A dubious Constitution

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.

Published : Jan 17, 2019 12:30 IST

September 24, 1949: At the opening session of the All Jammu and Kashmir National Conference in Srinagar. Jawaharlal Nehru (fifth from left), Sheikh Abdullah (to his right), Sardar Baldev Singh (second from left), N.V. Gadgil (extreme left) and others are seated on the dais.

September 24, 1949: At the opening session of the All Jammu and Kashmir National Conference in Srinagar. Jawaharlal Nehru (fifth from left), Sheikh Abdullah (to his right), Sardar Baldev Singh (second from left), N.V. Gadgil (extreme left) and others are seated on the dais.

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.

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 suffices 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 confined 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 suffrage 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 first 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 ceasefire 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 flag. 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 effect 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 differences of opinion between members of the Government on basic issues —political, economic and administrative—affecting the vital interests of the States;

“And whereas members of the Government have been publicly expressing sharply conflicting 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 efforts 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 confidence 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 efficient administration has become impracticable;

“And whereas, finally, the functioning of the present Cabinet on the basis of joint responsibility has become impossible and the resultant conflicts 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 staff officer 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 confided 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 officiating 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 official 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 confidante 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 office 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 fish, but don’t wet the hands). The detailed prescription in Nehru’s note reflected 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 unflattering 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 difficulty. 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 briefly 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 off 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 official record. “It will be a part of my personal file ”. 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 confidence in him? In that event, it is they who must resign and move a vote of no-confidence 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, snuffing out its independence, became the order of the day.

Documents revealed nearly half a century later expose the lies uttered in justification. 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

Its legal consequence is set out in a landmark judgment of the Madras High Court InRe: 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 filed 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 first pillar is unswerving loyalty by each and every citizen to the Co nstitution and to the flag 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 fide object of stifling 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, flouting 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 flouts 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 flout the very terms of Article 370. Any order which increased the Centre’s powers or extended to Kashmir constitutional provisions additionally required ratification 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 first 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 specified 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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