Indian Political Science Association The Indian Journal of Political Science

Indian Political Science Association
THE RELATIONS BETWEEN THE INDIAN UNION AND THE STATE OF JAMMU AND
KASHMIR
Author(s): KHAGENDRA CHANDRA PAL
Source: The Indian Journal of Political Science, Vol. 14, No. 4 (October-December, 1953),
pp. 333-346
Published by: Indian Political Science Association
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THE RELATIONS BETWEEN THE INDIAN UNION AND
THE STATE OF JAMMU AND KASHMIR
KHAGENDRA CHANDRA PAL
The State of Jammu and Kashmir is a constituent unit of the

Indian Union and has an area of 84,471 sq. miles and a population
of approximately 4.4 million. It is near the frontiers of as many as
six States, India, Pakistan, Tibet, Afghanistan, China and Russia.
Strategically, it is so placed that a command over its area would be
of tremendous military advantage in any struggle for power in India
and Pakistan and could easily be utilised even as an air-base against
the U.S.S.R. Actually, since January 1948, the Security Council of
the U.N. has been seized of the problem of Jammu and Kashmir as
a result of a complaint by India of aggression by Pakistan. The dis-
pute between India and Pakistan over this issue has not yet been
settled and indeed continues to be surrounded by an atmosphere
of tension which is tempting to all world incendiaries. India is spe-
cially interested in Jammu and Kashmir. For if this State inspite
of its being a Muslim majority area on the border of Pakistan be-
comes a permanent and irrevocable part of secular India through a
popular decision, it will be a significant blow to the late Mr. Jinnah's
Two-Nation Theory.
Now this problem of Jammu and Kashmir, or shortly, Kashmir,
is a very complicated one. Historically, the problem assumed its pre-
sent significance only in 1947, when the British Goverment decided
not only to quit India but also to split it in accordance with the wishes
of the Muslim League. Under the Indian Independence Act 1947,
Paramountcy, i.e., suzerainty of the British Crown over the Indian
States, lapsed as from 15 August 1947. As the White Paper on
Indian States puts it, "All that the Dominion Government inherited
from the Paramount Power was the proviso to Section 7 of the Indian
Independence Act which provided for the continuance, until de-
nounced by either of the parties, of agreements between the Indian
States and the Central and Provincial Governments in regard to spe-
cified matters, such as Customs, Posts and Telegraphs, etc."1
1. White Paper on Indian States, published by the Government of India in
March 1950, p. 31.
334 KHAGENDRA CHANDRA PAL
Upto 15 August 1947 the Britis

operating through the Political Department of the Government of
India provided the nexus between the Indian States and the Central
and Provincial Governments. Under the Government of India Act
1935 the Viceroy as Crown Representative represented to the Ind
States the Paramountry of the British Crown and was at the same
time in relation to British India the head of the Government as
Governor-General. A Press Communique issued on 27 June 1947
read : "In order that the successor Governments will each have an
organisation to conduct its relations with the Indian States when th
Political Department is wound up, His Excellency the Viceroy in co
sultation with the Cabinet has decided to create a New Department
called the States Department to deal with matters arising between
the Central Government and the Indian States. This Department
will be in charge of Sardar Patel, who will work in consultation with
Sardar Abdul Rab Nishtar. The new Department will be organised
in such a way and its work so distributed that at the appropriate time
it can be divided up between thè two successor Governments without
any dislocation."2
The States Department came into being on 5 July 1947, and
Sardar Patel issued a statement on that day, defining the policy of
the Government of India and inviting the States to accede to the
Dominion on the three subjects of Defence, Foreign Affairs and Com-
munications. "Now that British rule is ending", said Sardar Patel,
"the demand has been made that the States should regain their in-
dependence. In so far as paramountcy embodied the submission of
States to foreign will, I have every sympathy with this demand, but
I do not think it can be their desire to utilise this freedom from domi-
nation in a manner which is injurious to the common interests of
India or which militates against the ultimate paramountcy of popular
interests and welfare or which might result in the abandonment of
that mutually useful relationship that has developed between British
India and Indian States during the last century."3
At a special meeting of the Chamber of Princes on 25 July
1947, His Excellency Lord Mountbatten also advised the Rulers to
accede to the appropriate Dominion in regard to the three subjects
of Defence, Foreign Affairs and Communications, and pointed out
that while they were theoretically free to link their future with
2. Ibid, p. 33.
3. Ibid, p. 157.
INDIAN UNION AND KASHMIR 335
whichever Dominion they might care, t

compulsions which could not be evaded
he set up a Negotiating Committee t
States the terms of their accession to the Dominion of India. All
States within the geographical limits of India, barring Hyderabad
Kashmir and Junagadh, acceded to the Indian Dominion by 15 Augu
1947. These accessions implied no financial liability on the part of
the acceding States. The Government of the Indian Dominion and
the acceding States also entered into Standstill Agreements, the
acceptance of which was made conditional on accession by the States.
On 15 September 1947 the Ruler of Junagadh acceded to Pakis-
tan. On geographical and not on communal grounds India refused
to recognise this accession and suggested a popular plebiscite to test
the validity of accession by a Prince in case this accession became
the subject of dispute. On 9 November 1947 the administration of
Junagadh was taken over by the Government of India at the request
of the Nawab's Council. A few days earlier on 24 October 1947
Afridi tribesmen armed with automatic weapons, mortars and trans-
port entered Kashmir from the west and north-west and began to
move rapidly towards Srinagar. On 26 October 1947 the Maharaja
of Kashmir acceded to India, and next day Indian troops were flown
to Srinagar. While accepting Kashmir's accession to India, Lord
Mountbatten wrote to the Maharaja : "Consistently with their
policy that in the case of any State where the issue of accession has
been the subject of dispute, the question of accession should be de-
cided in accordance with the wishes of the people of the State, it is
my Government's wish that, as soon as law and order have been
restored in Kashmir and her soil cleared of the invader, the question
of the State's accession should be settled by a reference to the people."4
Meanwhile Sheikh Abdullah, the Kashmir National Conference
leader, who had been undergoing a sentence of imprisonment for
leading the popular movement in the Sta(te and was released on
29 September 1947, assumed charge of the emergency administration
and led the people's fight against the invaders. All of these invaders
came across and from Pakistan territory. The Pakistan Government
proposed a simultaneous withdrawal of the Indian Forces and the
raiders from Kashmir. To this Mr. Nehru replied on 25 November
1947 : "This was a strange proposal and could only mean that the
raiders were there at the instance of the Pakistan Government."5
4; The Modem Review , November 1947, p. 340.

5. Foreign Affairs Reports , Vol. II, No. 9, p. 114,.
Having failed in persuading Pakista

lodged a formal complaint against P
Pakistan's counter-charges in th
India had never accepted partition
to destroy Pakistan and that Ind
Junagadh and Kashmir. On 20 Jan
appointed a Commission of Enquiry
rity Council Pakistan denied her
Kashmir. When the Commission of
troops in Kashmir, Pakistan simp
participating in the fight since Ma
Commission adopted on 13 August
Pakistan by December 1948 and the
1 January 1949. On 5 January 19
the agreement of both India and Pa
a free and impartial plebiscite. By
agreed to a truce line proposed by
of Enquiry. Since then under the
various attempts have been made to
tions for a popular plebiscite. Sir
tive, made his attempts from Ap
wealth Prime Ministers' Conference in January 1951, and
Dr. Graham, another U. N. Representative, from April 1951
to March 1953. All these negotiations have so far failed
mainly due to disagreement on the quesition of the number and ch
racter of the forces to be maintained on either side of the truce lin
after demilitarisation. On 17, 18, 19 and 20 August 1953 the Pri
Ministers of India and Pakistan met in New Delhi. "In order to fix
some kind of a provisional timetable", said a joint communique issued
after these meetings, "it was decided that the Plebiscite Administra-
tor should be appointed by the end of April 1954".6 But "certain
preliminary issues", presumably relating to withdrawal of forces,
preparation of electoral rolls, the nationality of the Plebiscite Ad-
ministrator, etc., should be considered by the Prime Ministers
"directly". According to the communique, the plebiscite is to be held
in the "entire state".
Meanwhile the internal situation in Kashmir continued to

develop in its own way. Nearly one-third of its territory is under
6. The Statesman, 21 August 1953.
occupation of the Pakistani troops and

Azad Kashmir Government which gets
Pakistan Government. In the Indian pa
the Government of Sheikh Abdullah conti
1953, when he was dismissed from off
and arrested under Kashmir Public Sec
taken up by Bakshi Ghulam Mohammed. On 25 November 1949,
Yuvraj Karan Singh had issued a Proclamation stating that the new
Constitution of India shortly to be adopted by the Constituent
Assembly of India should in so far as it is applicable to the State of
Jammu and Kashmir govern the constitutional relationship between
that State and the Indian Union. Upto 25 January 1950, the constitu-
tional relationship between Kashmir and the Dominion of India was
governed by the Government of India Act 1935, the Indian Indepen-
dence Act 1947, and the Instrument of Accession executed on 26
October 1947. On 26 January 1950 when the new Constitution of
India came into effect the President of the Indian Union issued the
Constitution (Application to Jammu and Kashmir) Order under
Art. 370 listing the Articles of the Indian Constitution along with
their modifications to be applicable to Jammu and Kashmir.
As Kashmir desired to have a Constitution for itself within
the framework of the Constitution of the Indian Union, elections were
held for a Constituent Assembly of Kashmir on 15 October 1951. In
accordance with the wishes of this Constituent Assembly or in con-
sultation with the Government of Kashmir several Orders and Notifi-
cations were made by the President of India, viz., the Constitution
(Application to Jammu and Kashmir) Amendment Order, 20 March
1952, the Constitution (Application to Jammu and Kashmir) Second
Amendment Order, 15 November 1952, Declaration under Art. 370(3)
of the Constitution, 15 November 1952, and the Notification recog-
nising Yuvaraj Karan Singh as Sadar-i-Riyasat of the State, 18
November 1952. Further, on 24 July 1952, Prime Minister Nehru
announced in the House of the People an 8-point Agreement with the
leaders of Kashmir in respect of Citizenship, Fundamental Rights,
State Flag, Head of the State, President's Prerogatives and Emer-
gency Powers, Supreme Court and Financial Integration.
Soon after a rumour gathered momentum that Sheikh Abdullah
was heading for an Independent Kashmir. This led the Praja Parishad
Party of Jammu to start an agitation with the slogan, "One Constitu-
tion, One President, One Flag." The movement was strongly supported
by the Hindu Mahasabha, Jan Sangh and Ram Rajya Parishad.
Dr. S. P. Mookerjee entered Kashmir on

diately arrested by the State Governme
Public Security Act. The legality of his arrest was challenged in
the State High Court on 16 June 1953. Only seven days later he died
In detention. Early in July 1953, the Praja Parshad's agitation was
called off. In August 1953 events moved fast. As Sheikh Abdullah
lost his popular support and was even faced with a split in the Cabi-
net, the Sadar-i-Riyasat used his constitutional powers to dismiss him
from the Prime Ministership. The new Government, headed by
Bakshi Ghulam Mohammad, received on 5 October 1953 a unanimous
vote of confidence from the State's Legislative Assembly.
II
In the light of this history we may now look into the legal
and constitutional relationship between Kashmir and the Indian
Union. As the White Paper on Indian States puts it : "The form
of the Instrument of Accession executed by the Ruler of the State is
the same as that of the instruments executed by the Rulers of other
acceding States. Legally and constitutionally, therefore, the posi-
tion of this State is the same as that of the other acceding Statek.
The Government of India, no doubt, stand committed to the position
that the accession of this State is subject to the confirmation by the
people of the State. This, however, does not detract from the legal
fact of accession. The State has, therefore, been included in Part
B States."7
But in view of the special circumstances of the State special

provisions for it have been made in the Constitution of India through
Art. 370. This Article is virtually an amendment of the earlier pro-
visions of the Constitution. For it states that "notwithstanding any-
thing in the Constitution" the provisions of Art. 238 relating to Part
B States shall not apply to the State of Jammu and Kashmir. In fact,
it provides that only Articles 1 and 370 are applicable in relation to
Jammu and Kashmir and other Articles subject to exceptions and
modifications specified by an order of the President. In issuing such
an order as relates to Defence, Foreign Affairs, Communications and
ancillary matters the President must consult the Government of the
State. If the order relates to matters other than these, the President
must secure also the concurrence of that Government. The power
of the Indian Parliament to make laws for Kashmir is also limited
7. The White Paper on Indian States, p. 111.
by Art. 370. Parliament can make laws for Kashmir in regard to

those matters in the Union and Concurrent Lists which in consulta-
tion with the State Government the President declares as correspond-
ing to Defence, Foreign Affairs, Communications and ancillary
matters. Parliament can make laws for Kashmir in respect of such
currence of the State Government, the President may specify.
All these are temporary and transitional provisions. If an
order has been issued by the President in respect of a matter where
he is required to act with the concurrence of the State Government
before the convening of the Constituent Assembly of Kashmir, the
matter shall be placed before such Assembly for such decision as it
may take thereon. The President is also authorised to declare by
public notification that Art. 370 itself shall cease to be operative (in
which case all provisions relating to Part B States will apply to
Kashmir) or shall be operative only with such exceptions and modifi-
cations and from such date as he may specify. But in issuing such
a notification the President is to act on the recommendation of the
Constituent Assembly of Kashmir.
The relationship that has been established between India and
Kashmir on the basis of Art. 370 of the Indian Constitution may be
considered under several heads : (a) territory and population, (b)
organisational connexion between Indian Union and Kashmir, (c)
legislative, administrative, financial and judicial relations.
Legally and constitutionally, Kashmir is a part of Indian terri-
tory. For Art. 370 is a temporary and transitional provision exempt-
ing Kashmir from the operation of Art. 238 and certain other provi-
sions of the Constitution specified by the President, but not from the
operation of Art. 1. An order of the President under Art. 370(3)
cannot modify Art. 1. If it could, the territory of India could be
changed by a simple decision of the President acting on the recom-
mendation of the Kashmir Constituent Assembly, which is prima
facie an astounding proposition. Indeed, under Art. 370 (3) only
"this Article", i.e., Art. 370 can be amended, but not Art. 1. It
should also be noted that Art. 370(1) (c), only states that the provi-
sions of Art. 1 and of Art. 370 "shall apply in relation to that State",
i.e., Kashmir. But certainly Art. 1 does not apply simply "in rela-
tion to" Kashmir. It has another aspect of its application, viz., its
application in relation to the Indian Union as a whole; and this aspect
of its application must come under the protection of Art. 368 which
requires that any amendment of th

the support of (a) a majority of tot
Parliament, (b) a two-thirds majori
present and voting, and (c) the Pre
cation to Jammu and Kashmir) Order, 26 January 1950, provides
further that no such amendment shall have effect in relation to the
State of Jammu and Kashmir unless applied by order of the Pre-
sident under Art. 370(1). Dr. A. K. Ghosal rightly observes : "Under
Art. 1 of the Constitution Kashmir becomes permanently and irre-
vocably a part and a constituent unit of the Union of India along
with other States of all the different categories. This basic fact
should never be lost sight of".8
A resolution of the Working Committee of the All-India Hindu
Mahasabha adopted on 23rd August, 1953 points out that "the acces-
sion of the State of Jammu and Kashmir to India was and is final
and irrevocable under Section 6 of the Government of India Act as
amended by the Indian Independence Act. On the execution of the
Instrument of Accession by the then Ruler of the State and on its
acceptance by the then Governor-General of India that State be-
came an integral part of the Dominion of India. Under the Consti-
tution of India the position is pefrectly clear that th,e State of
Jammu and Kashmir is a Part B State and is one of the component
parts of the Union of India". Indeed, "there is no authority or func-
tionary to allow the secession of any part of the territory of the
Union of India in any shape or form
popular wishes in respect of Bengal an

sultation with the elected members of
Applying that test the ratification o
Constituent Assembly meant a clear ver
in favour of accession to India".®
The provisions of the Indian Constitution relating to citizen-

ship do not apply to Kashmir. But the Agreement of July 1952 pro-
vides that though the State legislature of Kashmir will have the
power to define and regulate the rights and privileges of the State
subjects, especially with regard to the acquisition of immovable pro-
perty, appointments, etc., and that special provision can be made for
the return of migrants from Pakistan, citizenship for India and
Kashmir will be common. Under this Agreement Fundamental
8. The Modern Review, January 1953, p. 42.

9. The Amrita Bazar Patrika, 24 August 1953.
Rights of the Indian Constitution wil

ject to the steps to be taken to safegu
State and the interests of security ari
conditions. It is arguable that even pri
of the Delhi Agreement by the Const
Indian citizens, apart from the citizen
their fundamental rights in Kashmir.
of the Indian Constitution all citizens
throughout the territory of India and
territory of Iridia. Under Art. 32 the
for the protection of these rights and Art. 144 requires that "all
authorities, civil and judicial in the territory of India shall act in
aid of the Supreme Court". A test case arose in this respect when
Dr. S. P. Mookerjee's detention was challenged in June 1953 in the
Kashmir High Court. The law on this point has not been authorita-
tively declared, for Dr. Mookerjee died before any judgement was
delivered in this case.
Organisationally, the connexions between India and Kashmir

are rather small, though by no means unimportant. Under the exis-
ting arrangements the Government of the State of Jammu and Kash-
mir means the person for the time being recognised by the President
on the recommendation of the Legislative Assembly of the State as
the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of
the Council of Ministers of the State for the time being in office.10
This is in accordance with the provisions of the Delhi Agreement of
July 1952 which provided that a person recommended by the State
legislature and recognised by the President would replace the institu-
tion of dynastic rulership, the method of selection being left to the
State. In all other particulars, except presumably his emoluments,
the head of the State is governed by the same conditions as Governors.
When Sheikh Abdullah was dismissed on 8 August, 1953 by
the Sadar-i-Riyasat, the constitutionality of the latter's act was
doubted in certain quarters. It might be pointed out to them that
under the Delhi Agreement he has powers equivalent to those of a
Governor whose Ministers, by virtue of Art. 164 of the Indian Con-
stitution hold office during his pleasure.
Kashmir is represented in the Parliament of India 'by 10

members nominated by the President, 6 in the House of the People
10. C.0. 44: Declaration under Art. 370(3) of the Constitution, 15 November
1952.
and 4 in the Council of States.11 There seems to be a certain ano-

maly in this regard. Arts 5-11 dealing with Citizenship do not a
to Kashmir. Kashmiris, therefore, cannot claim Indian citizen
so that under Art. 102(d) the right of Kashmiri members to sit
Parliament might be questioned. However, these members along
with other than Indian M.P.'s swear or affirm allegiance to the Indian
Constitution and are entitled to vote in the election of the Indian
President.12 The right of voting in the elections of the Indian Pre-
sident has also been extended to the members of the Kashmir Consti-
tuent Assembly. Another organisational connexion between India
and Kashmir arises in regard to the Armed Forces of the State. The
Armed Forces of Kashmir form part of the Armed Forces of the
Union under Art. 259 read with the Constitution (Application to
Jammu and Kashmir) Order, 26 January 1950. Under this Order
Kashmir may, until Parliament by law otherwise provides "and the
concurrence of the State to such law has been obtained", continue to
maintain the said Forces subject to such general or special orders as
the President may from time to time issue in that behalf. This part
of the Order apparently makes a vain attempt to reduce the powers
of the Indian Parliament under Art. 370(1) (b) (i) which autho-
rises it to make laws in matters of Defence if the President has issued
an order in this behalf after simply consulting the State Govern-
ment without necessarily securing its concurrence. The first Scher
dule of the Constitution (Application to Jammu and Kashmir)
Order specifically provides that without further consultation with
the State Government the Indian Parliament can make laws relating
to "naval, military and air forces and other armed forces of the
Union".
Parliament's law-making authority in relation to Kashmir is

confined to some 38 out of 97 entries of the Union List at present.
Matters relating to Defence, Foreign Affairs, Communications and
ancillary matters generally are subject to the jurisdiction of the
Indian Parliament. Even in these limited fields there are further re-
strictions. For instance, Parliament may make laws for Defence of
India and every part thereof including preparation for defence, but
not for "all such acts as may be conducive in times of war to its pro-
li. The Constitution of India, Schedule 4; Representation of the Peoples Act

1950; the Constitution (Application to Jammu and Kashmir) Order
26 January 1950. '
12. Compare the original
20 March 1952 and 15 November 1952.
secution and after its termination

for "industries declared by Parliam
the purpose of defence."13 Similarly, though naturalisation and
aliens are matters for Parliamentary law-making, citizenship is not.14
Again, in respect of Communications, Parliament's authority for law-
making is subject to several restrictions in regard to the railways in
the State, national highways, etc. Though Parliament can legislate
on the constitution and organisation of the Supreme Court, it may
not change its jurisdiction and powers in respect of Kashmir.15
The executive authority of Kashmir, like that of other States,

is under obligation to ensure compliance with the union laws and is
to be so exercised as not to impede or prejudice the exercise of the
executive authority of the Union which extends to giving to the
State executive such directions as may be necessary for that purpose.
As in the case of other States, the President may with the consent
of the Government of Kashmir entrust to that Government or to its
officers functions in relation to any matter to which the executive
power of the Union extends .... Again, as in the case of other States,
a law made by Parliament which applies to Kashmir may confer
powers and impose duties, or authorise the conferring of powers and
the imposition of duties, upon the State or its officers and authorities.
The Delhi Agreement of July 1952 provides that Jammu and Kash-
mir will be covered by the President's power to grant reprieves or
commute death sentences.
But the executive power of the Union in respect of Kashmir

is subject to various restrictions not applicable to other States. For
instance, the executive power of the Union does not extend to the
giving of directions to Kashmir as to the measures to be taken for
the protection of the railways within the State.19 The President of
the Indian Union has in respect of all other States, but not in respect
of Kashmir, power to establish a council for enquiring into and ad-
vising upon, disputes which may arise between States.17 In respect
of all States but Kashmir there is a provision that any failure on
the part of the State to comply with the directions issued by the
Union executive in the exercise of the executive powers of the Union
under the Constitution will enable the President to hold that a
13-15. Compare the original Constitution with the Orders of 26 January 1

20 March 1952 and 15 November 1952.
16. Arts. 257(3), 263, Part XVIII, Art. 365 modified by the Order,
26 January 1950.
situation has arisen in which the government of the State cannot

be carried on in accordance with the provisions of the Constitution
and to apply the provisions relating to the breakdown of the consti-
tutional machinery in States.18
Financially, also, the State of Jammu and Kashmir stands on
a footing different from all other States in relation to India. As en-
tries 82-92 of the Union Legislative List do not apply to Kashmir,
the Indian Parliament has no authority to levy income-tax, customs
duties including export duties, excise duties, corporation tax, estate
duty, succession duty, terminal taxes on goods and passengers, etc.
The whole scheme of distribution of revenues between the Union
and the States provided in Arts. 268-281 also does not apply in rela
tion to Kashmir. Many other financial provisions of the Indian Con-
stitution in Part XII also do not apply to Kashmir. If Kashmir claim
the privileges of reserving for itself all the important items of re-
venue, some have asked, why should the other States bear the burde
of Kashmir's defence. Even the Delhi Agreement of July 1952 sug-
gested no solution to this problem. For that Agreement simply
stated that further consideration of details of the financial arrange-
ments between the Union and the State will be undertaken. The
Comptroller and Auditor-General of India, also, has no power ove
Jammu and Kashmir.
The Indian Constitution vests in the Supreme Court wide

jurisdiction over constitutional, civil and criminal matters, but this
jurisdiction is severely restricted in respect of Kashmir. Under the
existing asrangements the Supreme Court has, to the exclusion of
any other court, original jurisdiction in any dispute among the Go-
vernments of India and of the States including Kashmir. In con-
stitutional cases, the Supreme Court has, also, appellate jurisdiction
in respect of Kashmir like other States. But the Supreme Court
has no appellate jurisdiction over civil and criminal cases from the
High Court of Kashmir. Also, the Supreme Court cannot grant spe-
cial leave to appeal from any judgment, etc., passed by any court or
tribunal in Kashmir. Nor can Parliament extend the jurisdictoin of
the Supreme Court.19 The situation is likely to improve, if the Delhi
Agreement of July 1952 is fully implemented. For it provides that
17-18. Arts. 257(3), 263, Part XVIII, Art. 365 modified by the Order,
26 January 1950.
19. The Constitution (Application to Jammu and Kashmir) Order, -26 January
1960.
the Supreme Court will háve appellat

cases from Kashmir, and that its original jurisdiction will extend
to the Fundamental Rights applying to Kashmir.
There is an additional loophole in the legal and constitutional
relationship between India and Kashmir in that the Emergency Pro-
visions of the Indian Constitution do not apply to Kashmir fully.
The Delhi Agreement of July 1952 only provides that the power to
declare a state of emergency in face of war, external aggression or
internal disturbances under Art. 352 of the Constitution will be ex-
tended to Jammu and Kashmir, but that when such a declaration is
necessitated by internal disturbances the State's concurrence will be
obtained beforehand.
Obviously, the legal and constitutional relations between India

and Kashmir are very complex. But no less complex is the political
aspect based as it is on strategic, legal and constitutional and cul-
tural considerations. The political future of Kashmir depends to a
great extent on the plebiscite to be held in Kashmir. It is not yet
clear what form this plebiscite will take. There is an influential
opinion based on legal grounds maintaining that the promise of a
plebiscite was a "tragic concession"20 resulting from the machina-
tions of the imperialists to which the Government of India succumbed.
According to Pandit Premnath Dogra, President of the General Coun-
cil of the Jammu Praja Parishad, there might be difference of opi-
nion over the degree of accession, but no loyal citizen of India could
ever question the fact of accession.21
Certain factors are operating to emphasise the differences be-

tween the Kashmiris and other Indians, while every attempt should
be made to develop uniformities between them. The Delhi Agree-
ment of July 1952 provided that while India's national flag would be
supreme, the State flag would continue as a symbol for "historical
and sentimental reasons" connected with people's struggle for free-
dom. As Dr. A. K. Ghosal points out, "there need not be any ob-
jection to a separate flag of the State symbolising the popular move-
ment in Kashmir against autocratic rule, if that does not supplant
the national flag, but exists side by side with it and if due respect
is shown to it as the emblem of national unity and national struggle
for freedom".22 Replacement of the dynastic ruler by an elected head
20. Hindu Mahasabha Resolution, 23 August 1953.

21. The Statesman, 7 September 1953.
22. The Modern Review, January 1953, p. 43.
6
346 KHAGENDRA C. PAL- INDIAN UNION AND KASHMIR
styled Sadar-i-Riyasat is also a step in the right direction

secure uniformity similar steps should be taken in other Part B
States. From the point of view of the needs of uniformity in the
Indian nation as a whole, the demand for separate provisions on
Citizenship and Fundamental Rights, and restrictions on the legis-
lative, administrative, financial and judicial powers of the Union over
Kashmir seem to be unhappy, at least if they are to continue on a
permanent basis. Kashmir should have an autonomous status, like
other constituent units of the Indian Union, en a democratic basis
and be free from all forms of communalism. Such an ideal could
perhaps be best achieved, if the Jammu and Kashmir National Con-
ference merged itself with an all-india national and democratic party
like the Indian National Congress to realise high aspirations for na-
tional and international peace and prosperity. The name Jammu
and Kashmir "National" Conference may be liable to misuse o(r
misunderstanding, because Kashmir neither is nor likes to be a na-
tion separate from the great Indian nation.

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Indian Political Science Association

The State of Jammu and Kashmir is a constituent unit of the

Upto 15 August 1947 the Britis

whichever Dominion they might care, t

4; The Modem Review , November 1947, p. 340.

Having failed in persuading Pakista

Meanwhile the internal situation in Kashmir continued to

6. The Statesman, 21 August 1953.

occupation of the Pakistani troops and

Dr. S. P. Mookerjee entered Kashmir on

But in view of the special circumstances of the State special

7. The White Paper on Indian States, p. 111.

by Art. 370. Parliament can make laws for Kashmir in regard to

requires that any amendment of th

popular wishes in respect of Bengal an

The provisions of the Indian Constitution relating to citizen-

8. The Modern Review, January 1953, p. 42.

Rights of the Indian Constitution wil

Organisationally, the connexions between India and Kashmir

Kashmir is represented in the Parliament of India 'by 10

and 4 in the Council of States.11 There seems to be a certain ano-

Parliament's law-making authority in relation to Kashmir is

li. The Constitution of India, Schedule 4; Representation of the Peoples Act

secution and after its termination

The executive authority of Kashmir, like that of other States,

But the executive power of the Union in respect of Kashmir

13-15. Compare the original Constitution with the Orders of 26 January 1

situation has arisen in which the government of the State cannot

The Indian Constitution vests in the Supreme Court wide

the Supreme Court will háve appellat

Obviously, the legal and constitutional relations between India

Certain factors are operating to emphasise the differences be-

20. Hindu Mahasabha Resolution, 23 August 1953.

styled Sadar-i-Riyasat is also a step in the right direction

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