemy Agents’ Ordinance. Nehru, indeed all of
India, heartily approved.
Two results follow from this massive electoral fraud, not regarding a Legislative
Assembly but a Constituent Assembly. What legal or moral authority can the
Constitution it drafts ever possess?
Debates in the Constituent Assembly are instructive. Mirza Muhammad Afzal Beg, a
brilliant lawyer, was the prime mover. As in India’s Constituent Assembly, an
Advisory Committee on fundamental rights and a “Basic Principles Committee” were
set up on November 7, 1951 on Beg’s motions. A Drafting Committee was also set up
on his motions on June 10, 1952. The Assembly endorsed the “land to the tiller”
policy. Land was expropriated without compensation and given to the tiller,
arousing the ire of the Rashtriya Swayamsewak Sangh (RSS) and the like-minded in
the Congress. Approved were the State’s emblem and its ag. On August 21, 1952,
the hated Dogra dynasty was shown the door. The Constituent Assembly
unanimously adopted a resolution on election of the Head of State. There would be a
Head of State elected by the Assembly, designated as Sadar-i-Riyasat, subject to

the President of India’s approval. A resolution to this e ect was adopted
unanimously on November 12, 1952.
By then Nehru and Abdullah had arrived at the famous Delhi Agreement, in July
1952. The agreement accepted the provision for an elected Head of State. “The
President will naturally agree” to the State Assembly’s recommendation, Nehru said.
‘Military coup’
At Nehru’s instance, the 22-year-old Karan Singh dismissed Abdullah as Premier on
August 8, 1953. The order read thus: “Whereas for some months I have been
noticing with growing concern that there have existed acute di erences of opinion
between members of the Government on basic issues—political, economic and
administrative—a ecting the vital interests of the States;
“And whereas members of the Government have been publicly expressing sharply
con icting points of view regarding these matters;
“And whereas on these fundamental issues the views of a majority of the members
of the Cabinet are sharply opposed to the view held by the Prime Minister and one
of his colleagues;
“And whereas e orts to work in harmony and pull together as a team having failed,
and the majority in the Cabinet has expressed that lacking as it does in unity of
purpose and action, the present Cabinet has lost the con dence of the people;
“And whereas the economic distress of the people has considerably increased which
needs prompt and serious attention;
“And whereas a stage has reached in which the very process of honest and e cient
administration has become impracticable;
“And whereas, nally, the functioning of the present Cabinet on the basis of joint
responsibility has become impossible and the resultant con icts have gravely
jeopardised the unity, prosperity and stability of the State;
“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 hereby 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.” Sheikh Abdullah was arrested in
Gulmarg at the dead of night and was released only on April 8, 1964, bar an interval
of three months.
Note that the order did not have a word on security or conspiracy with Pakistan.
These charges were levelled a decade later in a false criminal case. The ground cited
was lack of cohesion, but it was applicable to Nehru’s Cabinet also. This was not a
case of dismissal by constitutional means. It was a military coup with all its
constitutional implications. As early as on July 10, 1953, Nehru had sought the
services of Major General Hiralal Atal. Nearly two decades later, Atal revealed the
details of the operation in his memoirs. He was Director of Personal Services in
October 1947 when Nehru “personally” selected him for an assignment in Kashmir.
About the middle of July 1953, he was summoned by Nehru. He was then
Commander of 21 Communication Zone in Srinagar, now known as XV Corps. When
the Prime Minister asked him “to be of all assistance that you can to the
Government of State” in July, he could not have meant the Abdullah government.
Atal was well aware of what was afoot in Srinagar. He organised a “tactical exercise”
for the troops of all arms to be brought to Srinagar. Sheikh Abdullah was, of course,
under close surveillance; a sta o cer of the Adjutant General’s Branch came to see
Atal and met Karan Singh often in mufti: “I was most curious to know how he, as
Director of Organisation, could have been selected by Army Headquarters for an
assignment which militarily was not within his sphere. My suspicions about the
motive of his visit to Srinagar were aroused on two counts. First, he mentioned that
he was carrying with him a largish sum of money, and secondly his surprisingly
secretive behaviour, particularly when he normally con ded in me to a great extent.
I was left with the impression that he had been sent by a responsible political
personage and that his mission was political and not military.”
Personnel of the armed forces should not be used for such shady jobs. The “political
personage” must have been someone who could give such orders in a feudal
political culture—Nehru.
When an angry mob threatened to break the fence around the new Premier Bakshi
Ghulam Mohammad’s residence, Atal’s advice to the Commandant of the Militia was
to “shoot the possible ring leader” if need be.
Nehru also availed himself of the services of another favourite in the Army, B.M.
Kaul, who was o ciating as Adjutant General. In late July 1953, he said that Nehru
“called me in my private capacity”. Kaul took 10 days’ leave from the Army Chief
and went to Srinagar “without an o cial status” and stayed with Atal. Proprieties
and professional discipline in the Army were blatantly sidetracked. Kaul was to win
“high distinction” in the war with China in 1962.
Only in 1998 did the “smoking gun” emerge. It was a note of July 31, 1953, recorded
by Nehru’s private secretary and con dante M.O. Mathai (Selected Works of
Jawaharlal Nehru, hereafter SWJN, Volume 23, pages 303-305). Uniquely, he did not
sign it. It contained detailed instructions for Sheikh Abdullah’s dismissal from the
o ce of Prime Minister of Jammu & Kashmir and his arrest, complete with the role
of the Army and the rest. The scenario he sketched out boldly was followed to the
letter. The note was not signed in order to facilitate deniability.
In subsequent correspondence with Bakshi Ghulam Mohammad, Nehru sought deftly
to hint that the initiative belonged to Srinagar. As the Bengali saying goes, “Dhori
mach, na chuin pani” (Catch the sh, but don’t wet the hands). The detailed
prescription in Nehru’s note re ected resolve. (1) Prepare a memorandum on “the
future of the State” and ask the Cabinet “to support the policy laid down in its
entirety”; the accession to India should be garnished with “economic issues”. (2)
Dissent there will be. The Head of State should ask for the resignation of the
government “because it cannot function as a team”, but “he should have an order
ready for the dismissal of the Government” and appoint a new Ministry speedily. (3)
Prepare the ground with members of the party’s executive. (4) “All necessary steps
should be taken for the preservation of law and order”. Assistance should be
“available”, i.e. the Army should be alerted.
As early as on July 10, Nehru sent for Major General Hiralal Atal from Srinagar. “I do
not want it to appear that he has been summoned to meet me”, he wrote to
Mahavir Tyagi (SWJN, Volume 23, page 288). Hatchet men proliferated, but it was
Nehru who orchestrated their play. The note highlighted an un attering aspect.
Nehru had systematically intrigued against his friend, the Sheikh, by tapping his
colleagues. Bakshi Ghulam Mohammad was won over fairly early. On August 25,
1952, Nehru wrote to Abdullah to use the Assembly to ratify the accession. Abdullah
refused and urged a settlement with Pakistan.
Nehru’s disclaimer
In his note to President Rajendra Prasad on August 9, his statement to Parliament
on August 10 and even in his letter to daughter Indira, Nehru lied. He disclaimed
any involvement. She did not believe a word of what she was told and went so far as
to express a desire to go to Kashmir and meet the Sheikh. Mathai had talked her out
of it. This writer got the text of Mathai’s note with di culty. She obviously did not
believe a word of her father’s falsehoods: “Our advice was neither sought nor given.
The Cabinet had split.” He did not mention that he was the architect of the split.
The Sheikh was arrested because of the fear of “breaches of the peace”—for which
he was imprisoned for 11 years and a false case of criminal conspiracy launched
against him years later.
The Army was called in because Nehru feared, rightly, a popular revolt. Bakshi
Ghulam Mohammad could not go on his morning walk. His home was attacked. As
well as Mirza Afzal Beg, a large number of Abdullah’s followers were imprisoned. The
Constituent Assembly reconvened on October 20 when Abdul Ghani Goni’s motion to
suspend the business of the House until the release of the members under
detention was disallowed by the President G.M. Sadiq. Bakshi Ghulam Mohammed
regretted he did not “secure the sanction of the Legislature earlier”. His long
statement in the House did not allege subversion. Seven members walked out.
All the main committees were “reconstituted”. It was such an Assembly which
accorded its “concurrence” to the increase in the Centre’s powers over Kashmir and
which drafted its Constitution. Beg was released from detention brie y and
delivered a scathing analysis of the Draft Constitution. Sadiq declined Abdullah’s
request from prison to be allowed to speak in the Assembly. Beg was released on
October 20, 1956. He moved that Sheikh Abdullah be brought to the House. Sadiq
was ticked o by Beg. “From a gentleman who adorns the chair of the Legislative
Assembly, I do not expect impatience”. Beg’s notice was disallowed by Sadiq. He
was rearrested on October 24, 1956. Beg walked out of the House but not before
saying that “this House had lost its representative character and that it is not
competent to frame a Constitution, nor can it take any decision in regard to the
accession of the State”. He submitted a written statement. It is a measure of the
depths to which Sadiq stooped that he refused to include it in the o cial record. “It
will be a part of my personal le”. On November 17, 1956, the Assembly adopted
the Draft Constitution. The question brooks no evasion. Was Mirza Afzal Beg’s
assertion correct in law?
In the entire history of the democratic world, is there any precedent for a Prime
Minister being dismissed because his colleagues lost con dence in him? In that
event, it is they who must resign and move a vote of no-con dence against him.
The authority to decide is the Assembly alone. In this case, the 22-year-old Head of
State based his judgment on that of Abdullah’s political assassins. Both, of course,
were acting on Nehru’s orders. Secondly, was the Army’s help ever sought in a
“constitutional crisis”? The Praja Socialist Party sent a team of observers comprising
two secular nationalists, Madhu Limaye and Sadiq Ali. Their report of 37 pages
entitled “Report on Kashmir” revealed facts which our “patriotic press” did not. One
conspirator, Mir Qasim, gave more details later in the evening of his life in his
memoirs, My Life and Times (1992). He mentioned that Bakshi Ghulam Mohammad,
who became Premier, could not even go on his daily morning walk. He contemplated
resigning. His house was attacked. There were no civil liberties, no free press; no
permission was given to reporters to visit Srinagar. Stone-pelting, the hallowed
weapon after the Mughals occupied Kashmir, snu ng out its independence, became
the order of the day.
Documents revealed nearly half a century later expose the lies uttered in
justi cation. Cap it all with massive arrests and the atmosphere of intimidation.
One member who dared to dissent, Abdul Ghani Goni, withdrew his dissent in what
had become a rump Assembly. It had lost its representative character, moral
authority and political relevance.
Legal consequences
Legal consequences
Its legal consequence is set out in a landmark judgment of the Madras High Court In
Re: K. Anandan Nambiar (A.I.R. 1952 Madras 117). It was delivered by Justice E.E.
Mack. Justice N. Somasundaram concurred. Anandan Nambiar, a communist member
of the Madras Legislative Assembly and a trade unionist, was detained on May 4,
1949, under the Maintenance of Public Order Act.
Two habeas corpus petitions were dismissed. He led a third petition asserting a
right to attend the proceedings of the Assembly, if need be under police escort. His
counsel was the brilliant S. Mohan Kumaramangalam. He lost the case; the petition
was dismissed. But he won a huge moral victory. Justice Mack’s observations are of
enduring relevance. He said: “We are able to discern two main massive and
indispensable pillars underground on which the Constitution is founded. The rst
pillar is unswerving loyalty by each and every citizen to the Constitution and to the
ag of the Indian Union, the Constitution be changed only by constitutional means
eschewing any form of violence. The second pillar we may describe as honesty,
character and integrity in the component organs of the Constitution, viz., the
Legislature and the Executive and Judiciary.... Once a member of a Legislative
Assembly is arrested and lawfully detained, though without actual trial under any
Preventive Detention Act, there can be no doubt that under the law as it stands, he
cannot be permitted to attend the sittings of the House. A declaration by us that he
is entitled to do so, even under the armed escort, is entirely out of the question. We,
however, readily concede the contention of Mr Kumaramangalam that if a party in
power detains a political opponent or continues his detention with the mala de
object of sti ing opposition and prejudicing the party to which he belongs in a
forthcoming election, there would be an undermining of the basis of the
Constitution, putting in jeopardy the second pillar to which we have adverted.”
The judge spoke thus on September 11, 1951. What happened in Kashmir two years
later, on August 8, 1953, was an aggravated case of massive arrests under a military
umbrella. What is its worth?
Murder of Article 370

Worse followed. In 1963, a directive was sent by New Delhi to Srinagar—integrate.
In breach of the Delhi Agreement of 1952, outing Kashmir’s strong commitment
and the Assembly’s unanimous resolution for an elected Head of State, the
Constitution of Jammu & Kashmir (Sixth Amendment) Act, 1965 was enacted to
replace the elected Sadar-i-Riyasat by a Governor appointed by the Government of
India—removable or transferable at its will.
This is void because it destroyed “the basic structure” of the Constitution. In the
famous Keshavanand Bharati Case (1973) 4 SCC 225, the court held that “the
Republican and Democratic form of Government” was part of the basic structure.
Removal of an elected head of State and imposing in his place a Governor
nominated by the Centre outs the basic structure as well as the federal principle.
This applies also to the President’s orders under Article 370. They also wreck the
basic structure of the autonomy of the State.
This is quite apart from the fact that those orders by the President out the very
terms of Article 370. Any order which increased the Centre’s powers or extended to
Kashmir constitutional provisions additionally required rati cation by the
Constituent’s Concurrence and was valid only until the Assembly was convened. It
had to ratify the Government’s Concurrence. Once the Assembly ceased to exist, no
Presidential order could at all be made thereafter, for the ratifying body was gone.
The Constituent Assembly met rst on October 11, 1951. The State government’s
power to concur with the Centre on its amassment of power over the Centre was
gone. The Assembly dissolved itself on November 17, 1956. Yet, 47 such illegal
orders were made after November 17, 1956, with “the Concurrence” of the State
governments. The latest was last year on goods and services tax (GST).
The murder of Article 370 does not stop there. It empowered the President to
extend to Kashmir provisions of India’s Constitution, subject to the stated
limitations. It certainly gave no such power to the President to amend the State’s
Constitution.
On July 23, 1975, the President made an Order. No. C.O. 101, supposedly under
Article 370, to amend the State’s Constitution to debar the State’s Legislature from
amending Kashmir’s Constitution in respect of the Governor, the Election
Commission, and even the composition of the upper house, the Legislative Council
“being matters speci ed in Sections 138, 139, 140 and 50 of the Constitution of
Jammu & Kashmir” unless it received the President’s assent—that is, the
Government of India’s consent. Section 147 of the State’s Constitution requires the
Governor’s assent for constitutional amendments.
This was in pursuance of Paragraph 5 of the Agreed Conclusions signed by Mirza
Afzal Beg and G. Parthasarathi in New Delhi on November 12, 1974, doubtless with
the approval of their respective principles, Sheikh Abdullah and Indira Gandhi. It
was not a constitutional document which the Prime Minister of India signed with a
political leader as part of power sharing. When she withdrew support to him forcing
his resignation, the entire accord of February 1975 collapsed. It was like the Punjab
Accord (July 24, 1985) the Assam Accord (August 15, 1985) and the Mizoram Accord
(June 30, 1986). The Kashmir Accord was explicitly a “political accord between us”
as Indira Gandhi wrote (December 16, 1974). She broke the political basis in March
1977 wrecking the entire accord.
The net result is that out of the 395 Articles of India’s Constitution, 260 were
extended to Kashmir. Out of the 97 entries in the Union List, 94 were extended;
most illegally. It is this husk of Article 370 which the Ram Madhav-Haseeb Drabu
Accord of 2014 perpetuated. The 1975 Accord was humiliating. The Shimla Accord of
1972 impaired Sheikh Abdullah’s power to bargain. The 1975 Accord was,
nonetheless, a humiliation. Mufti Mohammed Sayeed had a better option. He
preferred, as did Mehbooba, to sell his people’s rights for a part with the Bharatiya
Janata Party. The Ram Madhav-Haseeb Drabu Accord was worse than a humiliation.
It was a despicable betrayal. Kashmir’s history is marred by such betrayals.
It, is of course, perfectly legitimate, rightful and constitutionally valid of Kashmir’s
Assembly to pass a resolution expressing its view that the illegalities mentioned
above are not acceptable.
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( ht t p :/ / w w w .m an u kafeed .co m / w hat -w ill-hap p en -if-yo u -eat -2 0-alm o n d s-every-d ay/ ?

u t m _so u rce= t hehin d u -
fro n t lin e&u t m _m ed iu m = t ab o o la&u t m _cam p aig n = 2 08_F P _A lm o n d s_t 4_all&u t m _co n t en t = 12 845 617 0)
If You Eat 20 Almonds Per Day For A Month This Will…

( ht t p :/ / w w w .m an u kafeed .co m / w hat -w ill-hap p en -if-yo u -eat -2 0-alm o n d s-every-d ay/ ?

u t m _so u rce= t hehin d u -
fro n t lin e&u t m _m ed iu m = t ab o o la&u t m _cam p aig n = 2 08_F P _A lm o n d s_t 4_all&u t m _co n t en t = 12 845 617 0)

A Dubious Constitution - Frontline 190319

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A Dubious Constitution - Frontline 190319

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3/3/2019 A dubious Constitution - Frontline

Print edition : February 01, 2019

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( ht t p :/ / w w w .m an u kafeed .co m / w hat -w ill-hap p en -if-yo u -eat -2 0-alm o n d s-every-d ay/ ?

If You Eat 20 Almonds Per Day For A Month This Will…

( ht t p :/ / w w w .m an u kafeed .co m / w hat -w ill-hap p en -if-yo u -eat -2 0-alm o n d s-every-d ay/ ?

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