By Mian Abdul Qayoom

Mian Abdul Qayoom Photo: Bilal Bahadur
Advocate Mian Abdul Qayoom

When Security Council received the report of the United Nation’s Commission for India and Pakistan (UNCIP) along with one by General A G L McNaughton, on the outcome of his discussion with the representatives of India and Pakistan it passed a resolution (No. 80 of 1950) terminating the UNICP. The reports were initiated in pursuance of the decision taken by the Security Council on December 17, 1949.

The UNSC also called upon the Governments of India and Pakistan to immediately prepare and execute within a period of five months a programme of demilitarization, on the basis of the principles of laid out in General McNaughton’s proposal. It also allowed such modifications of those principles as may be mutually agreed upon, and decided to appoint a United Nations representative, authorizing him to assist in the preparation and to supervise the implementation of the programme of demilitarization. The UN representative was also tasked to arrange for the Plebiscite Administrator for holding a plebiscite.

On April 12, 1950, the UNSC appointed Sir Owen Dixon as the UN representative. Pakistan and India accepted the transfer to him the functions of UNCIP on 15 May, 1950 and June 1, 1950, as a result of which the commission ceased to exist from May 31, 1950.

Dixon visited Srinagar on June 7, 1950, and toured the State extensively including Bandipora, Sonamarg, Baltal, Poonch and the adjacent areas of Rawalakot and the posts along the Jhelum valley Road, Skardu and Gilgit, Leh and Jammu. He also held talks with Sheikh Abdullah and submitted a report to the UNSC on 15/09/1950, stating:

“At all events, I have formed the opinion that if there is any chance of settling the dispute over Kashmir by agreement between India and Pakistan, it now lies in partition and in some means allocating the valley rather than in an overall plebiscite….”

It was, however, on October 27, 1950, that “General Council of All J&K National Conference”, in order to frustrate the UN Resolutions and render these redundant, adopted a resolution, recommending the convening of a Constituent Assembly for determining the “The Future shape and affiliation of the State of J&K”.

The Security Council took a strong notice of the NC resolution, and by virtue of its own resolution dated 30.03.1951observed that the final disposition on the State is to be made in accordance with the Security Council Resolutions of 21/04/1948, 03/06/1948, 14/03/1950 and the UNCIP resolutions of 13/08/1948 and 05/01/1949 through an impartial plebiscite under the UN auspices.

The Council affirmed that the convening of Constituent Assembly and any action that assembly might attempt to take to determine the future shape and affiliation of the entire state or any part thereof would not constitute a disposition of the State.

The Security Council also decided to appoint a UN representative in succession to Dixon and instructed him to proceed to the sub-continent to effect the demilitarization of the State of J&K on the basis of UNCIP resolutions dated 13/08/1948 and 05/01/1949.

Pt Nehru, who all along was insincere in implementing the UN resolutions, adopted a game of hide and seek while speaking at a session of National Conference at Srinagar on 04.06.1951. He rejected the proposal of demilitarization of Kashmir. He also spoke about the constituent assembly and the proposed election for it. As a consequence of the debate the constituent assembly was convened in October 1951 and Sheikh Abdullah’s National Conference and those sympathetic to it won all the seats unopposed.

Earlier to the convening of the Constituent Assembly and also when Sir Owen Dixon’s efforts did not bear any fruit, an informal meeting of the Prime Ministers of India and Pakistan was arranged in London by Commonwealth Premiers on January 16, 1951 at the Australian’s Prime Minister’s suite. The Australian Prime Minister urged the need for early settlement of the Kashmir dispute and suggested that a brigade of commonwealth troops be posted in the State for facilitating a limited plebiscite instead of an overall one.

Nehru after referring to Dixon’s opinion that an overall plebiscite was not feasible maintained that he could take no decision on the issue without consulting his colleagues in Delhi and Kashmir. The discussion failed to lead to a solution. However, on 12/02/1951 Nehru rejected the suggestion of commonwealth troops or any other troops landing in Kashmir.

According to Alastair Lamb (Kashmir a Disputed Legacy, 1846-1990), the objective of constituent assembly “to determine the future shape and affiliation of State of J&K” appeared to conflict with the resolutions of Security Council, which was also endeavouring in rather different ways to decide on the future of the State, a question which it considered to be still sub-judice.

“Jawaharlal Nehru also saw advantage in the constituent assembly, as it would reinforce the argument that Sheikh Abdullah’s National Conference really did represent the Will of the people of J&K and the election to which it gave rise could be presented to the world opinion as a substitute for a plebiscite…,” Lamb says, and adds;

“It was evident that the constituent would take its time in the production of a definitive document. Meanwhile given the Indian diplomatic emphasis, which was being placed on its proceedings, Nehru soon concluded that it would be as well to obtain from Sheikh Mohammad Abdullah, some interim based definition of the kind of relationship between the Indian Union and the State of J&K that would in due course emerge. Above all it would be extremely useful to have the ambiguities of the interpretation of the word ‘accession’ which we have just noted, clarified….”

He also adds that:

“It was with the aforesaid objective that Government of India requested the then Kashmiri leaders to come to Delhi for discussion. Accordingly a Kashmiri delegation, headed by Mirza Afzal Beg, including D P Dhar and Mir Qasim arrived in New Delhi on 17.06.1952 and immediately started discussions with Nehru. A month later on 17th July, Sheikh Abdullah joined in the talks along with Bakshi Ghulam Mohammad, G.M. Sadiq and Moulana Syed Masoodi, which also included a number of politicians representing the opposition parties. The result was an agreement between Sheikh Abdullah’s faction and Jawaharlal Nehru, reached on 24th July, often referred to as the ‘Delhi Agreement’, which Sheikh Abdullah outlined in Srinagar to the J&K Constituent Assembly on 11/08/1952.”

Nayla Ali Khan, in her article “Turning the clock back” published by a local daily on 20/09/2016, states that:

“At the talks held between the representatives of the State Government and the Indian Government the Kashmiri delegation relented on just one issue. It conceded the extension of the Indian Supreme Court’s arbitrating jurisdiction to the State in case of dispute between the Federal Govt. and the State Govt. or between J&K and another State of the Indian Union. But the delegation shrewdly disallowed an extension of the Indian Supreme Court’s purview of the State as the ultimate arbitrator in all civil and criminal cases before J&K Courts….”

However, from the statement of Sheikh Abdullah in the State Constituent Assembly on 11/08/1952, reproduced by M S Deora, R Grover in “Documents on Kashmir Problem”, it emerges that besides reaching an agreement on citizenship, Indian flag, headship of the State and financial integration, the parties agreed to the Supreme Court jurisdiction in the following manner :

“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 with the fundamental rights, which are to be agreed to by the State.

On behalf of the Government of India it was recommended that the Advisory Board in the State designated “His Highness’s Board of Judicial Advisors” should be abolished and the jurisdiction exercised by it should be vested in the Supreme Court, 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 should need a detailed examination and consequently it was agreed that we should have time to consider it further.”

With regard to emergency powers, Sheikh Abdullah stated:

“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.

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 first paragraph (1) of the following words “but in regard to internal disturbances at the request or with the concurrence of the Govt. of the State”.

We generally accepted this position, but wanted some time to consider the implications and consequence as laid down in Article 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.”

It is significant that while as Article 353 of the constitution of India provides, that during the period the proclamation of emergency is in operation, the executive power of the union shall extend to the giving of the directions to any state, as to the manner in which the executive powers thereof, is to be exercised and that the power of Parliament to make laws with respect to any matter, shall include power to make laws, conferring powers and imposing duties or authorizing the conferring of powers and the imposition of duties upon the union or officers and authorities of the union as respects that matter, notwithstanding that it is one, which is not enumerated in the Union list…, Article 355 provides, that it shall be the duty of the union to protect every state against external aggression and internal disturbance and to ensure that the Govt. of every state is carried on in accordance with the provisions of the Constitution.

Further Article 358 provides, for the suspension of the provisions of Article 19 during emergencies and Article 359 provides for the suspension of the enforcement of the rights conferred by part iii of the constitution of India during emergencies.

Dr Karan Singh, who before and after Delhi Agreement was in constant touch with Pt Nehru, in his book (J&K 1949-64 at Page 32), with reference to Pt Nehru’s letter dated 26/07/1952 states that the agreement regarding the constitutional relationship between India and Kashmir was announced on 24/07/1952. Its salient features were:

The head of the State of J&K would be a person recommended by the State Legislature and recognized by the President of India;

The Indian flag would have the same status in Kashmir as in any part of India, but the Kashmir State flag would be retained;

Citizenship would be common in two parts of the country, but the State legislature would have power to define and regulate the rights and privileges of the permanent residents in Kashmir;

The fundamental rights as laid down in the Indian constitution would be extended to Kashmir, but these would not come in the State’s programme of Land Reforms;

Power to reprieve or commute death sentence would belong to President of India;

The Indian President’s power to declare a State of Emergency in case of external danger or internal disturbances would be extended to Kashmir, but in regard to internal disturbances it would be used only at the request of the State Govt.;

Residuary power would be retained by the State but the state could transfer more rights to the Union;

Supreme Court could adjudicate in regard to dispute between the state and the Centre and other provincial Governments and on fundamental rights agreed to by the State; and

The details of financial arrangements would be further considered.

In reply to two of his letters dated 03 and 07 of August, 1952, Pt. Nehru informed Dr Karan Singh that:

“You will have noticed that several other matters (besides the headship of the State), were agreed to between us. The sole picture has to be seen together. Some of these other points bring the J&K State closer to India and to our constitution. If all this is given effect to, then the other remaining provisions need not make much difference. In a sense we get a broad framework of the constitution, in its relation to India. The details can be filled in later. In filling in these details also, of course care should be taken.

Our parliament has accepted this broad framework. It is desirable and necessary that the constituent assembly of the State J&K should do this also, that is to say, it should adopt a similar procedure and, by resolution, accept the points of agreement as we have done here.

This is our first and basic suggestion to Sheikh Abdullah. Having done this the constituent assembly can proceed to consider the other important matter namely, that relating to head of the State. We have suggested that the identical language used by us and agreed upon, should be used. Some minor ancillary provisions might be added. To this might be added that the Government of J&K State be authorized to forward the decision of the Constituent Assembly to the President of India and should further be authorized to take such other steps as may be necessary to implement that decision….”

It was sheikh Abdullah himself, who had second thoughts about the Delhi Agreement later, as would be seen from a message sent by him to Pt Nehru on 10/06/1953 through K N Katjoo, the Union Home Minister, who was on an official tour to Srinagar. While stating that the political situation in the valley continues to be extremely flute, Katjoo informed Nehru as under:

“I was shocked as astounded to gather from a private meeting with Sheikh Abdullah last week, that he seems to have decided to go back, upon the solemn agreements which he has concluded with India and upon his clear commitments. This cannot be allowed as it will make our position absolutely possible and be a grave blow to our national interest and naturally to our international position also. I need not mention the grave and wide spread repercussions that will result from such a development. The problem will claim your immediate attention upon your return for a final and decisive solution…..”

Sheikh Abdullah in his speeches at Jammu and Srinagar on 12th, 15th and 18th of 1953, had not only hinted that he was being forced to reassess the Delhi Agreement due to the growing incidents of communal activities in Jammu and India, but also insisted that the State had acceded on only three subjects, (referring to the Instrument of Accession) and had complete autonomy in all other matters, which was clearly a rejection of Delhi Agreement by Sheikh himself.

The things that followed thereafter resulted in dismissal of Sheikh Abdullah’s Government and in his arrest and also in the installation of Bakshi Ghulam Mohammad as Prime Minister of the State and with his collaboration thereafter, India did the rest easily.

It is noteworthy that while all the aforesaid developments were going on, the Security Council continued the consideration of the Kashmir dispute and passed a resolution on 23/12/1952, urging upon Governments of India and Pakistan to enter into immediate negotiations, under the auspices of UN representatives for India and Pakistan, in order to reach an agreement on the specific number of forces to remain on each side of the ceasefire line at the end of demilitarization. This number had to be between 3000 to 6000 armed forces remaining on the Pakistan side of the ceasefire line and between 12000 to 18000 armed forces remaining on the Indian side. It also requested both the Governments of India and Pakistan to report to the Security Council, not later than 30 days from the date of the adoption of the resolution and also asked its representative to keep the Security Council informed of any progress.

India as usual sabotaged all the efforts of the Security Council and even when it entered into direct negotiations with Pakistan and agreed on 20/08/1953 that a Plebiscite Administrator would be appointed by the end of April 1954, it went back on its promise under the false pretext of American aid to Pakistan. On 22/03/1955, the Indian Prime Minister declared that Pakistan was out of court.

The Indian Government also made the Kashmir constituent assembly to adopt a constitution on 17/11/1956, to be enforced in full from 26/01/1957, section 3 of which declared the State of J&K is and shall be an integral part of Indian union.

The Security Council, however, rebuffed India and in continuation to its resolution dated 30/03/1951, passed another resolution on 24/01/1957, declaring once again that the convening of constituent assembly as recommended by the General Council of the All J&K National Conference and any action that assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire state or any part thereof or action by the parties concerned, in support of any such action by the assembly, would not constitute a disposition of the State in accordance with the principle embodied in the UN Security Council resolution dated 21/04/1948, 03/06/948, 14/03/1950, 30/03/1951 and the UNCIP resolution dated 13/08/1948 and 05/01/1949. The UNSC decided to continue the consideration of the Kashmir dispute in future.

The Delhi Agreement, the convening of Constituent Assembly and the passing of constitution by it, having been rejected by the Security Council, therefore, these documents have no legal sanctity. This position is also recognized by the proviso appended to Article 253 of the Constitution of India, which provides that while as parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty or agreement or convention with any other country or countries or any decision made at the International conference, association or other body, but after the commencement of the constitution (Application to J&K) order, 1954, no decision affecting the disposition of the State of J&K shall be made by the Government of India without the consent of the Government of the State, which Govt. has to be brought into existence with a plenary power of deciding about the future shape of J&K State, by ascertaining the will of the people in a democratic manner.

Proviso to Article 253 provides is clinching evidence to the effect that the future of the State is at large and shall be determined by a reference to the people, through a free and impartial plebiscite. It is the sincerity and honesty of India which has been at the test for the last 70 years, as it is India which has all along protracted the implementation of the UN Resolutions on one pretext or the other. It is better for India to understand the ground reality of Kashmir and in order to bring an end to the bloodbath in Kashmir and establish peace and tranquillity in the sub-continent, concede to the right of the people and take concrete steps to hold a plebiscite under the UN auspices in the State of J&K.

(Senior Advocate, Mian Abdul Qayoom is president of Kashmir Bar Association.)


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