Prof. Hari Om of Jammu University asserts that ignoring the implications of a return to the pre-1953 situation in Kashmir would be suicidal - Editor
Will a return to the "pre-1953 situation" in Kashmir redress the grievances of the Kashmiris and recognise their right to shape their political and economic future? A study of the political, constitutional and administrative structure as it existed in Jammu and Kashmir prior to Sheikh Abdullah's dismissal and arrest on August 9, 1953 suggests that it will not. Rather, all the powers, legislative, executive and judicial would be conferred on the "council of ministers' depriving the Kashmiris of whatever political rights they have exercised so far.
Between September 7, 1939 and January 26, 1957, the Jammu and Kashmir constitution was ostensibly used by the state ruler, Hari Singh, to placate the Kashmiris. Under the leadership of Sheikh Abdullah, they were demanding since 1931 the replacement of autacracy by democracy. Though a legislative assembly of 75 elected and nominated members was set up in accordance with the Act of 1939, Sheikh Abdullah and his colleagues continued their protest.
Act of 1939
The pro-democratic leaders felt that the Act of 1939 obstructed the formation of responsible government and facilitated the exploitadon of the people. The Act was also condemned because it was not framed by a consdtuent assembly elected on adult franshise, but by the ruler and his henchmen. Without any elected assembly, the Act recognised the ruler as the "fountain head of all essential attributes of sovereignty" with no court, person or body having the right to overrule his measures or question their constitutional validity. The Act did not also recognise the "doctrine of supremacy of the legislature" nor did it provide for an independent judiciary or grant freedom to press. The institution of "communal electorates" was also introduced by the Act.
When, despite their efforts, democratic principles were not introduced in the state's polity, Sheikh Abdullah and other pro-democracy leaders intensified their struggb to seek the withdrawal of the Act. This struggle ultimately developed into the "1946 Quit Kashmir movement", with the National Conference cadres challenging the ruler's authority, confronting the police, attacking police stations and other symbols of the government, demanding tlle dethronement of Hari Singh and establishment of an elected government. To restore order, the police and the army had to swing into action and imprison Sheikh Abdullah and other pro-democracy leaders on the charge of sediton.
Unda these circumstances and in wake of the Pakistani aggression, Jammu and Kashmir acceded to the Indian dominion on October 26, 1947. Unfortunately, the state's accession and the Sheikh's appointment as its "emergency administrator" in October 1947 did not bring any relief to the people. For the Sheikh rather than repeal the Act of 1939, chose to exploit it to strengthen his own position, marginalise his associates like Bakshi Ghulam Mohammed, Ghulam Mohammed Sadiq, Mohi-ud- din Kara and Maulana Masoodi and crush his political opponents in Jammu, Kashmir and Ladakh. It was only during the rule of Bakshi Ghulam Mohammed (August, 1953-September, 1963) that a number of measures were adopted to set up democratic institutions. These included the abrogation on May 14, 1954 of Section 75 of the Act of 1939 under which the "council of ministers" acted as the "final interpreter of the state's constitution". "His Highness's Board of Judicial Advisors" was also abolished on May 14, 1954, the jurisdiction of the Supreme Court was extended to Jammu and Kashmir and on January 26, 1957, the people's representatives in the state's constituent assembly adopted a new constitution recognising the people's right to shape their political, administrative and economic policy. The press was also granted full freedom.
Root of Alienation
Ignoring the implications of a return to the pre- 1953 situation in Kashmir would be suicidal. The roots of the Kashmiris' alienation lie not in the Central laws introduced in the state after August 9, 1953, but in Mr. Farooq Abdullah's misrule, bureaucratic bungling and the denial of the legitimate expression of popular will. To conciliate the "alienated Kashmiri Muslims" and others in Jammu and Kashmira fair, people-oriented political dispensation is needed. To evolve it the Centre has to discard the erstwhile Kashmiri rulers and provide an opportunity to the people to elect a government of their choice. The governor, Mr. K.V. Krishna Rao's move towards holding assembly elections in Jammu and Kashmir is a step in the right direction.
(Courtesy: Times of India, New Delhi, August 17, 1994)
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