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The Delhi Agreement, 1952
The representatives of Kashmir Government conferred with the representatives
of Indian Government and arrived at an agreement in order to endorse
the main decisions of the Constituent Assembly of the State of J&K.
This arrangement was later on known as the "Delhi Agreement, 1952".
The main features of this agreement were:
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in view of the uniform and consistent stand taken up by the Jammu
and Kashmir Constituent Assembly that sovereignty in all matters
other than those specified in the Instrument of Accession continues
to reside in the State, the Government of India agreed that, while
the residuary powers of legislature vested in the Centre in respect
of all states other than Jammu and Kashmir, in the case of the latter
they vested in the State itself;
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it was agreed between the two Governments that in accordance with
Article 5 of the Indian Constitution, persons who have their domicile
in Jammu and Kashmir shall be regarded as citizens of India, but
the State legislature was given power to make laws for conferring
special rights and privileges on the state subjects
in view of the State Subject Notifications of 1927 and 1932:
the State legislature was also empowered to make laws for the State
Subjects who had gone to Pakistan on account of the communal
disturbances of 1947, in the event of their return to Kashmir;
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as the President of India commands the same respect in the State
as he does in other Units of India, Articles 52 to 62 of the Constitution
relating to him should be applicable to the State. It was further
agreed that the power to grant reprieves, pardons and remission
of sentences etc; would also vest in the President of India'
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the Union Government agreed that the State should have its own
flag in addition to the Union flag, but it was agreed by the State
Government that the State flag would not be a rival of the Union
flag; it was also recognised that the Union flag should have the
same status and position in Jammu and Kashmir as in the rest of
India, but for historical reasons connected with the freedom struggle
in the State, the need for continuance of the State flag was recognised
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there was complete agreement with regard to the position of the
Sadar-i-Riyasat; though the Sadar-i-Riyasat was to be elected by
the State Legislature, he had to be recognised by the President
of India before his installation as such; in other Indian States
the Head of the State was appointed by the President and was as
such his nominee but the person to be appointed as the Head, had
to be a person acceptable to the Government of that State; no person
who is not acceptable to the State Government can be thrust on the
State as the Head. The difference in the case of Kashmir lies only
in the fact that Sadar-i-Riyasat will in the first place be elected
by the State legislature itself instead of being a nominee of the
Government and the President of India. With regard to the powers
and functions of the Sadar-i-Riyasat the following argument was
mutually agreed upon
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the Head of the State shall be a person recognised by the President
of the Union on the recommendations of the Legislature of the
State;
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he shall hold office during the pleasure of the President;
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he may, by writing under his hand addressed to the President,
resign his office;
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subject to the foregoing provisions, the Head of the State shall
hold office for a term of five years from the date he enters upon
his office;
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provided that he shall, notwithstanding the expiration of his
term, continue to hold the office until his successor enters upon
his office"
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with regard to the fundamental rights, some basic principles agreed
between the parties were enunciated; it was accepted that the people
of the State were to have fundamental rights. But in the view of
the peculiar position in which the State was placed, the whole chapter
relating to Fundamental Rights of the Indian Constitution
could not be made applicable to the State, the question which remained
to be determined was whether the chapter on fundamental rights should
form a part of the State Constitution of the Constitution of India
as applicable to the State;
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with regard to the jurisdiction of the Supreme Court of India,
it was accepted that for the time being, owing to the existence
of the Board of Judicial Advisers in the State, which was the highest
judicial authority in the State, the Supreme Court should have only
appellate jurisdiction;
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there was a great deal of discussion with regard to the "Emergency
Powers"; the Government of India insisted on the application
of Article 352, empowering the President to proclaim a general emergency
in the State; the State Government argued that in the exercise of
its powers over defence (Item 1 on the Union List), in the event
of war or external aggression, the Government of India would have
full authority to take steps and proclaim emergency but the State
delegation was, however, averse to the President exercising the
power to proclaim a general emergency on account of internal disturbance.
In order to meet the viewpoint of the States delegation, the
Government of India agreed to the modification of Article 352 in its
application to Kashmir by the addition of the following words:
"but in regard to internal disturbance at the request or with
the concurrence of the Government of the State." At the end
of clause (1)
Both the parties agreed that the application of Article 356, dealing
with suspension of the State Constitution and 360, dealing with financial
emergency, was not necessary.
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