Anil Gupta
The Instrument of Accession (IOA) was signed by Maharaja Hari Singh Ji of Jammu and Kashmir (J&K) State on 26 th Day of October 1947 as required by the Indian Independence Act 1947. With the signing of this Instrument the hitherto Independent State of J&K acceded to the Dominion of India. The contents of the IOA were identical to the ones signed by the rulers of the similarly placed other rulers of erstwhie princely states who were given the choice to join either of the Dominions of India or Pakistan as required by the Act of 1947. Along with the IOA, the Maharaja also wrote a letter to Lord Louis Mountbatten, the then Governor General of India. The letter did not contain any additional terms and conditions (other than those included in the IOA) but simply explained the reasons for his delayed decision and the special circumstances that have led to his present decision.
The IOA contained nine Articles and one Schedule. At this stage it would be in the interest of the readers to reproduce verbatum certain articles of the IOA. Five Articles of the IOA clearly stand out. These are:-
Article 1. It states, 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 purpose of the Dominion shall by virtue of this my Instrument of Accession, but subject always to the terms there of, and for the purposes only of the Dominion, excercise in relation to the State of ———–(hereinafter referred to as This State) such functions as may be vested in them by or under the Government of India Act 1935 as in force in the Dominion of India on the 15th Day of August 1947 (hereinafter referred to as Act).
Article 3. I accept the matters specified in the Schedule hereto as the matters with respect to which the Dominion Legislaturemay make laws for this State.
Article 5. The terms of this my Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act of 1947, unless such amendment is accepted by me by an Instrument supplementary to this Instrument.
Article 7. Nothing in this Instrument shall be deemed to commit me in any way to the acceptance of any future Constitution of India or to fetter my decision to enter into arrangements with the Government of India under any such future constitution.
Article 8. Nothing in this Instrument affects the continuance of my sovereignty in and over This State, or, save as provided by or under this Instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in This State.
The Schedule specified the matters with respect to which the Dominion Legislature may make laws for the acceded States. These were Defence, External Affairs and Communications. Thus, from the perusal of the IOA it is evident that all the princely states acceded to the Dominion of India in 1947 on identical terms and conditions and there was nothing special or different in case of the IOA signed by Maharaja Hari Singh Ji of J&K. While Article 1 specified that the IOA would govern the relationship of the States with Dominion of India, Article 3 specified the three subjects namely Defence, External Affairs and Communications that would fall under the Federal jurisdiction and the remainder Articles emphasised the sovereignty of the Rulers in and over their respective States. Later, the rulers of the other princely states became more integrated in regard to additional subjects. They individually or collectively accepted the Constitution of India in its entirety by joining the Indian constituent assembly thus accepting the complete Indian sovereignty over their States. But the turn of events in J&K did not allow the ruler to follow suit.
The circumstances at that time in the State of J&K were different from the rest of the country. The state was in a turmoil. The Maharaja was under tremendous pressure from Sheikh Mohammed Abdullah and Pt Jawahar Lal Nehru, the prime minister of India. On 30 October 1947, the Maharaja appointed Sheikh Mohd Abdullah as the Head of the Administration. On the 5th Day of March 1948, a so called popular interim government was appointed and in mid 1949 he was forced to abdicate in favour of his son. On the 9th Day of June 1949, through a Royal Proclamation He entrusted all his powers to Yuvraj Karan Singh, just 18 years of age. Thus, virtually the control of the state was wrested by Sheikh Abdullah with the tacit support of Pt Nehru. The Maharaja,thus, left the state without exercising the option of accepting complete sovereignty of the Republic of India. From the sequence of events explained earlier, it is clear that from the day IOA was signed, The Maharaja was gradually sidelined by the Sheikh and not given a chance to exercise his discretion and power under Article 5 of the IOA, which the other rulers used to accept complete soverignty of India over their princely states. In my view, this was done deliberately by Nehru-Sheikh combine. The ‘NIYAT’ (intention) of the Sheikh right from the beginning was to become an uncrowned ruler of the State. He wanted to enjoy unlimited powers to rule the State as per his whims and fancies. He did not want his authority to be curtailed by powers in Delhi. He was dreaming of a state with a separate constitution of its own. it was this ‘Niyat’ that led to inclusion of Article 370 in the Constitution of India that came into effect on the 26th Day of January 1950 when the Dominion of India became the Republic of India.
In June 1949, The Yuvraj based on the advice of the Council of Ministers nominated a four member team headed by the Sheikh to represent the state in the Constituent Assembly of India. Since, the Maharaja had abdicated without exercising his power of accepting the Indian Constitution under Article 5 of IOA’ the Constituent Assembly of India was at loss with regards to the State of J&K. This is when the Sheikh used his negotiating skills combined with Nehru’s soft corner for him that he forced his way for granting special status to the State. Dr Ambdekar and many others were opposed to the idea. But the Sheikh was not willing to settle for anything less and enjoyed the support of Pt Nehru. The Sheikh ultimately succeeded in his ambition and Article 370 granting special status to the State was included in the Constitution of india, albeit as a temporary provision. The President of India issued his First Order under Article 370 for limited application of Constitution of India to J&K. It was envisaged that steps will be taken to convene a Constituent Assembly of the State which apart from addressing the other matters related to the special status of State will make a recommendation to the President for abrogation of Article 370. The proclamation for convening the Constituent Assembly was issued on 1 May 1951. The Sheikh while addressing the Constituent Assembly on 5 November 1951 made three propositions: first, accession to India; second, accession to Pakistan and third, an independent State on the model of Switzerland. The accession of J&K with india was quite complete and the State of Jammu and Kashmir was a constituent unit of the Union of India like any other. This fact was also emphasised and clarified by Pt Nehru while addressing the Parliament on 24 July 1952. Thus, one is at loss in understanding the justification of Sheikh in proposing three courses that included accession to Pakistan and independence. It confirms my hypothesis of the Niyat of Sheikh. The various actions of the Sheikh between 1950-1953 are well known to the people of the State. The Constituent Assembly gave its concurrence to the application of Constitution of India (not in its entirety) on 15 Feburary 1954. The President of the Constituent Assembly formally declared its dissolution on 17 November 1956 but without recommending the abrogation of Article 370 to the President of India. There was no option left with the President of India for further integration of the state except through Presidential Orders. Some refer to it as erosion of Article 370 while I consider it as a neceesity to enable the people of J&K to enjoy the benefits of the people friendly statutes of the Constitution of India.
In the latest statement made by the Chief Minister Omar Abdullah he claims that Article 370 can not be abrogated. His logic is that only the Constituent Assembly could recommend its abrogation and the same no longer exists. This is a defeatist statement and tantamounts to fait accompli. The current ground swell of nationalism displayed by the residents of all three parts of the State deserves praise and to an extent negates the utility of Article 370. The Abdullahs who made Article 370 an electoral issue have been shown the door by the nationalist Kashmiris along with the people of Jammu and Ladakh. Not withstanding the same, if the majority of the residents of the state desire its abrogation, The President of India as head of the Indian Republic has enough tools and mechanisms available at his disposal to fulfill the wishes of her citizens. Whether, the people of J&K want its abrogation or not, it is for them to decide. It is for the entire citizens of the state, and not a particular group or section, to debate and decide the continuity or abrogation of Article 370. The questions to be debated are; has it achieved the purpose for which it was included in the Constitution, is it relevant today, is it a hindearance to the economic development of the state, is it in anyway discriminatory, is it instrumental in denial of basic fundamental rights to its citizens as enjoyed by their counterparts in the rest of the country, last but not the least does it protect the interests of its citizens or promotes separatism. The will of the majority would prevail. If there is good Niyat; anything and everything can be achieved.
(The author is a former Brigadier)
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