Author: Hari Om
Publication: Organiser
Date: December 28, 2003
The National Conference reiterated
that New Delhi has to recognise the genuine aspirations of the people (read
Kashmiris) and agree to an arrangement which given them pride in their
Kashmiriyat and a mechanism to further their aspirations while remaining
part of the Indian Union. In effect, it has asked the Central Government
to grant to Jammu and Kashmir what it calls the pre-1953 constitutional
status in order to win over the hearts of the "alienated Kashmiris", end
the menace of terrorism in the State, solve the 56-year-old "Kashmiri problem"
and forge a lasting peace in South Asia.
Will the restoration of the pre-1953
constitutional position strength democracy in Jammu and Kashmir or redress
the grievances of the Kashmiris and re-empower them? A cursory scrutiny
of the political system as it existed in Jammu and Kashmir prior to the
dismissal and arrest of Sheikh Abdullah on August 9, 1953, suggests that
it will not. On the contrary, this restoration will-apart from emboldening
the believers in the concept of Jammu and Kashmir's segregation from India-at
once subvert all democratic institutions, deprive the common people of
whatever civil liberties and political rights they have enjoyed so far,
fetter the Press and the judiciary and re-establish a local oligarchy.
In addition, this would automatically mean committed judiciary and committed
Sadar-e-Riyasat (Governor). The fundamental reason: Such a drastic return
will re-arm the council of ministers with absolute, unbridled executive,
legislative and judicial powers.
It needs to be underlined that between
September 7, 1939 and January 26, 1957, the state ruler and the ruling
elite derived their authority from the Jammu and Kashmir Constitutional
Act (JKCA) of 1939. The ruler, Hari Singh, had enacted this Act to conciliate
Sheikh Abdullah and his supporters. They had been demanding since 1931
the replacement of autocracy with democracy. Although an Assembly of 75
elected and nominated members was set up in accordance with the provisions
of the Act of 1939, Sheikh Abdullah and his colleagues continued their
protest. In fact, National Conference repudiated outright the JKCA of 1939
and declared that they would not withdraw their struggle until a "responsible
government" had been established in Jammu and Kashmir.
The Naitonal Conference chief and
his colleagues, including Mirza Afzal Beig, opposed the JKCA of 1939 on
seven counts. One, it contained provisions which obstructed the formation
of a responsible government and facilitated the domination and exploitation
of the people. Two, it was not framed by a Constitutent Assembly elected
on an adult franchise or a franchise which approximated to it as nearly
as possible, but by the ruler had his henchmen. Three, it recognised the
ruler and not the people as the "fountain head of all essential attributes
of sovereignty". Four, it did not recognise the "doctrine of supremacy
of the legislature over the executive". Five, it did not provide for an
independent judiciary. Six, it did not grant freedom to the Press by repealing
the highly obnoxious and primitive Jammu and Kashmir Press and Publication
Act (JKPPA) of 1932 under which the ruling elite had the power to seize
any Press and fine the press for what it could construe as a "seditious"
writing. And, finally, it, like the Indian Councils Act of 1909 and 1919
and the Government of India Act of 1935, introduced communal electorates.
When despite their five-year-long
struggle, Hari Singh did not introduce any democratic principles, Sheikh
Abdullah and other pro-democracy leaders stepped up their efforts in order
to seek the withdrawal of the JKCA of 1939. So much so, they started in
1946 "Quit Kashmir Movement". In the 1946 Quit Kashmir Movement, the National
Conference cadres openly defied the ruler's authority, confronted police
several times, attacked police stations and all other symbols of the government,
demanded the dethronement of Hari Singh and the estbalishment of a genuinely-elected
people's government. Order was restored only after the police and the army
swung into action and imprisoned Sheikh Abdullah and other prominent Naitonal
Conference leaders on the charge of "sedition".
It was under these circumstances,
and in the wake of full-scale war with Pakistan, that Jammu and Kashmir
acceded to the Indian Dominion on October 26, 1947. Ironically, the state's
accession and Sheikh Abdullah's appointment as emergency administrator
at Jawaharlal Nehru's behest in the same month did not ameliorate the lot
of the people in any way. For, Sheikh Abdullah, rather than repealing the
JKCA of 1939, chose to exploit it to consolidate his own position, marginalise
his senior colleagues like Bakshi Ghulam Mohammad, Ghulam Mohammad Sadiq,
Mohi-ud-Din Kara and Maulana Masoodi and put down his other political rivals
in Jammu, Kashmir and Ladakh. He also exploited to the hilt the JKPPA to
muzzle the Press. Take, for example, a fine of Rs. 1,000 against the Jammu-based
paper, The Kashmir Mall, for the simple reason that it published on February
8, 1952, an article, entitled "Kansa rule and atrocities on children a
good omen". What was the charge agianst the said paper? The charge was
that the impunged article contained details of atrocities the police and
the army had perpetrated on the students of the GGM Science College and
schools in Jammu between January 15 and February 7, 1952, as also a warning
that such brutal actions against children, including girl students, would
only lead to a revolt against the "cruel government of Sheikh Abdullah".
The only fault of the Jammu students was, it would not be out of place
to mention here, their protest against the decision of Sheikh Abdullah
to place the National Conference flag side by side with the national tri-colour
in the GGM Science College. In short, the Sheikh's rule was as despotic
as Hari Singh's.
It was only during the reign of
Bakshi Ghulam Mohammad (August 1953-September 1963) that a number of steps
were taken to democratise the State polity. These included the abrogation
of Section 75 of the JKCA on May 14, 1954 under which the "Council of Ministers"
was the "final interpreter of the Constitution", the abolition of the largely-committed
"His Highness Board of Judicial Advisors", extention of the jurisdiction
of the Supreme Court to Jammu and Kashmir on May 14, 1954 and the adoption
of a new Constitution on November 17, 1956 by the Constituent Assembly
(which had been set up in 1951) and its application on January 26, 1957.
The people's natural right to shape and control political, administrative
and economic policies was recognised and the Press and judiciary freed
by this Constitution.
It is thus clear that a return to
the "pre-1953 constitutional position" or revival of the JKCA of 1939 will
grievously harm the legitimate rights and interests of the people of Jammu
and Kashmir. It must be remembered that the roots of the Kashmiris' alienation
lie not in the central laws but in the misrule of Kashmiri leaders of all
hues, bureaucratic bungling and denial of the legitimate expression of
popular will. What the people of the State actually need is a dispensation
which is genuinely-democratic, people-centric, corruption-free, responsive,
transparent and accountable. They are not for the "healing touch policy"
implemented by the Congress-People's Democratic Party-Panthers Party coalition
Government. For, it is absolutely vague, militant-friendly, discriminatory
and based on what may be legitimately termed as the politics of rhetoric
and deceit.
