Mirza Afzal Beg, Minister for Public Works 
to Rai Bahadur Pt. R.C. Kak, Prime Minister, Jammu and Kashmir State

Legal Document No 89

My dear Kak Sahib,

I write to acknowledge with thanks the receipt of your D.O. letter No. 16-CC/46 dated 12th February, 1946.

I find some new points have been raised in the D.O. and therefore it is necessary once again to clarify the position in the hope that it would be fully appreciated.

1. To begin with, I draw your attention to the matter touched in the last paragraph of your letter under reply, wherein His Highness' message of the Praja Sabha dated 2nd October 1944 has been referred to. I have throughout made it clear that the view I take is strictly in accordance His Highness' Proclamation and in pressing various matters from time to time I hate been prompted only by the desire to make the present experiment a complete success. I need hardly say that in actual practice also, I have done my utmost in that direction.

The intention underlying the Proclamation is the effective association of His Highness subjects in the Government of the State. The direction of the Proclamation that official block in the Assembly was not to participate in the proceedings relating to selection of members to the panel, clearly indicated that officials should not influence the decision of the Assembly. This ensured that the representatives of the people - according to the Assembly - should largely determine the appointment of Ministers. Thus to the advice of Ministers so selected considerable weight attaches in matters of public importance and to my mind this cannot be lost sight of in the disposal of questions pertaining to the administration. An earnest attempt to accommodate their view point should be forth coming and it cannot be brushed aside totally simply because majority take a different view on any issue before the Councils The position taken that "if the decision of the majority in the Council goes against the member, he has to accept and endorse the policy of Government", 1 am afraid, does not strictly stand.

In the appointment of Ministers of Council, as at present. constituted, His Highness has adopted two different and distinct methods. Where in the case of popular Ministers they are elected in the prescribed manner and are eligible for re-appointment only if they remain members of the Praja Sabha, such is not the case with other Ministers. That it is His Highness' Command. While implementing it, earnest effort should be made by us all to avoid possibilities which will land the elected Ministers in embarrassments and positions of non-confidence by public. Whoever is appointed as a popular Minister under the present system must according to the spirit of the Proclamation retain public confidence which can be only retained if the popular view point as expressed by such Ministers is given due weight to. On the contrary, if the decisions of the Council are to be taken by actual voting, the Popular Ministers surely will find themselves in minority in the Council, even if they always vote together. In such a contingency these Ministers have to bear the brunt of public criticism, which the other Ministers can offered to ignore. Should such an issue be an important one, may I ask how these Ministers can continue to enjoy public confidence, especially when you expect them not to express even their individual opinion by means of vote on the floor of the Praja Sabha. There have been occasions on which I differed from the view taken by my other colleagues in Council and if I am not even allowed by the Government to vote in favour of that view I feel that it is not only suppression of opinion but will also lead to consequences directly in conflict with the spirit of the Royal Proclamation.

Whereas I concede that it should be an earnest effort at unanimous decision-and I have always acted in that spirit-yet a contingency may arise where on an issue of very grave public importance a Popular Minister may honestly differ. That Government should expect him in such a contingency to vote with it would. I am afraid, be too much.

2. In my note dated 30th January 1945 which I recorded on the case relating the amendments of constitution, I made my view quite clear. I then said:

"It is however, hoped that the Popular Ministers will be able to influence the policy of administration in accordance with the views of people for otherwise these Ministers would lose their popular confidence and support-may be, sometimes not by reason of any action on their part but as a result of the measure taken by the Government. Again such loss of popular confidence is apt to bear an adverse effect on the ability of the Ministers to render their best service. In that case not much would be gained by selecting Ministers from the Legislature. Such a state of affairs, I very much fear, will not be in accordance with spirit of the proclamation."

"The Constitution Act was subsequently amended and though it referred to the retention of status of the elected Ministers in the Praja Sabha, it also amended the provisions of Section 28 of the Constitution Act. Obviously, therefore, the amendment was not aimed at only preserving our 'status as non-official members of the Praja Sabha"...

Even in relation to the preservation of such "status" the question arises as to what that status is. To my mind the status of an elected member of legislature is, in actual practice determined by his ability to represent his constituents and hence by his freedom to voice their feelings (and according to you also the amended Constitution Act retains our representative character). Otherwise if he is retained as elected member of Praja Sabha for keeping the elected seats occupied and compelling him to vote and speak for the Government view point, I am afraid such a position does serious damage to that status. Such a position not only raises the question of coming in to conflict with the Proclamation, as I have said before, but also a more embarrassing question of the general constitutional right recognized by our Constitution Act of 1996.

You have referred to Sir B. N.'s opinion according to which the two elected Ministers were 'debarred from voting, But according to what you propose this 'disqualification' is intended to be removed only to compel us to vote in support of the official view of the Government, even though we may disagree with it and might have expressed our disagreement even in the Council too.

In the concluding sentence of the first paragraph of your letter you say there was no question of the Ministers appointed from amongst the members of the Praja Sabha being given the option to vote independently of the decision of the government. According to the implication of the words underlined the elected Ministers can be given an option of vote by the Government. As convention can, therefore, be set up by the Government itself for such option in matters where agreement in Council cannot be reached.

You have not in your letter under reply referred to our freedom of speech on the floor of the House, which in my previous letter, I said was preserved.

3. It is true that on 21st January, 1945 the Council have taken their decision of combining the various Secretariats into one under the administrative control of the Chief Secretariat, which is attached to the portfolio of Hon'ble Prime Minister. In my discussion with you on 13th December 1945 to which I referred in the second pare of my previous D.O. it was agreed, though as a temporary measure, to bifurcate the Home Secretariat, as indicated in your D.O. under reply. After this the Chief Secretary once made a passing mention that you were examining the question of the Secretariats. I said that the temporary arrangements agreed upon with you shall have to be made by an executive order or otherwise, exactly as the other Secretariats are put under Ministers and that in this

At least there should be no difference. In my D.O. of 15^th January, 1946, I therefore referred to this temporary arrangement again, though I pressed that for the final settlement of the matter, a separate Secretariat was necessary.

The question of transferring the establishment in other Secretariats dealing with departments under me was raised when Hon'ble Home Minister said that he was exercising and should continue to exercise administrative control over similar establishment under him in other Secretariats. I therefore suggested that in the event of bifurcation of the Home Secretariat, as contemplated by you, the position of Public Works Minister should be put on similar footing.

The anomalies that I pointed out about the Secretariat working under the previous system continue even now. For purposes of appointments, transfers, leave etc., they will be under the Chief Secretary whereas in respect of performance of duties they will be working under various Ministers.

You have referred to the personal Assistant under me.

May I point out that whereas all Ministers except me have Parliamentary Under Secretaries, I preferred to have a Personal Assistant.

4. So far as the question of delegation of powers under the Municipal Act is concerned you have referred to an objection that Law Department has 'now' taken. I am really surprised to hear this though I feel that I should have been told so earlier especially since 1 had addressed a Do). after submission of the memorandum. requesting that the matter should be expeditiously dealt with.

I am surprised at the Department's objection because before submitting the memorandum No.859-M 45 dated 22nd September 1945, I had obtained the Law Department's opinion on the point at issue and enclosed a draft notification drawn up by the Law Secretary and Advocate General to the Government, proposing delegation of powers under Section 30-A. The Law Secretary asked if there was any objection to the delegation of powers. It is rather strange that after giving his definite opinion that delegation could be made under Municipal Act to the Minister in charge, he should now opine that such delegation is not correct. In this connection copy of his draft notification enclosed with my original memorandum may kindly be perused. The same question was also once before referred to him on 15th July, 1944. The Legal Remembrance and Advocate General then said, "There is no objection to the delegation being made under Section 30-A of the Municipal Act of 1998". A draft notification was then also vetted and drafted by Law Department and is on the file. It passes my comprehension how today a different view is expressed by the very same officer on the same question. May I tell you that is one of the instances how the method of dealing with my cases, leads to great embarrassment

I would incidentally like to mention that under Section 417 of Criminal Procedure Code the Government is empowered to direct presentation of appeals against acquittal orders by a Criminal Court. Some section authorises the Government to delegate these powers to any officer. Accordingly power to direct to prefer an appeal against acquittal has been delegated under notification No. 5-P184 to the Law Minister. There is absolutely no comparison between the powers delegated under this notification to the Law Minister and those which 1 had requested to be delegated to the Minister-in-Charge Municipalities. In the former case the Law Minister is competent to direct preferment of appeal which may lead to hanging a person, whereas in the latter the Minister-in-Charge, assuming his request for delegation is granted, will only be exercising powers of direction for preparation of bye-laws with regard to sanitation or petty increment and promotion questions etc.

Again powers vested in the Government under Land Revenue Act have been delegated to the Hon'ble Revenue Minister. I am, therefore, really surprised to understand why a different outlook should be brought to bear upon the disposal of the question when in identical circumstances, the delegation is asked for by me as Minister-in-Charge Municipalities.

You have referred to my talk that I had with you on this question in Srinagar. I did say that I shall be 'compelled' to send up the cases to the Council in case the delegation was not granted. May I remind you that this was in reference to your suggestion that the question of hearing municipal appeals may be delegated to a Court which involve amendment of the Act and hence reference to Legislature. Though that would be a unique procedure, as I pointed out then, I did say that I would be compelled to send these cases to Council-I would surely have done that, if either the Law Department had disagreed with me or the Council recorded their decision that delegation cannot be granted. In that case I would really be "compelled" to do it. Unfortunately neither my memorandum was put up to the Council nor my D.O. letter requesting for immediate action in the matter was replied to.

After carefully reading paragraph No. 3 of your letter I feel it is indicated that these cases should be sent to Council for disposal. I am, therefore, issuing orders to the Secretary accordingly.

The Ad hoc Committee referred to in paragraph 3 of your letter has since sent up its report. I would like to point out that under previous Council decision that Committee could examine only the clauses of the Bill referred to it and the question of examining the delegation would be outside its purview, unless it is intended that the Committee should launch upon that investigation now.

5. So far as promulgation of Defence Rules in concerned from purely technical point of view the position explained by you in paragraph four of your D. O. may be correct and it may really be difficult in cases of grave emergency for competent Magistrates to seek instructions before the event. But the position has also to be viewed from other technical stand point. Failure of ordinary processes of law and recourse to rule by ordinances is always an abnormal position and the more recourse is had to the application of ordinances, the greater and heavier is the responsibility of those charged with the duty of maintenance of law and order. In such circumstances, therefore no, Government can excuse itself by merely saying that grave apprehension of breach of peace necessitated recourse to Ordinance without minutely going into the merits of every case, after promulgation.

Promulgation of Rule 50 in vast areas and for number of months at a stretch and sometimes for indefinite periods is an extraordinarily grave position. But I doubt very much if in any case any enquiry has ever been held whether recourse to Ordinance was justified both in its extension of time and space. This attitude, to my knowledge, continued in the face of unanimous protests both from press and public organizations and no attempt was made to look into the question. I am afraid though law and order, as you say, is your individual responsibility, the Government as a whole has to face this position. Though Popular Ministers were always available for consultation their views were not obtained even after the promulgation of ordinances. People in distant villages who under the abnormal conditions created by war were facing acute hardships could not express themselves in public meetings as the same were banned.

Though in places near the District Magistrates headquarters permission to hold meetings could be easily requested for but this was well-nigh impossible in the case of far off places which had to suffer, even though in those areas no apprehension of breach of peace actually existed.

Issues arising out of such situation often form subject of serious protests in the Praja Sabha where you expect me to vote with you, it was, therefore, all the more important the, if due to emergency previous consultation was impossible careful examination of the whole situation by Council or at least with the Popular Ministers after the promulgation of Ordinances should have been held in each case. This would have not only helped us in satisfying ourselves that the real emergency existed and the powers were used to the minimum extent necessary, but the embarrassing position that we have certainly to face on the floor of the House would also have been totally avoided. Such an examination was also necessary in every case, because failure of ordinary processes of law to meet a given situation is always an abnormal position, about the merits of which the Government must satisfy itself completely. On the contrary, matters have been allowed to drift to the extent that I was once completely surprised that even the District Magistrate of Kashmir did not know whether restrictions under Rule 50 applied in a particular locality. I am referring to the case of Bijbehara which presumably I mentioned to you last year. I dare say we cannot congratulate ourselves on such a state of affairs. It is true that it means more embarrassment for an elected Minister who has to be more responsive to the public opinion, but for the Government as a whole also such a position should be unwelcome as it brings it into disrepute, which is avoidable.

May I here make mention of the recent sad happenings in Jammu. Even here the Government will be well advised to hold a sifting enquiry into the whole position with a view to find out why those charged with the duty of maintaining law and order first failed by ordinary means and when extraordinary means were had recourse to, if no abuses were committed.

6. So far as distribution of controlled commodities is concerned I am fully conscious of the hard time that we have had to pass through on account of war and I have left no stone unturned in bringing home to the minds of people as far as I could, the necessity of their cooperation in this respect. But nevertheless the fact remains that I addressed in this behalf a number of communication from time to time but even I often failed to evoke a sympathetic response in this behalf.

I have only to reiterate that the new reform introduced by His Highness and his Proclamation of 1944 necessitate a reorientation of out-look to be brought to bear upon the administration of the State.

I would request for IN immediate reply so that in the light thereof I may be able to see how far I can render my services towards the implementation of the spirit of the Proclamation as explained above.

Yours sincerely
Sd-(M A Beg.)

The Hon'ble, 
Pt. Rai Bahadur Ram Chandra Kak, 
Prime Minister, JAMMU.