K. B. Jandial
In an interview with a national daily, Governor Satya Pal Malik has admitted that “India has made mistakes…” in Kashmir. No one can dispute it. One of the “mistakes” is the confusion created on J&K’s Accession for which the nation is paying heavily till date. Accession is integral to Kashmir solution.
Constitutionally and politically, there is absolutely no confusion on the finality of Accession but the pampered Kashmir based mainstream politicians continue to harp on ‘conditional’ Accession as if it can be revoked at their whims which privilege even the Maharaja didn’t have. Maharaja Hari Singh signed the same Instrument of Accession (IoA) acceding J&K to Indian Dominion which other 565 Rulers had signed as required under India Independence Act, 1947 and Govt. of India Act, 1935.The sovereignty of Rulers of Princely States was restored with the lapse of British Paramountcy under section 7(1((b) of the Act of 1947 on the “appointed date” (August 15, 1947). It was the sovereign Ruler alone who had to decide the issue of Accession without reference to anything and that’s what Maharaja Hari Singh did. The Act provided no third option.
Going by post 15th August events in J&K, Maharaja Hari Singh had delayed his decision on Accession and instead signed Standstill Agreement with Pakistan which betrayed him by sending its army supported tribesmen into J&K on 22nd October, 1947. With marching columns of marauding tribesmen moving towards Srinagar, Maharaja sought India’s help but it was not sent as J&K had not acceded to India yet. On 25th October, V. P. Menon, Secretary of States landed at Srinagar and discussed with the Maharaja his security and Accession. On wee hours of 26th October, 1947 before leaving for Jammu, the Maharaja signed the IoA.
Carrying the signed IoA, Maharaja’s PM M C Mahajan accompanied by Menon rushed to Delhi for its acceptance by Governor General and military aid to push back invaders. They called on Pt. Nehru. Mahajan recorded this crucial meeting in his book, ‘Kashmir’s Accession to India, “I requested immediate military aid on any terms. Give us the military force we need. Take the accession and give whatever power you (India) desire to the popular party. The [Indian] army must fly to save Srinagar [. . .] or else I will go to Lahore and negotiate terms with Mr. Jinnah.” It enraged Nehru who asked him to go to Jinnah. But he relented when Kashmir’s most popular leader, Sheikh Abdullah, sitting in the adjoining room, indicated his party’s full support to Accession with India and thus IoA was accepted. In his autobiography, “Aitesh-e-Chinar” Sheikh also recounted this incident and quoted from Mahajan’s book “I shall always be grateful to Sheikh Abdullah for his help at that crucial juncture. His timely consent saved Kashmir from acceding to Pakistan”.
As required under the Act, Governor General Mountbatten accepted IoA in routine manner as printed on it, “I do hereby accept this Instrument of Accession. Dated this twenty-seventh day of October, Nineteen Hundred and forty-seven” and signed it. This was the only legal requirement and with this, J&K became a part of the Dominion of India.
However, Mountbatten wrote back a letter to Maharaja, not part of prescribed IoA, advising him to “ascertain the wishes of the people when peace returns to the State”. Legally speaking, Accession had to be unconditional, voluntary and absolute. Mountbatten’s questionable letter is beyond the purview of India Independence Act but since it was the desire of Pt Nehru no one challenged it. This unwarranted and ill-advised letter had become a pain in the neck of India which many jurists had criticised.
Late Mehr Chand Mahajan, who later became India’s third Chief Justice, had observed in his book: ‘Kashmir’s Accession to India,’ that “Indian Independence Act did not envisage conditional accession. It could not envisage such a situation as it would be outside the Parliament’s policy. It did not want to keep Indian State in a state of suspense. It conferred on the Rulers of the Indian States absolute powers in their discretions to accede to either of two Dominions. The Dominion’s Governor General had the power to accept or reject the offer but he had no powers to keep the question open or attach conditions”. He further opined that, “finality which is statutory cannot be made contingent on conditions imposed outside the powers of the statute. Any rider which militates against the finality is clearly ultra vires and has to be rejected”.
Another former CJI, late Justice Dr. A. S Anand had opined in his book: ‘Constitutional Development of J&K’ that “this statement (Mountbatten’s letter) does not and cannot affect the legality of Accession which was sealed by India’s official acceptance. This letter was not a part of the Instrument of Accession”. He further said, “The only documents relevant to the Accession were the Instrument of Accession and the India Independence Act, 1947. These constitutional documents did not contemplate any such condition. There can be no question of the Accession being conditional”.
Yet another legal luminary and former Judge of Calcutta High Court, Dr. Justice (Retd) D. D. Basu too echoed similar views. He had said that “the legal basis as well as the form of Accession was the same in the case of those States which had acceded to Pakistan or India. There is, therefore, no doubt that by the act of Accession the state of J&K became legally and irrevocably a part of the territory of India…”
A British politician who was on the staff of Mountbatten in 1947-1948, Alan Campbell-Johnson in his book ‘Mission with Mountbatten’ touched J&K Accession and wrote, “The legality of the Accession is beyond doubt. It should be stressed that a Accession has complete validity both in terms of British Govt. and Jinnah’s expressed policy statement”.
Mountbatten’s desire of “ascertaining the people’s will” too was fulfilled with the ratification of the Accession by J&K Constituent Assembly, representing the collective will of the people, on 6th February, 1954. The finality of Accession and J&K being an “integral part” of India is unambiguously recorded in J&K Constitution. Its Preamble reads, “We, the people of State of Jammu & Kashmir, having solemnly resolved, in pursuance of the Accession of this state to India which took place on the 26th day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof…” Its Section 3 puts a seal on this relationship with India forever, “The State of Jammu & Kashmir is and shall be an integral part of the Union of India.” And section 147 totally bars amendment of Section 3 and thus settled Accession issue forever. The Governor, CM and every Minister and even contesting candidates for election take oath of this Constitution and none can express reservation on finality of Accession.
Pt Nehru took Pakistan’s aggression on J&K, territory of India, to UNO seeking vacation of the aggression but finally agreed to a Resolution for plebiscite. This Resolution too had become redundant as Pakistan didn’t fulfill its mandated obligations in withdrawing its army and other unauthorized settlers from PoK. Pakistan was fully conscious of little support for it as Kashmiris were staunch followers of the Sheikh who had rejected Jinnah’s two-nation theory based on religion. Moreover, the Resolution was adopted under chapter VI of UN Charter which is not mandatory for the parties.
After State’s Constituent Assembly ratified the Accession on 6th February, 1954, the then PM, Bakshi Ghulam Mohd, started celebrating 6th February as Yuma-e- Ilhaq in Jammu, seat of power in winter. Every year, impressive procession used to be taken out culminating with public rally addressed by Bakshi himself. But after his ignominious exit, this practice was quietly buried for reasons best known to leaders who came to power after him.
It is sad that the nationalist forces and mainstream parties too displayed lack of commitment to Accession Day all these years and allowed the separatists and their likes to convert the historic day into a ‘black day’. It is not that the Accession Day had been observed as ‘black day’ right from days of Independence. As precursor to MUF creation, some anti- India ‘converts’ gave the call for ‘black day’ in Srinagar in 1985. Since then, the situation had been drifting with ruling parties almost giving these elements a walk-over and ‘black day’ became annual feature in Kashmir which was never politically countered.
State and Central Governments had preferred to look the other way, giving a confused signal to people of Kashmir and the world about the status of J&K. Confusion on Kashmir multiplied with occasional statements of political leaders describing the Accession as “conditional” while others seek resolution of Kashmir “dispute”, meaning that J&K’s Accession is yet to be settled. Even a Dogra icon and veteran Congress leader in a way conceded Accession for three subjects & proposed “Hong Kong model” in Rajya Sabha
Accession and restricting the legislative powers of the Federal Legislature (now Parliament) to three subjects of the Union List are two different issues. It cannot be confused with “revocability” of Instrument of Accession that some top leaders keep threatening. The Accession could not be restricted to three subjects; moreover Article 370 itself provides a mechanism to extend other subjects of Union list to J&K.
On separatists’ call, Kashmir observes shut down on 27th October every year, protesting against landing of same Indian forces in Srinagar on that day in 1947, conveniently overlooking the fact that Kashmiris had welcomed them as saviors who pushed back marauders accused of committing mayhems on way to Srinagar.
Jammu which is emotionally more integrated with India than Kashmir had too ignored the Accession Day in the past as a non-event but, of late, started celebrating it with some fervor. Accession Day is a day of fulfillment and jubilation but inexplicably it was never observed as such. Be the celebrations, its absence or shut downs; nothing can abate the importance and finality of constitutional and historical Day.
While 13th July is officially observed as Martyrs’ day with holiday, being the major catalyst of the struggle for democracy and end of feudal rule, why the same status is not accorded to Accession Day that marks the culmination of the same struggle? This Martyrs’ Day has no acceptance in Jammu as the people take it as anti-Dogra (Jammu). But the Governor, CM, Ministers, mainstream leaders issue statements paying tributes to those killed in firing outside the Central jail where the trial for sedition against a non-Kashmiri cook of a British Major, was being conducted.
J&K must observe 26th October as Accession Day, with or without holiday, with gaiety. People and political parties will obverse it but confusion on the finality of Accession would only end when the State celebrates the day as Festivals like I-Day, R-Day etc. Since Governor Malik is desirous of correcting the past “mistakes”, he should grab this opportunity. This is not Jammu’s cause but of the nation. Celebrate Accession Day officially, conveying a clear signal on finality of Accession. PM Modi too should felicitate the people on Accession Day, commending their momentous decision to link their destiny with a secular and progressive nation which is now a world power.
(Excerpts from the letter written by the author to Governor on the subject). (feedback:kbjandial@gmail.com)
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