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BJS & Kashmir’s Constitutional Position


-Pandit Deendayal Upadhyaya

Bharatiya Jana Sangh can legitimately claim the credit for having saved the State of Jammu and Kashmir for India. While making this statement we do not mean to disregard the heroic part played by our valiant armed forces in defending and freeing the State from Pakistani invaders. If Pakistan still continues to illegally occupy a part of the State it is not because our military could not or cannot regain it but because they are not allowed to do so. But even that part which the Indian soldiers and the Indian people including those of Kashmir had liberated from the aggressor could not have existed as an integral part of India but for the vigilance and continued agitation involving great suffering and sacrifice of the praja parishad in the State and the Bharatiya Jana Sangh in the rest of the country. The Government had followed a policy which would have undone all that than military had done. Sheikh Mohd. Abdullah wanted to dispose what Maharaja Hari Singh had proposed. How Pandit Premnath Dogra and Doctor Syama Prasad Mookerjee foiled his attempts and forced the Prime Minister to change his Kashmir policy is a story too well–known to need recounting. After the martyrdom of Dr. Syama Prasad Mookerjee and the arrest of Sheikh Abdullah the direction of the Kashmir policy had changed. Instead of going farther and farther away from India, the Government of J & K began to move closer to the motherland. But it will be wrong to suppose that the integration of the State with Bharat has been achieved simply by a change in the direction a few steps since taken have, of course, furthered this process or integration, but still there remains much to do while people in general, being ignorant of details, are in different to the carious constitutional provisions, so long as thing go on smoothly. Jana Sangh has all along been watchful of the provisions of the constitutional relationship of the State with India. And we shall not feel secure till the State stands on par with other states of the country.

The removal of the permit system, the extension of the full jurisdiction of the Supreme Court and that of the Election Commission are some steps in the right direction that have been taken recently. The legislature of the J & K State passed a bill to that effect and consequently the President made an order in that behalf. It has fulfilled a long standing demand of the people in the State. It was in February last that Bharatiya Jana Sangh observed Kashmir Day throughout the country. It seems that Government of Jammu Kashmir felt that they could no longer continue these irksome provisions. They acted wisely, for may be by would have meant greater agitation by the people. The permit system was abolished later on 1st April, 1959, and a few months later the amending bill with regard to other provisions was also adopted.

Article 136 of the Constitution is now applicable also to the State of Jammu and Kashmir. Accordingly the Supreme Court can act not only as a court of appeal but also as an original court in certain matters. It can exercise discretion in “granting special leave to appeal from any judgement, decree, sentence or order in any cause or matter passed or made by any court or tribunal in the State of Jammu & Kashmir as in the rest of the country. Provisions of Articles 218, 220 and 222 have also been extended to that State. Articles 218 and 222 have also been extended to that State. Article 218 gives security to the judges of the High Court and they can act more freely in the discharge of their duties in dispensing justice. They cannot be removed excepting after an address by each house of the parliament. The President has also been empowered to transfer judges to and from the High Court of the State, but he can exercise this power only in consultation with the Sadar–I–Riyasat. It is surprising why this limiting clause should have been added to the provisions of Article 222. The President issues an order of transfer only after consulting the Chief Justice of India. In the case of the J & K High Court he will be required to consult the Dadri–riyasat also. It may look simple, but it denotes a basic difference between the constitutional provisions of the J & K State and other States. While in respect of all other states the President can exercise power in his own discretion, he cannot do so with regard to any matter concerning Jammu and Kashmir State without the concurrence of the State Government. Declaration of an emergency in case of foreign invasion is the only exception to the rule.”

Sovereignty in Kashmir is supposed to reside in the people of Kashmir and the Government of State, People are not allowed to deal with the Union in their individual right. They are represented in all matters connected with the Union by, and through, the Legislative Assembly and the Government of the State. The Union similarly cannot exercise any right in the State except with the concurrence of the State Government and the State Legislature; so far as the Indian Constitution is concerned simply an order of the President under Article 270 is deemed sufficient to make all sorts or amendments in the provisions of the Constitution as applicable to J & K State. The parliament is not asked to pass or discuss it. But the president cannot make this order unless the State Legislature has already enacted in that behalf. The real power is not with the President but with the State Government. Similarly the citizens of J & K State are not allowed to elect their representatives to the Lok Sabha. They are nominated by the president. But the nominees must be earlier elected by the State Legislative Assembly.

These anomalies indicate that the Constitution does not represent the national and emotional unity of the people of the State with the rest of India. Unless these provisions are changed the problem of Kashmir will not be understood in its right perspective. If Kashmir is India, the Indian Constitution must apply in its entirety to that State and the people residing there should be afforded all opportunities to participate with their compatriots in the country in making and moulding national policies and their direct association with the parliament representing the sovereignty of the Indian people as a whole. The right to elect representatives to the Lok Sabha is a basic right of an Indian citizen and its denial only indicates a wedge between the mother country and the particular unit.

There are also similar provisions in a number of places where the parliament or the president does not enjoy powers that they do either regard to all other states. The Government of J & K comes in between. The party in power has developed a vested interest. The President of parliament is powerless. They cannot safeguard the interests of the people and the country, if the State Government disregards them. The president cannot act as he did in the case of Kerala under similar, or even worse, circumstances in J & K. The whole thing has to be changed.

This attitude of the J & K Government is also visible in provisions concerning elections in the State. The jurisdiction of the Election Commission has been extended only in a general way. Articles 325, 326, 327 and 328 are not applicable to that State. Therefore the peoples Representatives Act under which the various elections are held have no force in Jammu and Kashmir State. The Delimitation Commission will not be concerned with that State. The citizens of India outside the State cannot contest any election in the State, even from the legislative assembly constituency to be later nominated by the President to the Lok Sabha. Without these articles full applying to the State, the purpose of extending the jurisdiction of the Election Commission will not be served. The same old malpractices may continue and the Election Commission may find itself as ineffective and powerless ad the president is in other respects.

Bharatiya Jana Sangh has therefore at its Nagpur Session demanded that Article 370 of the Constitution which was of a temporary nature should be repealed. So long as this Article continues, normalcy in Kashmir in the matter of constitutional arrangements vis–a–vis Bharat will not be restored. The so–called special position of the State only grants certain powers to the State Government, to the exclusion of the people. The discriminatory treatment is being explained by anti–national elements to the disadvantage of India. We are losing both ways. It is therefore necessary that citizens of that State enjoy all those rights that we enjoy, and all discrimination is put an end to.

[Organiser, Political Diary, 29 February, 1960]