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LEGAL STANDING OF J&K ACCESSION

The legal validity of the accession of Jammu and Kashmir to the Dominion of India has been under challenge at international forums since 1947. HEMRAJ SINGH examines the legal standing of the accession in its proper historical context.


On July 18, 1947, the Independence of India Act, 1947 (10 & 11 GEO. 6., CH. 30.) was passed by the British Parliament granting independence to India and simultaneously creating the Dominions of India and Pakistan. Section 8 (1) of the Independence of India Act, 1947 (hereinafter referred to as “the 1947 Act”) provided for the constitution of Constituent Assemblies to frame constitutions for each of the two Dominions and Section 8 (2) conferred upon the Governor General of India the power to adapt the Government of India Act, 1935 (hereinafter called “the 1935 Act” or “the GoI Act”) to function as the interim constitution for the meanwhile. The 1935 Act was accordingly adapted and served as a Constitution from August 15, 1947 to January 25, 1950.

Section 6 (1) of the 1935 Act as adapted in terms of Section 8 (2) of the Government of India Act on August 15 1947, by the India Order (Provisional Constitution), 19471 provides that “an Indian State shall be deemed to have acceded to the Dominion if the Governor-General has signified his acceptance of an Instrument of Accession executed by the Ruler” and Section 6 (2) goes on to stipulate that “an Instrument of Accession shall specify the matters which the Ruler accepts as matters with respect to which the Dominion Legislature may make laws for the State, and the limitations, if any, to which the power of the Dominion Legislature to make laws for the State, and the exercise of the executive authority of the Dominion in the State, are respectively to be subject.”

Section 6 (3) of the 1935 Act as adapted also provides for a supplementary Instrument of Accession by which “a Ruler may, by a supplementary Instrument executed by him and accepted by the Governor-General vary the Instrument of Accession of his State by extending the functions which by virtue of that Instrument are exercisable by any Dominion authority in relation to his State.”

In short, through the Instrument of Accession the power to make laws and to exercise executive authority could be transferred to the Dominion acceded to by the ruler of an India State to the extent and subject to the limitations the Instrument of Accession stipulates. The Instrument of Accession was, thus, to be the foundational document on which the political and legal relationship between an Indian State and the Dominion it chooses to accede to was based. Furthermore, the Ruler of the State could also vary the Instrument of Accession by a supplementary Instrument and award further authority to the Dominion at a later time, which implies that a Ruler could enlarge but could not curtail the scope and extent of the accession by a supplementary Instrument of Accession.

The creation of Dominions under the Independence of India Act, 1947 did not vest the Indian Dominion with paramountcy and all of the 565 Indian States, big and small, were left free to join either of the two Dominions. The Cabinet Mission’s Memorandum on Indian States, Treaties and Paramountcy (Cmd. 6835, HMSO London) leaves behind no mysteries when it unambiguously states that the “British government could not and will not in any circumstances transfer paramountcy to an Indian Government,” and, consequently, “the rights of the States which flow from their relationship to the Crown will no longer exist and that all the rights surrendered by the States to the paramount Power will return to the States,” adding further that “the void will have to be filled either by the States entering into a federal relationship with the successor Government or Governments in British India, or failing this, entering into particular political arrangements with it or them.”

While the two Dominions had been created to free the Muslim minorities from the fear of being dominated and suppressed by the Hindu majority, the idea did not reflect in the choices made available to the Indian States, for any Indian State could join either of the two Dominions as long as the ruler of the State saw it fit to do so and a valid Instrument of Accession was duly executed and accepted.

However, the Attlee Government and Lord Mountbatten in particular left no stone unturned to ensure that a large number of princes acceded to the Indian Dominion. A significant reason for this could be that out of over 500 princely states, not more than five or six could hope to survive as independent entities (Sarila, 2005, p. 313). Therefore, it made a lot more existential sense for the Indian States to accede to one of the two Dominions. The princely states had enjoyed a great deal of autonomy under the overarching paramountcy of the British Empire, and with the paramountcy dissolved, they could only be persuaded.

The only states that seemed to be inclined to accede to the Dominion of Pakistan were Kalat, Kherpur, Bahawalpur, Chitral, Dir, Swat and possibly Kashmir (Sarila, 2005, p. 315). At the time of Indian Independence in 1947, the princely states of Hyderabad, Kashmir, Bhopal, Indore, Kalat and Junagadh remained independent, having refused to join either of the two Dominions. Bhopal and Indore acceded to India within a few years after the independence while Kalat acceded to Pakistan leaving Hyderabad, Kashmir and Junagadh independent (Tunzelmann, 2007, p. 247).

Junagadh was a small seaport state on the coast of Kathiawar with a largely Hindu population and a Muslim ruler, the Nawab of Junagadh (Spear, 1978, p. 241). The Nawab acceded to Pakistan despite that Junagadh had a Hindu population of over eighty percent. The accession was duly accepted by the Dominion of Pakistan, and was, thus, a legally valid accession though it was deeply flawed from a democratic perspective, being, as it was, against the wishes of the governed.

Patel wanted to send in Indian troops immediately, but Nehru exercised restraint and Mountbatten suggested to both Nehru and Liaquat that both the Dominions should respect the result of a plebiscite in the state. On the request of the invitation of Junagadh administration, Indian troops were sent into Junagadh in November 1947 and the promised plebiscite was held in February 1948. Pakistan got 91 votes in total against 190,779 for India (Tunzelmann, 2007, p. 281).

Both Liaquat and Nehru had accepted the suggestion of Mountbatten to abide by the result of the plebiscite in Junagadh, but Liaquat was happier than Nehru because, as Mountbatten noted, “There is no doubt that the same thought was in each of their minds – “Kashmir”!” (Tunzelmann, 2007, p. 281)

The accession of Junagadh by way of plebiscite introduced an additional parameter of democratic legitimacy, which, although highly desirable, stood in derogation of the legal parameters for a valid accession under the Government of India Act, 1935. The 1947 Act read with the 1935 Act vested sovereignty entirely and unquestionably in the Ruler of the princely states for all purposes including accession. However, the accession of Junagadh brought democracy in play as a central tenet of governance by recognizing the people of the respective states as the source of the sovereignty exercisable by the Rulers of the states under the law. Therefore, where the accession was made by the Ruler against the wishes of the people, the will of the governed was to prevail. Liaquat’s delight and Nehru’s discomfiture stemmed from the fact that Kashmir was a Muslim majority state and was likely to vote for Pakistan in a plebiscite.

The impression, however, was hardly rooted in reality because when Jinnah had sent a Muslim League envoy to gauge the potential of Kashmir in 1943, the envoy had written back that “it will require considerable effort, spread over a long period of time, to reform them and convert them into true Muslims” (Tunzelmann, 2007, p. 284). Agha Shaukat Khan of the Muslim Conference had also learnt that there was no “communal feeling” in Kashmir when he had threatened ‘direct action’ in 1946 but had miserably failed to unite the warring factions of the Muslim conference, which possibly was also the reason why Jinnah had “hemmed and hawed over a plebiscite when one under UN auspices was suggested to him by Mountbatten on 1 November 1947 in Lahore” (Sarila, 2005, p. 347). He seems to have found a violent takeover of Kashmir a better idea to break Sheikh Abdullah’s hold on the Muslims of the valley (Sarila, 2005, p. 347).

By August 15, 1947, when India gained its freedom, all princely states barring a handful had acceded to either of the two Dominions. The State of Jammu and Kashmir was not among them, as it had not acceded to either India or Pakistan. Kashmir had a standstill agreement with Pakistan for the continuance of economic and administrative relations between Kashmir and Pakistan on the same basis as had existed before the creation of the two Dominions.2 However, when India was approached for a similar arrangement, India did not readily agree and sought to further deliberate with the State on the issue (White Paper, 1948, pp. 46-47). The deliberations never took place, and in order to force Kashmir to accede to Pakistan, the Pakistan authorities cut off supplies of food, petrol and other essential commodities to Kashmir and started obstructing the transit of the travelers between Kashmir and Pakistan. Simultaneously, Pakistan started applying military pressure through armed border raids conducted with its support (White Paper, 1948, pp. 2-3).

“Afridis, Soldiers in plain clothes, and desperadoes, with modern weapons, have been allowed to infilter into the State at first in Poonch area, then in Sialkot and finally in mass in the area adjoining Hazara district on the Ramkote side,” (White Paper, 1948, pp. 46-47) wrote Maharaja Hari Singh in his letter dated October 26, 1947 to Lord Mountbatten seeking military assistance against the aggressors aided by Pakistan. The Maharaja further wrote, “With the conditions obtaining at present in my State and the great emergency of the situation as it exists I have no option but to ask for help from the Indian Dominion. Naturally they cannot send the help asked for by me without my State acceding to the Dominion of India. I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your Government” (White Paper, 1948, pp. 46-47). The Maharaja disclosed in the same letter that he was setting up an interim government under Sheikh Abdullah, but the Maharaja retained sovereignty through a categorical declaration to that effect included in the Instrument of Accession itself.

Governor-General of India, Lord Mountbatten, wrote back to the Maharaja on October 27, 1947 accepting Kashmir’s accession to the Dominion of India and promising military aid against the raiders, and further declared, “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 decided 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” (White Paper, 1948, pp. 46-48). The invitation to Sheikh Abdullah to for an interim government was noted “with satisfaction” by Mountbatten.

Popularly referred to as ‘Sher-e-Kashmir’ (Lion of Kashmir), Sheikh Abdullah was the most prominent leader of Kashmir, and had been long and bitterly opposed to the rule of Maharaja Hari Singh favouring a democratic self-rule for Kashmir. He had launched a mass agitation against the Maharaja with the slogan “Quit Kashmir” in 1946, and was arrested and sentenced for three years for the same, but was released after sixteen months on September 29, 1947.

In his speech before the Constituent Assembly on November 5 1951, Sheikh Abdullah came down heavily on the Maharaja and said without mincing words that Maharaja Hari Singh had “completely forfeited the confidence of every section of the people. His incapacity to adjust himself to changed conditions and his antiquated views on vital problems constitute positive disqualifications for him to hold the high office of a democratic Head of the State. Moreover, his past actions as a ruler have proved that he is not capable of conducting himself with dignity, responsibility and impartiality.”3
Therefore, Abdullah, having forever opposed the Maharaja’s rule, was not exactly the favourite person of the monarch. In fact, in calling Sheikh Abdullah to form an interim government as his Prime Minister, Maharaja Hari Singh, in addition to acceding to the Indian Dominion, was also acceding to the democratic values and was making an attempt to draw democratic legitimacy to his rule.

On its part, the Dominion of India also committed to the same democratic values when it undertook to refer the issue of accession to the people stating it to be its own uniform policy in all cases where the accession comes under dispute, which simply means where the Ruler of the State is challenged to have acceded against the popular will. Therefore, in arranging and going by the results of the Junagadh plebiscite later in February 1948, the Indian Dominion was merely adhering to its stated policy. On the other hand, in accepting the accession of Junagadh, the Dominion of Pakistan had displayed its unequivocal willingness to absorb even the states with overwhelming Hindu majority, which flew in the face of the very ideology of a Muslim Pakistan — a holy land for the Muslims — and, thus, contradicted the stated reason for the partition of India itself.
However, the partition and the reasons why the British supported the Indian Dominion in having the princely states accede to it are subjects beyond the scope of this article. So, no more on that. Suffice it to say that it was no favour, but plain, old-fashioned self-interest, the pursuance of which, it must be also said, cannot really be held against the British.

The validity of the Accession
Pressured by the war conditions in October 1947, Maharaja Hari Singh acceded to India with lightening urgency, which makes it a move made in duress and haste. Furthermore, the Maharaja was not a particularly popular ruler and had done almost nothing to endear himself to the majority of his subjects, which is evident from the fact that the most popular leader in Kashmir, Sheikh Abdullah, who the Maharaja himself invited to form the interim government as his Prime Minister in October 1947, was completely opposed to his rule.

The British, having acquired the territory of Jammu and Kashmir after the First Sikh War, had sold it to Gulab Singh, the Raja of Jammu, for Rs 750,000/- under the Treaty of Amritsar in 1846. Maharaja Hari Singh was the great-grandson of Raja Gulab Singh, and by 1947, successive rulers had ruled Kashmir despotically and had discriminated against the Muslims of the region in varying degrees. However, except once, there had never been an unrest in the region and Kashmir had remained relatively peaceful under the Dogra rule (Tunzelmann, 2007, pp. 283-284). But lack of a major revolt does not imply satisfaction with the rule or the ruler.

During September and October 1947, the Maharaja’s troops carried out a campaign of harassment, arson, physical violence and genocide against Kashmiri Muslims in at least two areas — Poonch, right on the border with Pakistan, and pockets of southern Jammu (Tunzelmann, 2007, p. 286). A precise number of people displaced or killed was not available, but according to some sources almost the whole of the Muslim population of Jammu — around half a million — was displaced with around 200,000 having completely disappeared (Tunzelmann, 2007, pp. 286-287).

Given the distant as well as recent history, it was no surprise that the British, the Muslim League and most of the Congress leaders with a possible exception of Nehru assumed that Kashmir would eventually go to Pakistan. Jinnah, however, did have his well-founded doubts. Even the Maharaja was quite doubtful of the popular support for his regime, which is why he leaned on Sheikh Abdullah while acceding to India. India promised to let the people of Jammu and Kashmir decide the issue of accession after peace was restored.

Had the promised plebiscite ever conducted, it would have conferred conclusive legitimacy on the accession of Jammu and Kashmir to India. Kashmir was unlikely to vote for Pakistan because, firstly, Pakistan had tried to forcibly capture Kashmir, and, secondly, Kashmiris might have given a thought to being an independent nation, but they had never wanted to go with Pakistan. Having recently realized that they could not remain independent, they were most likely to vote for India.

The promise of plebiscite was reiterated in the 1948 White Paper on Jammu and Kashmir, which said that “in accepting the accession, the Government of India made it clear that they would regard it as purely provisional until such time as the will of the people of the State could be ascertained” (White Paper, 1948, pp. 2-3).

N. Gopalswami Ayyangar made the same position clear to the Constituent Assembly on May 27, 1949 when he said that the accession of Kashmir to India was complete and does not require any further validation or ratification, “but if the plebiscite produces a verdict which is against the continuance of accession to India of the Kashmir State, then what we are committed to is simply this, that we shall not stand in the way of Kashmir separating herself away from India.”4 Ayyangar, reiterating the same once again on October 17, 1949 before the Constituent Assembly, said that “the Government of India have committed themselves to the people of Kashmir” that “an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it.”5

While a general referendum on the issue of accession, like the one conducted in Junagadh in February 1948, could have settled the issue definitively, it was by no means required to ratify the accession of Kashmir to India because a ratification was never a legal pre-requisite for a valid accession under the law in terms of the 1935 Act read with the 1947 Act. As pointed out by Ayyangar, a plebiscite on the issue of accession could negate the accession, but as long as such a negation did not obtain, the accession remained valid.

Furthermore, a plebiscite, although the most democratic way to determine the will of the people, is not the only democratic means for the purpose. The Constituent Assembly of Jammu and Kashmir was convened through the elections on the basis of adult franchise in terms of the Proclamation dated May 1, 1951 issued by the Head of the State, Yuvraj Karan Singh, in order to frame a separate constitution for the State and was also tasked with deciding the issue of accession. The Constituent Assembly of J&K ratified the accession of Jammu and Kashmir without the right to secede with Abdul Ghani Goni note of dissent added on February 1, 1954. Goni wanted the following sentence added: ‘The State shall retain the right to secede from the Union of India.’6 The accession was thus ratified by the Constituent Assembly and made irrevocable.

Section 3 of the Constitution of Jammu and Kashmir declares: The State of Jammu and Kashmir is and shall be an integral part of the Union of India. Section 5 of the Constitution states: The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India. And Section 147, which deals with Amendments to the Constitution, stipulates that no Bill or Amendments to Section 3, Section 5 and Section 147 “shall be introduced or moved in either House of the Legislature.” The accession of Jammu and Kashmir to India as well as the power of the Indian Parliament to make laws in accordance with the Indian Constitution as applicable to Jammu and Kashmir was thus irreversibly ratified.

On the issue of the competence of the Constituent Assembly to ratify the accession, Mir Qasim, addressing the Constituent Assembly, pointed out on January 25, 1957, “The Assembly was free to ratify that accession. The late Mr. Gopala Swami Ayyanger said in this connection that the Assembly was free if it chose to continue or not to continue the accession and could decide for Kashmir to secede from the Union… I wonder how can one have the face to say that this Assembly was incompetent to ratify the accession. If it was competent to do one thing it was also competent to do the other.”7
However, the Kashmir dispute had been referred to the United Nations by India on January 1, 1948 through a complaint, and the United Nations Security Council (UNSC) had passed a Resolution on March 30, 1951 (Resolution No. 91 of 1951) declaring that “the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations.”8 The Resolution further affirmed that any action taken by the Constituent Assembly of J&K “to determine the future shape and affiliation of the entire state or any part thereof would not constitute a disposition of the State in accordance with the above principle.”9 Thus, despite ratification by the Constituent Assembly of J&K, pending plebiscite, the accession remains legally deficient under International Law.


(Endnotes)
1. No. GGO 14, Dated 14 August 1947, Gazette of India, 1947, Extraordinary, p. 834 [As amended by the India Provisional Constitution and Provincial Legislatures (Amendment) Order, 1947, and the India Provisional Constitution (Second Amendment) Order, 1947].
2. White Paper on Jammu & Kashmir, Government of India, February 1948, pp. 2-3.
3. Jammu and Kashmir Constituent Assembly Official Report, Volume 1 (1951–5), pp. 55–81.
4. Constituent Assembly Debates, May 27, 1949, Volume VIII, p. 357.
5. Constituent Assembly Debates, October 17, 1949, Volume X, pp. 422-427.
6. Jammu and Kashmir Constituent Assembly Official Report, Part I, Volume 1, p. 726.
7. Jammu and Kashmir Constituent Assembly Debates, Official Report, Part II (1956), p. 1272.
8. Resolutions Adopted and Decisions Taken by the Security Council in 1951, https://undocs.org/S/RES/91(1951), Last Accessed: November 30, 2019.
9. Ibid.

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