Prof. Dr K L Bhatia
Accession of Jammu Kashmir State to India as one of its Union of States legally and constitutionally is final and irrevocable. Accession was not conditional. Accession was on similar grounds inasmuch as it was common for all the Indian Princely States.
Only those who have contrived mindset have been mischievously spreading that Accession was not final. For example, the separatists, Huriyats, secessionists have never accepted the Accession of the State to India as final. They have been fueling the fire with the sole agenda that Kashmir is a disputed issue and as such seeking a remedy by involving a third party intervention. Thus, the problem is not with Kashmir rather it is in Kashmir.
Besides, persons like Mr. A. G. Noorani make a point confounded with confusion that Accession of Jammu Kashmir was not unconditional.
Even Dr. Karan Singh’s statement on the floor of the Parliament and his Press statement with sweeping conclusions in Kashmir in August 2016 that his father Maharaja Shri Hari Singh signed the Instrument of Accession only with regard to three subjects, namely, Foreign Affairs, Defence and Communication and as such Accession was not a settled issue, seems to be deceitful and fraught with misconception.
Persons like Abdullah has question the Accession with a twist that the State of Jammu Kashmir had not merged with India.
In the backdrop of this, there are varied dimensions to the Accession and giving rise to the demands of ‘independence’ of a federal unit of Union of States within the federal structure of India; or ‘joining with Pakistan’ thus strengthening the separatists and perpetrators of secessionism.
Instrument of Accession was an arrangement carved out by the colonialists for Indian Princely States making Indian federal structure strong by joining voluntarily and willingly with the Indian federal structure.
The British colonialists having finally agreed to creating two dominions India and Pakistan out of one Indian Continent, and, thus, the formulation of an Instrument of Accession for the Indian Princely States to accede to either dominion by signing the Instrument of Accession.
This system of Accession was carved out under section 5 of the Government of India Act, 1935, Cabinet Mission Plan of 16th May 1946, and section 7 of the Indian Independence Act, 1947.
There was no second option given to the Indian States, that is, to remain ‘independent’.
In pursuance to the scheme of Accession, in a meeting convened by the Governor-General, the Chamber of Princes worked out the module of the Instrument of Accession.
In the meeting of the Chamber of Princes, it was resolved that the Indian Princely States would accede to the Indian Union with regard to three subjects, namely, Defence, Foreign affairs, and Communication as reasonable, fair and just acceptable formulae. Every Ruler felt that Defence was a matter that a State could not conduct itself against external aggression. External Affairs is inextricably linked up with Defence, which is execisable outside the boundaries of India in which not even the greatest state can operate effectively. Communication is really a means of maintaining the life blood of the whole Indian continent. Regarding other subject matters they were free to decide with the dominion of India to which they acceded.
Those who proclaim that Hari Singh had signed the Instrument of Accession with regard to three subjects only, lest they forget that Accession of the Indian States with three subjects were commonly applicable to all the Indian Princely States and there was no conditionality attached to the Instrument of Accession.
Then, why and what for did they blame shri Hari Singh? The reasons are not far too seek.
With regard to the remaining subject matters, what the Indian Princely States did subsequent to the Accession in and out of the Indian Constitution making process, Shri Hari Singh did it in his policy announcement dated 15 July 1946:
“… Naturally we are interested in the progress of India as a whole. My views on the subject are well known and on more than one occasion I have given expression to them. They are briefly that we look forward to taking our due place in the new constitutional structure of India, whereby we hope that India will be able to take its proper place as a great nation, one of the brotherhood of nations, and to wield great influence in the affairs of the world, thus adding to human civilization those aspects of our great culture which will help to solve the problems of mankind.”
The above policy announcement of Shri Hari Singh unequivocally unfolds his clear perceptions about relationship of his Indian State with Indian Union in post-colonial rule. He had looked forward for the constitutional relationship between India and Jammu Kashmir on the touchstone of indestructible union of mutually reciprocal friendly interdependence on each other and not independence from each other. He had never expressed his discontent to the working of constitutional relationship between India and Jammu Kashmir State out of the Indian Constitutional framework; he had no where expressed in the Instrument of Accession for a separate constitution for his State nor did he seek for his State any separate provision in the Constitution of India.
Be that as it may, Accession was with regard to the Indian States acceding to India not as a matter of agreement or contract in lieu of any consideration, but it was voluntarily and willingly accession. The merger was of small principalities with the Indian states. There was no concept of merger conceived under the scheme of Accession vide 1935 Act, Cabinet Mission Plan 1946 and 1947 Act.
Under the scheme of the Indian Independence Act, 1947, “the dominion of India shall be a Union from fifteenth day of August, 1947. (1) An Indian (Princely) 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 thereof whereby the Ruler on behalf of the State (a) declares that he accedes to the dominion with the intent that the Governor-General, the dominion Legislature, the federal Court and any other dominion authority established for the purposes of the dominion shall by virtue of his Instrument of Accession exercise in relation to the State such functions as may be vested in them; and (b) assumes the obligations of ensuring that due effect is given within the State so far as they are applicable therein by virtue of Instrument of Accession. (2) An Instrument of Accession shall specify the matters which the Ruler accepts as matters with respect 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. (3) 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. … (6) As soon as may be after any Instrument of Accession or supplementary Instrument has been accepted by the Governor-General under this section, copies of the Instrument of Accession and of the Governor-General Acceptance thereof shall be laid before the dominion Legislature, and all courts shall take judicial notice of every such Instrument and Acceptance.”
Vast majority of Indian States irretrievably linked geographically with the dominion of India. The problem, therefore, was of far greater magnitude with the dominion of India. Some of the Indian States acceded to Indian Union by 15 August 1947 and some after 15 August 1947. The charge or blame that Shri Hari Singh was oscillating and acceded to the Indian Union belatedly seems to be illogical, unreasonable, unfair and unjust both legally and constitutionally.
Thus, the dominion of India established by 1947 Act became a Union comprising (a) the Governors’ provinces; (b) Chief Commissioners’ provinces; and (c) Indian Princely states. All the provinces and the Indian Princely States became the part of Indian Union much before the adoption and enactment (26 November 1949) and enforcement (26 January 1950) of the Constitution of India. Under the scheme of the Constitution of India vide Article 1 “India that is called Bharat shall be a Union of States”. Union of States read together with Schedules I and IV comprised of Part A States, Part B States (Indian States) and Part C States, which after re-organisation of States comprise of States and Union Territories. It may be pertinent to mention that four representatives of the State vide Proclamation, like other representatives from the respective Indian princely States, namely, Mr. Sheikh Mohammad Abdullah, Mr. Mirza Afzal Beg, Mr. Moulana Massodi and Mr. M. R. Baigra were not only to participate as mere moot spectators but active participators presenting the view points of the State in the Constituent Assembly of India. These four representatives had agreed with the scheme of the Constitution of India and were signatories along with other members of the Constituent Assembly to the text of the Constitution on 24 January 1950. There was not a single dissentient voice or any note of criticism from any of the representatives. Thus, Accession of the State to India is constitutionally sound. It is sanely as well as soundly felt that the question of accession is purely a matter of internal administration and wholly foreign to the jurisdiction of UN and UN Security Council or any international fora.
The Constituent Assembly of Jammu and Kashmir had ratified the Accession of the State to India. Preamble of the Constitution of Jammu and Kashmir states that “in Pursuance of the accession of this State to India which took place on 26 October 1947 to further define the existing relationship of the State with the Union of India as an integral part thereof”. Section 3 of the said constitution states “The state of Jammu and Kashmir is and shall be an integral part of the Union of India”. Section 4 of the said constitution defines the territory of the State that shall comprise all the territories which on the fifteenth day of August 1947, were under the sovereignty or suzerainty of the Ruler of the State. Section 5 of the said constitution states that “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. Section 147 states that “no amendment seeking to make any change in section 147; or the provisions of sections 3 and 5; or the provisions of the Constitution of India as applicable in relation to the State; shall be introduced or moved in either house of the Legislature”.
In the backdrop of the above, it discerns that the Accession of Jammu Kashmir to India is final both legally and constitutionally. Those who challenge it are groping in the dark. Accession of the State to India is a finished agenda. Instrument of Accession is a thing of past in the new Constitutional framework adopted and enacted on 26 November 1949 and enforced from 26 January 1950. Instrument of Accession is matter of past dead history inasmuch as dead wood. The Indian States have been integrated with the Republic of India in such a manner that they do not have to accede or execute a document of Accession for the purpose of becoming units of the Republic, but they are mentioned in the Constitution of India itself; and, in the case of practically all States , their constitutions also have been embodied in the Constitution for the whole of India. All the Indian States have agreed to integrate themselves in that way and accept the Constitution.
Part of the State (POJK) is in the hands of Pakistan. POJK is unfinished agenda and that should be a focal point of strategic discussions as to how to retrieve it from Pakistan.
(The author is former Professor National Law University Jodhpur)
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