Chand Jee Bhat
The British Parliament passed the Indian Independence Act, 1947 on June 17, 1947. The Act received Royal approval on July 18, under which two independent countries of British India were announced-India and Pakistan.
The Areas of East Bengal, West Punjab, North West Frontiers Province and Sindh went to Pakistan while the remaining parts under British Government were known as India.
Under this act, the states of British India were made free from the supremacy of British rule, but they did not get the status of a Nation and it was suggested to them that their interest lies with their mergr into India or Pakistan. With the implementation of this Act, the British responsibility of ensuring security of these states was ended automatically.
As per the Government of India Act, 1935, which was included in the Indian Independence Act, 1947, the right of taking a decision regarding merger was given to the rules of the state and any Indian State should be treated as merged into either of the two nations only when the Governor General accorded the approval to the Instrument of accession prepared by the Administration of the respective state.
There was no provision for conditional merger in the Indian Independence Act, 1947.
On October 26, 1947 Maharaja Hari Singh merged Jammu and Kashmir into India on the basis of the same legal Instrument of Accession under which the remaining states were merged into India and the then Governor General of India Mountbatten had signed the same I hereby accept this Instrument of Accession, dated Octobers 27, 1947
The relevant clauses of the Instrument of Accession signed by Maharaja Hari Singh, which show the full and final merger of Jammu & Kashmir into India, are as follows:
Clause-1: “I hereby declare that I accede to the Dominion of India with the intent that the Governor General of India, The Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall by virtue of this my Instrument of Accession, but subject always to the terms thereof and for the purposes only of the Dominion.”
Clause-9: “I hereby declare that I execute this Instrument on behalf of this state and that any reference in this Instrument to me or to the Ruler of the State is to be construed as including a reference to my heirs and successors.”
According to Clause 1 of the Instrument of Accession, Jammu & Kashmir is a permanent part of India.
According to Clause 1 of the Indian Constitution Jammu & Kashmir is an Integral part of India. Jammu & Kashmir stands as State in the list of States of Indian Union at number 15.
Maharaja Harisingh had further stated in this Instrument of Accession that:
“The terms of this my Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act 1947, unless such amendment is accepted by me by instrument supplementary to this instrument.
Note: under the Indian Independence Act, 1947, even Pandit Nehru, Lord Mountbatten, Mohammed Ali Jinnah, Queen of England, British Parliament and residents of states concerned do not have any right to raise any objection with regard to the merger by the rules himself.
In 1951, the Jammu & Kashmir State constituent Assembly was constituted. All the 75 elected member were of National Conference and Moulana Masoodi became its Speaker. This very constituent Assembly ratified the merger of the state with Indian on February 6, 1954. on May 14, 1954, the President of India issued Constitutional Order (Applicable on Jammu and Kashmir) under Article 370 of the Indian Constitution through which the Indian Constitution was applied on Jammu & Kashmir with certain exceptions and amendment.
State’s own Constitution, which came into force from January 26, 1957, states:
Article 3: Jammu and Kashmir state is and shall remain an integral part of India.
Article 4: Jammu and Kashmir state means the area which was under the sovereign control of the rulers of the state.
It has been very clearly stated in Article 147 that Article 3 ad Article 4 are irrevocable.
It had been reiterated in Indira-Sheikh Agreement of 1974 that:
The state of Jammu & Kashmir, which is a constituent unit of the Union of India, shall in its relation with the Union, continue to be governed by Article 370 of Constitution of India.
In the resolution adopted in Parliament on November 14, 1964 after China’s aggression and in the resolution adopted unanimously in Parliament on February 22, 1994, we have stated time and again that we will definitely take back the area occupied by China (1962) and by Pakistan in (1947)
Unwanted and illegal comments.
On October 27, 1947, Lord Mountbatten, while accepting the instrument of Accession of Maharaja Harisingh, had sent a letter in which he had made an unwanted and illegal remark. “My government has taken a decision to accept the proposal of merger of Kashmir with India. Keeping in view the policy of my Government, the final solution of this issue of merger should be found out according to the wishes of the people of State. My government wants that when law and order situation is restored in the state and its area is freed from the invaders, then the issue of state’s merger should be resolved according to the wishes of people of the state.”
On November 1, 1947 Lord Mountbatten held discussion with Mohammad Ali Jinnah in Lahore and had accepted the plea of holding plebiscite in Jammu and Kashmir. On November 2, 1948 in his Radio Broadcast the then Prime Minister of interim Indian Government Pt. Jawaharlal Nehru had also given assurance to hold plebiscite in Jammu and Kashmir. The Government of India placed a proposal before the United Nations, Organization on January 1, 1948 appealing to declare Pakistan an invader, get the land liberated and also to know the people’s opinion in a peaceful atmosphere.
In Fact, this suggestion and proposal were illegal because Maharaja Hari Singh had merged Jammu & Kashmir with India under the same Indian Independence Act of 1947 under which the partition of India took place, Pakistan was formed, and all of the 569 princely states were merged either with India or Pakistan.
Lord Mountbatten had no right to add this anti-India and ridiculous condition with merger. Besides, he had no right to cross his limits by expressing his view about legal commitment of holding plebiscite in Jammu and Kashmir during his talk with Mohammad Ali Jinnah. It is also true that the then Prime Minister Jawahar Lal Nehru had also acted unconstitutionally by committing plebiscite like Lord Mountbatten. India is not bound to accept these illegal assurances constitutionally and morally.
Neither the State constitution, nor the Indian Constitution, provides the right for Independence. Nobody in the country is authorized to change the basic structure (Features) of the Indian constitution or change the Indian Borders.
(The author isDistrict President BJP Kashmir Displaced District)
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