K B Jandial
Today is the 70th Accession Day of Jammu & Kashmir. On this day in 1947, the Princely state was formally and legally acceded to the Dominion of India after it failed to maintain its two months and11days of Independence. But the historic day has been reduced to more or less eventless day with both State and Central Governments shirking from celebrating it officially. And so do the people, even though some movement forward is noticed this year.
Some questions about Accession bothered many of us. Why people are ignorant of the reality of Accession? Why State’s three regions treat Accession Day differently? Why Kashmir’s ‘Black Day’ politics started 28 years after the Accession & not immediately after the Accession? Who and why Accession issue is kept alive? Will it benefit the State and its people? Why couldn’t it be celebrated officially even today? Do we have doubts about Accession? Why doesn’t the State observe day of aggression as Black Day after what the invaders did to us? People need answers from the political leadership. Whatever are the reasons or failures including Pt Nehru’s mindless commitment & U N resolution, ignorance about the truth of Accession is only allowing the falsehood to kill the truth.
The constitutional headway for “Freedom” stemmed from two specific laws- Govt of India Act, 1935 and Indian Independence Act, 1947. The former Act proclaimed a federal India by providing mechanism for uniting provinces-(British India) and princely States. Section 6 exclusively empowered the Rulers of the Indian States to execute Instrument of Accession. It was he (the Ruler) and he alone would decide to accede to the Federation as established under this Act. Under proviso of sub clause 4, after acceptance by His Majesty the validity of the Instrument or any of its provisions shall not be called in question. and the provisions of this Act shall, in relation to the State, have effect subject to the provisions of the Instrument. Its sub clause 6 stated that such Instruments “shall not be valid unless it is executed – by the Ruler himself.
The Indian Independence Act, 1947 made provision for setting up two independent Dominions, and to substitute other provisions for certain provisions of the Government of India Act, 1935 and to provide for “other matters consequential on or connected with the setting up of those Dominions”. Its section 9 gave effect to the provisions of Govt of India Act, 1935 and stated that nothing shall “prevent accession of Indian States to either of the Dominions”
Under the Act, with the lapse of paramountcy on 15th August, 1947 the Indian States would have become Independent & sovereignty reverted to the Ruler, not to the people. The power to accede to Dominion was exclusively vested with the Ruler who alone could execute the Instrument of Accession.
Meanwhile, the Cabinet Mission that came in May 1947 asked the Princely States to surrender to the Federal Parliament only three subjects: Defence, External Affairs & communication, envisaging internal autonomy for the States. Lord Mountbatten addressed a meeting of Chamber of Princes on July 25, 1947 and circulated a draft Instrument of Accession. The only advice he gave to the Rulers was on ‘geographical contiguity’.
Since Maharaja Hari Singh did not accede by the “Appointed Date” (15th August, 1947), J&K became independent on the lapse of British paramountcy. The State could not maintain its “Freedom” for more than 2months & 6 days as Pakistan after getting rebuff from Kashmiris as well as Maharaja for not acceding, pushed columns of thousands of heavily armed tribesmen from its territory who attacked J&K on 22nd October, 1947. It was very clear that Pakistan wanted to forcibly annex J&K without waiting for the decision of the Ruler and the law governing accession. The marching columns caused immense devastation and atrocities, raped nuns and killed people. One such brave heart was young NC activist Maqbool Sherwani in Baramulla who had put the invaders on wrong route to gain time for Indian army to flush them out. Later on, invaders nailed him and martyred.
Finding State army and National Militia (NC’s voluntary force) unequal to the armed invaders, Maharaja approached India for military help which was denied as J&K had not yet acceded to India. Finally, Maharaja Hari Singh signed the Instrument of Accession on 26th October, 1947 and rushed it through his PM Mehr Chand Mahajan and V P Menon, to Governor General of India along with his personal letter explaining urgency to rush forces. , Mountbatten accepted it as required in the Act. He recorded, “I do hereby accept this Instrument of Accession”. J&K formally acceded to India on 27th Oct.
Mountbatten wrote to Maharaja “… my Government have accepted the accession of Kashmir State to the Dominion of India…. the question of accession should be decided in accordance with the wishes of the people…”.
Legally, Mountbatten’s letter violated GOI Act, 1935 as its Sec 6 sub sec (1) conferred absolute power in the Ruler to decide on issue of accession. Proviso of sub sec (4) says that once IOA is accepted by His Majesty after establishment of the Federation, the validity of that Instrument or of any of its provisions shall not be called in question. Moreover, there was no provision in these Acts that allowed deferred, conditional, temporary or provisional Accession. Once accepted it became absolute. Governor General recorded his acceptance on the Instrument how can he defer the accession issue?
Sh M C Mahajan, former CJI observed, “Finality which is statutory cannot be made contingent on conditions imposed outside the power of the statue. Any rider which militates against the finality is clearly ultra vires & has to be rejected.”
Be that be so, Mountbatten’s wish was legally met when the State’s Constituent Assembly , representing the collective will of the people, ratified the accession on 5th February, 1954.
Accession is sought to be disputed in the context of UNSC resolution of 13th August, 1948 which talked about plebiscite. What happened in UN was indeed India’s failure. Instead of continuing operations to clear aggression from the remaining parts of the State, Pt. Nehru, on the advice of Lord Mountbatten, lodged complaint with UNSC on January 1, 1948. India went to UN to stop Pak aggression but instead agreed, rather offered, to settle the Accession by plebiscite. Why a settled issue was unsettled?
Many constitutional experts opined that it was beyond the competence of UN. The question of aggression, not accession, fails in the competence of UN. The UN had no locus standi.
Moreover, under the GOI Act, 1947 & Indian Independence Act, 1947 neither India nor Pak had a right to demand reopening of Accession. It was between the Ruler and the His Majesty and Dominions had no power barter it.
Now analyse the UN Resolution. Under Resolution No.47 on April 21, ’48 and of 13th August, ’48, UNSC called for cessation of hostilities, withdrawal of all Pakistani troops and tribesmen and provided U.N supervised Plebiscite in J&K under an administrator to determine the aspirations of the people. Pakistan had agreed to withdraw its troops from that State & secure the withdrawal of tribesmen and Pakistani nationals who have entered the State for the purpose of fighting. When the commission notifies to the Government of India that the tribesmen and Pakistani nationals referred to in Part II, A, 2, hereof have withdrawn….the Government of India would begin to withdraw the bulk of its forces from that State in stages to be agreed upon with the United Nations Commission for India and Pakistan.
The Resolution clearly asks Pakistan to vacate its troops from the part of the state under its occupation. It states, albeit indirectly, that Pakistan had consistently lied on involvement of its troops in J&K. Once the then Pakistani Prime Minister conceded that Pakistani troops were indeed involved, the UN had no option but to ask for their withdrawal. But the withdrawal never took place.
Since Pakistan failed to implement its clauses & as such, UNCIP didn’t communicate to India for implementation of Resolution. And with that, the question of plebiscite fell through and was never revived at the UN level.
Significantly India ‘s complaint was lodged under U.N Charter’s Article 35 (Chapter VI) & such resolutions are non-binding and its enforceability non mandatory as opposed to Resolutions passed under chapter VII. In March 2001, the then UN Secretary General, Kofi Annan during his visit to India and Pakistan, had said that Kashmir Resolutions are only advisory & comparing with those on East Timor and Iraq was like comparing apples & oranges, as those resolutions were passed under chapter VII, which are enforceable. Shimla Pact that over rides the non-implementable UN resolution by bilateral dialogue.
The Truth about the accession is that it is final and complete which stood ratified by State’s Constituent Assembly. Autonomy that is granted to J&K under Art 370 should not be misread as conditional accession. J&K Constitution defines in Section 3 the relationship with India as “…the State of J&K is & shall be an integral part of Union of India”. Section 147 makes it un-amendable. So, under Law, Accession to India is irreversible & irrevocable by any power. Both constitutions have no provision for secession.
Some critics say that undertaking which India gave in UNSC is wholly ultra vires to the Indian Independence Act, ’47 & constitutional powers of both Dominions. Even Art 370 doesn’t empower the GOI to enter into agreement with Pak to decide J&K’s future. Article 235 empowers Parliament to make laws to give effect to Int. treaties but it had proviso for J&K… nothing without the consent of J&K Govt that was neither asked nor accorded.
( feedback: kbjandial@gmail.com)
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