Sheikh Mohammad Abdullah's
Statement to the Constituent Assembly on Delhi Agreement
11th August, 1952
Document No 130
I crave permission to mace a statement before
the House in regard to the constitutional relationship between the Jammu
and Kashmir State and the Indian Union. As the Hon'ble Members are aware,
during the last session of the Constituent Assembly, the Basic Principles
Committee had submitted a report making certain specific recommendations
about the future Head of the State. The House, while accepting these recommendations,
had charged the Drafting Committee to present for the consideration of
the Assembly, a draft resolution incorporating the proposed principles
for the election of the Head of the State. The Drafting Committee will,
no doubt, submit its report to the House during this session.
Since the changes proposed by this Assembly involved
corresponding adjustments in the Indian Constitution, the Government of
India desired that it should have time to discuss with our representatives
other matters pertaining to the constitutional relationship of our State
with the Union. During the last stage of these discussions, it became necessary
for me and some of my other colleagues in the Government to participate
in the talks. I am now in a position to inform the House that certain broad
principles have been laid down and certain decisions have been tentatively
arrived at between the two Governments.
X X X
The basis of our relationship with India is the
Instrument of Accession which enabled our State to enter into a lemon with
India. In accordance with the terms of the Instrument, certain powers were
transferred to the Centre. The principal matters specified for this purpose
in respect to which the Dominion Legislature could make laws for this State
(b) External Affairs, and
This arrangement involved a division of sovereignty
which is the normal feature of a Federation. Beyond the powers transferred
by it to the Dominion, the State enjoyed complete residuary sovereignty.
These terms of the association of our State with
the Dominion of India were maintained; and, subsequently, when the Constituent
Assembly of India was charged with the task of framing a Constitution,
this over-riding consideration was kept m view in determining the position
of this State in the pro-posed Constitution Earlier to this, it had been
agreed between the two Governments that "in view of the special problems
arising in respect of this State and the fact that the Government of India
have assured its people that they would them-selves finally determine their
political future", a special position should be accorded to Jammu and Kashmir
in the future Constitution so that a limited field of the Union Powers
over the State is ensured. Dour representatives were nominated from the
Jammu and Kashmir State to the Constituent Assembly of India] These representatives
participated in the deliberations of the Constituent Assembly of India
at a time when the bulk of the Indian Constitution had already been adopted.
It was at this stage that the constitutional position of this State was
determined in the Constitution of India. The representatives of the Jammu
and Kashmir State reiterated their view that our association with India
should be based on the terms of the Instrument of Accession. It was at
this stage that the constitutional position of the State was determined
in the Constitution of India. Lithe representatives of the Jammu and Kashmir
State reiterated their view that our association with India should be based
on the terms of the Instrument of Accession. It was also made clear that
while the accession of the Jammu and Kashmir State with India was complete
in fact and law to the extent of the subjects enumerated in this Instrument..
the autonomy of the State with regard to all oilier subjects outside the
ambit of the Instrument of accession should be preserved.
X X X
Evince a good deal of confused thinking and uninformed
criticism is indulged in by some interested people. I would like to point
out here that the Constitution has confined the scope and jurisdiction
of the Union powers to the terms of the Instrument of accession with the
proviso that they may be extended to such other matters also as the President
may by order specify with the concurrence of the Jammu and Kashmir Constituent
Assembly. The special problems facing the State were thus taken into account
and under the Constitution the relationship approximated to that subsisting
under the Instrument of accession.
The Constitution of the Indian Union, therefore,
clearly envisaged the convening of a Constituent Assembly for the Jammu
and Kashmir State which would be finally competent to determine the ultimate
position of the State in respect of the sphere of its accession which would
be incorporated as in the shape of permanent provisions of the Constitution
X X X
The Hon'ble Members are aware that as the leader
of the National Conference party, I indicated in my inaugural address the
scope of the decisions which I felt the Constituent Assembly would have
to take. I listed the four main issues as pertaining to the main functions
of the Assembly, viz., the future of the Ruling Dynasty, payment of compensation
for the land transferred to cultivators under the Big Landed Estates Act,
Ratification of the State's Accession to India as well as the framing
of a Constitution for the State. While discussing these issues in my address
to this House, I had given clear indications of my party's views in regard
to them. I had also an occasion to place my point of view on these issues
before the representatives of the Government of India and I had the satisfaction
that they approved of it.
When Constituent Assembly commenced its labours,
it had to tackle these issues in course of time. It took decisions m regard
to payment of compensation to landlords and it came to the conclusion that
no compensation was justified.
The Constituent Assembly has, at present, under
its consideration the future of the Ruling Dynasty. In this connection
the Basic Principles Committee recommended that the institution of hereditary
rulership in the State should be abolished and in future the office of
the Head of State should be elective. While accepting the recommendations
of the Basic Principles Committee, this Assembly charged the Drafting Committee
to place before this House appropriate proposals for the implementation
of these recommendations.
As I said in the beginning of my statement, such
a fundamental decision involved corresponding adjustments in the Indian
Constitution and in order to finalist the position in respect of this issue
and other matters pertinent to it, I and my colleagues had discussions
with the representatives of the Government of India as a result of which
we arrived at some tentative agreement, tile details of which I wish to
place before the House.
The Government of India held the view that the
fact that the Jammu and Kashmir State was constituent unit of the Union
of India led inevitably to certain consequences in regard to some important
(a) Residuary Powers, (b) Citizenship, (c) Fundamental
Rights, (d) Supreme Court of India (e) National Flag, (f) The President
of India, (g) The Headship of the State (h) Financial Integration, (i)
Emergency Provisions, and (j) Conduct of elections to Houses of Parliament.
Permit me, Mr. President now to deal with each
one of these Items and also the agreement, arrived at between the Jammu
and Kashmir Government and the Government of India in relation to them.
It was agreed that while under the present Indian
Constitution, the Residuary Powers vested in the Centre in respect of
all the States other than Jammu and Kashmir, in the case of our State,
they rested in the State itself. This position is compatible with Article
370 of the Indian Constitution and the instrument of Accession on which
this article is based. We have always held that the ultimate source of
sovereignty resides in the people. It is, therefore, from the people that
all powers can flow. Under these circumstances, it is up to the people of
Kashmir through this Assembly to transfer more powers for mutual advantage
to the custody of the Union Centre.
It was agreed that in accordance with Article
5 of the Indian Constitution persons who have their domicile in the Jammu
and Kashmir State shall be the citizens of India. It was further agreed
that the State legislature shall have power to define and regulate the
rights and privileges of the permanent residents of the State, more especially
in regard to acquisition of immovable property, appointments to services
and like matters. Till then the existing State law would apply. It was
also agreed that special provision should be made in the laws governing
citizenship to provide for the return of those permanent residents of
Jammu and Kashmir State, who went to Pakistan in connection with the disturbances
of 1947 or in fear of them as well as of those who had left for Pakistan
earlier but could not return. If they returned, they should be entitled
to the rights, and privileges and obligations of citizenship.
There are historic reasons which necessitate such
constitutional safeguards as for centuries past, the people of the State
have been victims of exploitation at the hands of their well to- do neighbours.
The Hon'ble Members are perhaps aware that in the late twenties, the people
of Jammu and Kashmir agitated for the protection of their bonafide rights
against the superior competing interests of the non-residents of the State.
It was in response to this popular demand that the Government of the day
promulgated a Notification in 1927 by which a strict definition of the
term "State Subject'' was provided. I am glad to say that the Government
of India appreciated the need for such a safeguard. No definition of the
special rights and privileges of the residents of the State can afford
to remain static. The need may arise at one stage or the other to liberalise
such a definition. The importance of the fact that State Legislature shall
retain powers to be able to effect such modifications becomes obvious
in this context.
There is yet another class of State Subjects whose
interests had to be safeguarded. The Hon'ble Members of this House are
aware that on account of the disturbances of 1947 and also as a consequence
of the invasion of this country by Pakistan large number of the residents
of this State suffered dislocation. We have, therefore, to visualize the
possibility of their return to their homes and hearths as soon as normal
conditions are restored. It has been suggested in certain quarters that
this protection has been provided only for those residents of the State
who are at present stranded in Pakistan I would like to make it clear,
as I have stated earlier, that this protection will operate only when the
conditions are normal and such conditions naturally presume that the resettlement
of the dislocated population, whether Muslim or Non-Muslim cannot be one-sided
It is obvious that while our constitution is being
framed the fundamental rights and duties of a citizen have necessarily
got to be defined. It was agreed, however, that the Fundamental Rights,
which are contained in the Constitution of India could not be conferred
on the residents of the Jammu and Kashmir State in their entirety taking
into account the economic, social and political character of our movement
as enunciated in the New Kashmir Plan. The need for providing suitable
modifications, amendments and exceptions as the case may be in the Fundamental
Rights Chapter of the Indian Constitution in order to harmonize those
provisions with the pattern of our principles was admitted. Particular
care would have to be taken to preserve the basic character of the decisions
taken by this House on the question of land compensation as well as the
laws relating to the transfer of land to the tiller and other matters;
The main point to be determined is whether the Chapter of our Fundamental
Rights should form a part of the Kashmir Constitution or that of the Union
It was agreed that the Supreme Court should have
original jurisdiction in respect of disputes mentioned in Article 131 of
the Constitution of India. It was further agreed that the Supreme Court
should have jurisdiction in regard to Fundamen-tal Rights which are agreed
to by the State.
On behalf of the Government of India, it was
recommended that the Advisory Board in the State, designated "His High-ness's
Board of Judicial Advisors" should be abolished and the jurisdiction exercised
by it should be vested in the Suprement Court of India. That is to say
that the Supreme Court should be the final Court of appeal in all civil
and criminal matters as laid down in the Constitution of India.
We, however, felt that this would need a detailed
examination and consequently it was agreed that we should have time to
consider it further.
We agreed that in view of the clarifications issued
by me in my public statements while interpreting the resolution of this
House according to which the old State flag was in no sense a rival of
the National Flag. But for historical and other reasons connected with
the freedom struggle in the State, the need for the continuance of this
flag was recognized. The Union flag to which we continue our allegiance
as a part of the Union will occupy the supremely distinctive place in the
PRESIDENT OF INDIA
It was agreed that the powers to grant reprieve
and com-mute death sentences, etc. should also belong to the President
of the Union.
HEADSHIP OF THE STATE
I am glad to inform this House that the Government
of India have appreciated the principle proposed by the Basic Principle
Committee as adopted by this Assembly in regard to the abolition of the
hereditary rulership of the State. In order to accommodate this principle,
the following arrangement was mutually agreed upon:
i. The Head of the State shall be the person recognized
by the President of the Union of the recommendation of the Legislature
of the State.
ii. He shall hold office during the pleasure of
iii. He may, by writing under his hand addressed
to the President resign his office.
iv. 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.
v. Provided that he shall, notwithstanding the
expiration of his term, continue to hold the office until his successor
enters upon his office.
In regard to this subject, we agreed that it would
be necessary to evolve some sort of financial arrangement between the State
and the Indian Union. But as this involved far reaching consequences, it
was felt that a detailed and objective examination of this subject would
On behalf of the Government of India, it was stated
that the application of Article 352 of the Constitution was necessary as
it related to vital matters affecting the security of the State. They did
not press for the application of Articles 356 or 360.
On behalf of the Kashmir Delegation, it was stated
that the application of Article 352 to the State was not necessary. In
the event of war or external aggression, item I in the Seventh Schedule
relating to the defence of India applied and the Government of India would
have full authority to take any steps in connection with defence, etc.
In particular, we were averse to internal disturbance being referred to
in this connection, as even some petty internal disorder might be considered
sufficient for the application of Article 352'.
In reply it was pointed out that Article 352 could
only be applied in a state of grave emergency and not because of some small
disorder or disturbance.
In order to meet our view point, it was suggested
on behalf of the Government of India that Article 352 might be accepted
as it is with the addition at the end of the first paragraph (1) of the
following words: "but in regard to internal disturbance at the request
or with the concurrence of the Government of the State."
We generally accepted this position, but wanted
some time to consider the implications and consequences as laid down in
Articles 353, 358 and 359 which on the whole we accepted. In regard to
Article 354, we wanted to examine it further before expressing our opinion.
CONDUCT OF ELECTIONS TO HOUSES OF PARLIAMENT
Article 324 of the Indian Constitution already
applies to State in so far as it relates to elections to Parliament and
to the Offices of the President and the vice-President of India.
I have put before this House the broad indications
of the agreements arrived at between us and the Government of India. As
the Hon'ble Members will, no doubt, observe, the attitude of the Government
of India has been most helpful. A satisfactory position has emerged and
we are now able to assess the basic issues of our constitutional relationship
with India in clearer terms. There has been a good deal of accommodation of our respective points of view. Hotly the
representatives of the Government
of India and the Kashmir Delegation, have been impelled by the desire
to strengthen further the existing relationship to remove all obscurity
and vagueness. We are convinced, as ever before, that we have the full
support both of the Government and the people of India in the fulfillment
of our democratic ideals and the realization of our objectives.