K B Jandial
Omar Abdullah has once again contested the finality of Jammu & Kashmir’s accession to India by calling it as conditional. Occasion was the first death anniversary of the veteran N C leader, Sheikh Nazir Ahmad at Srinagar on February 26, 2016 who all through his life maintained that J&K is a “disputed” territory and never visited Delhi except when he had to undergo surgery, reportedly on the persuasion of Dr. Farooq Abdullah. So, Omar Abdullah echoed late Sheikh Nazir’s sentiments. He had aired similar views in the State Assembly in 2010 as Chief Minister saying that J&K did not merge with India as was done by other States. He is right on merger but is it so on conditional accession?
Does the autonomy granted under Article 370 make the accession conditional? Is the talk of conditional accession because of lack of understanding of the constitutional development or a sheer political cliché? Whatever is the compulsion of the mainstream leaders but the historical and constitutional realities would not change, even though it may strengthen the adverse view point of an important section of our population.
Straight Talk
First of all, neither the Govt. of India Act, 1935 nor the Indian Independence Act, 1947 prescribed conditional, temporary or deferred accession. The format of the Instrument of Accession was the same which rulers of all 565 princely States including Maharaja Hari Singh executed to accede to India following lapse of British paramountcy under section 7(1( (b) of Indian Independence Act on the “appointed date” i.e. 14th August, 1949.
An unjustified and mischievous inference has been drawn by some leaders that the J&K Accession is limited only to three subjects i.e. Defence, External Affairs and Communication. The fact is that it restricted the legislative jurisdiction of the Parliament over J&K and that is what we call autonomy. This was neither the brain child of the Maharaja nor Sheikh Abdullah but of the Cabinet Mission which recommended that the Union of India, comprising both British India and the princely States, would only deal with the subjects of Defence, External Affairs and communication while the States would retain all other powers. All Princely States initially acceded to India with these three subjects but subsequently they decided to merge into India under “Patel Scheme” (which J&K did not do) as the States realised that it was not possible to maintain their existence independent of the Dominion, and thus it was in their own interest to integrate into the Dominion. Thus, rulers later on, agreed to put all subjects in the union and concurrent lists under the purview of the Federal Legislature but the J&K continued with the original three subjects’ scheme.
With the lapse of British paramountcy on 14th August, 1947, the rulers of Princely States became sovereign and were competent to decide their future in terms of the Act. Maharaja Hari Singh, who had delayed his decision, was compelled by the tribal invasion of the State to accede to India on 26th October, 1947. He was desperate to seek immediate help of India to rid his State of Pak supported invaders who found stiff resistance from the people of Kashmir also.
Sheikh Abdullah had played an important role in persuading Pt. Nehru in accepting Maharaja’s Instrument of Accession. In his autobiography, “Aitesh-e-Chinar” Sheikh recounted how Pt Nehru got in to rage when Mehr Chand Mahajan, the then PM of J&K and Maharaja’s emissary sought immediate dispatch of troops to Kashmir otherwise J&K would accede to Pakistan. But Pt. Nehru agreed to accept the Instrument of Accession when he (Sheikh Abdullah) indicated his support of the accession and the Army was rushed to Srinagar to push back the invaders. Sheikh quoted from the book: ‘Kashmir’s Accession to India,’ of Mehr Chand Mahajan, “I shall always be grateful to Sheikh Abdullah for his help at that crucial juncture. His timely consent saved Kashmir from acceding to Pakistan”.
Mountbatten appended his signatures and recorded on the Instrument of Accession, “ I do hereby accept this Instrument of Accession. Dated this twenty-seventh day of October, nineteen hundred and forty-seven”. This was the only requirement under the Act.
However, in a covering letter to Maharaja Hari Singh sending “accepted” Instrument of Accession, Mountbatten said, “In view of the extraordinary situation you have referred to, my Govt. accepts Kashmir’s accession to the Indian Dominion with a proviso that the issue of accession of a state, where accession is a matter of controversy, be sorted out according to the wishes of the people of that State. My Govt. desires that as soon as peace is restored in Kashmir and the State gets rid of the aggressors the issue of accession should be resolved after the people’s will is taken into consideration.”
Whether this personal letter of Governor General had any legal value under the Indian Independence Act of 1947or Govt. of India Act, 1935? This caveat was outside the purview of any Act and thus has no legality. It was at best a political statement of Indian Dominion.
The former Chief Justice of India and son of the soil, Dr A S Anand has 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 Indian Independence Act, 1947. These constitutional documents did not contemplate any such condition. There can be no question of the accession being conditional”.
Another legal luminary and former CJI, M C Mahajan, had too observed in his book: ‘Kashmir’s Accession to India,’ “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. (Pages19-20) 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”. (page21)
Yet another legal luminary, former Judge of Calcutta High Court, Dr. Justice (Retd) D. D. Basu too echoed similar views. He says that the legal basis as well as the form of Accession was the same in the case of those states which acceded to Pakistan and those which acceded to 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 accession has complete validity both in terms of British Govt. and Jinnah’s expressed policy statement”.
Be that so, the Governor General’s desire of “ascertaining the people’s will” was fulfilled by subsequent events, India taking the issue of Pak supported invasion to UN notwithstanding. The negotiation with Sheikh Abdullah led the popular Govt. resulted in incorporation of Article 370 in Indian Constitution and initiation of the process of electing the State’s Constituent Assembly which was authorized to decide the issue of accession as the Indian Govt. wanted the people to have the final say on this issue.
In his opening long and comprehensive matter-of-fact address to the Constituent Assembly on 5th November 1951, Prime Minister Sheikh Abdullah, the most popular leader of Kashmir having acquired the legendry title of Sher-i-Kashmir, referred to the importance of the occasion,” Today is our day of destiny. A day which comes only once in the life of a nation… After centuries we have reached the harbor of our freedom, a freedom which for the first time in history, will enable the people of Jammu & Kashmir who’s duly elected representatives are gathered here, to shape the future of their country after wise deliberations…” Sheikh quoted Sir Owen Dixon who held Pakistan an aggressor, said that “the legality of accession has not been seriously questioned by any responsible or independent person or authority”.
On the issue of accession, Sheikh said, “our people will decide the future of our land in accordance with their own wishes”. He listed three options for consideration: continued accession to India, accession to Pakistan & not joining either of dominion with friendly relations with them. He indicated advantages and disadvantages of each but his inkling towards India was discernible even though he did not say so in clear words as he wanted the Assembly to “decide with an open mind”.
On remaining independent, Sheikh’s take was, “it is not easy to protect sovereignty & independence of a small country” and referred to Pakistan‘s aggression and said that J&K “was independent from August 15 to October22, 1947 and the result was that our weakness was exploited by the neighbour with whom we had a valid Standstill Agreement… What is the guarantee that in future too we may not be the victim of a similar aggression?” He concluded with these words, “…may God in His mercy, lead us on the right path”. And God did show the right path and the Constituent Assembly representing the collective will of the people, unanimously ratified the accession on 6th February, 1954.
The finality of accession and J&K being an “integral part” of the Union of India is unambiguously recorded in the first part of the preamble of the J&K Constitution. Its Section 3 also closed the issue of J&K’s relationship with India as it says, “The State of Jammu & Kashmir is and shall be an integral part of the Union of India.” And its section 147 totally debars amendment of Section 3 and thus settled Jammu & Kashmir accession forever. Every mainstream politician takes oath of this very Constitution.
The only regret was that Sheikh Abdullah and less than half a dozen of members of the Constituent Assembly were in prison at that point of time ( most unfortunate development) but he was always in favour of ratification of accession. Apart from Sheikh sahib’s statements and interviews, this was also reflected in the letter of Pt Nehru written to Shyama Prasad Mookerjee on January 10, 1953, “You refer to Sheikh Abdullah telling you that he and his colleagues were willing to get their constituent assembly to pass a resolution about the State’s accession to India, but that I did not approve it. This is partly true, but it refers to a particular time, when the constituent assembly started functioning, this proposal was considered.” Sheikh too in a way confirmed when he told Mookerjee in his letter dated February 4, 1953, “we are prepared to pass the resolution, but the Govt. of India in its turn must be in a position to fulfill all the obligations flowing from such a decision” (Nehru in Kashmir by M Y Taing).
On February 25, 1975 Sheikh Abdullah along with three others including Mirza Afzal Beg took the oath to uphold the same J&K Constitution which ratifies the accession to India and declare J&K an integral part of Union of India while entering the office of Chief Minister and Minister for the State respectively. Not only the oath of J&K Constitution but also of the Indian Constitution was taken by Sheikh‘s proud son ( Dr. Farooq Abdullah) and grandson ( Omar Abdullah) many times as CM of J&K and Union Minister and also at the time of contesting election for MLA and MP. When they and all other mainstream leaders have accepted State Constitution how can they call the accession to India conditional? Mixing accession with autonomy under Article 370 belies correct appreciation of constitutional realities. Whose interests we are promoting by distorting these realties and flogging a dead horse?
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