cifjkindia.org - J & K Accession Quicksand - Appendices

J & K Accession Quicksand - Appendices
by Arvind Lavakare

APPENDIX I(i)

Whereas the Indian Independence Act, 1947, provides that as from the fifteenth day of August, 1947, there shall be set up an independent Dominion known as INDIA, and that the Government of India Act, 1935, shall with such omissions, additions, adaptations and modifications as the Governor-General may by order specify, be applicable to the Dominion of India;

And whereas the Government of India Act, 1935, as so adapted by the Governor-General provides that an Indian State may accede to the Dominion of India by an Instrument of Accession executed by the Ruler thereof;

Now, therefore, I.Shriman Indar Mahandar Rajrajeshwar Maharajadhiraj Shri Hari Singhji Jammu Kashmir Naresh Tatha Tibbet adi Deshadhpathi Ruler of JAMMU AND KASHMIR State in the exercise of my sovereignty in and over my said State do hereby execute this my Instrument of Accession and

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 of the Dominion, exercise in relation to the State of Jammu and Kashmir(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 (which Act as so in force is hereinafter referred to as "the Act").
I hereby assume the obligation of ensuring that due effect is given to the provisions of the Act within this State so far as they are applicable therein by virtue of this my Instrument of Accession.
I accept the matters specified in the Schedule hereto as the matters with respect to which the Dominion Legislature may make laws for this State.
I hereby declare that I accede to the Dominion of India on the assurance that if an agreement is made between the Governor-General and the Ruler of this State whereby any functions in relation to the administration in this State of any law of the Dominion Legislature shall be exercised by the Ruler of this State, then any such agreement shall be deemed to form part of this Instrument and shall be construed and have effect accordingly.
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 an Instrument supplementary to this Instrument.
Nothing in this Instrument shall empower the Dominion Legislature to make any law for this State authorising the compulsory acquisition of land for any purpose, but I hereby undertake that should the Dominion for the purpose of a Dominion Law which applies in this State deem it necessary to acquire any land, I will at their request acquire the land at their expense or if the land belongs to me transfer it to them on such terms as may be agreed, or in default of agreement, determined by an arbitrator to be appointed by the Chief Justice of India.
Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution.
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.
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.

Given under my hand this 26th day of October Nineteen Hundred and Forty-Seven

(Source: "The Constitution of Jammu & Kashmir - Its Development & Comments" By Justice A. S. Anand.)

Notes :

Justice Anand's book states that the draft of the Instrument of Accession had been circul t ated for discussion when Lord Mountbatte r n, as the Crown Representative, addressed the Chamber of Princes on 25th July, 1947. He advised the Princes and their re s presentatives that day that although legally they had become independent, they should accede to one or the other of the two Dominions of India or Pakistan. He warned the States that "if you do not link with one or the other of the Dominions, you may be cut off from any source of supply."
Justice Anand has stated that the Instrument of Accession signed by the Maharaja of Kashmir was in no way different from that executed by some 500 other States

APPENDIX I(ii)

Schedule of Matters With Respect to Which the Dominion Legislature May Make Laws for this State

A. DEFENCE

The naval, military and air forces of the Dominion and any other armed force raised or maintained by the Dominion; any armed forces, including forces raised or maintained by an acceding State, which are attached to, or operating with, any of the armed forces of the Dominion.
Naval, military and air force works, administration of cantonment areas.
Arms, fire-arms; ammunition.
Explosives.

B. EXTERNAL AFFAIRS

External affairs; the implementing of treaties and agreements with other countries; extradition, including the surrender of criminals and accused persons to parts of His Majesty's dominions outside India.
Admission into, and emigration and expulsion from, India, including in relation thereto the regulation of the movements of India of persons who are not British subjects domiciled in India or subjects or any acceding State, pilgrimages to places beyond India.

C. COMMUNICATIONS

Posts and telegraphs, including telephones, wireless, broadcasting, and other like forms of communication.
Federal railways; the regulation of all railways other than minor railways in respect of safety, maximum and minimum rates and fare, station and services terminal charges, interchange of traffic and the responsibility of railway administration as carriers of goods and passengers; the regulation of minor railways in respect of safety and the responsibility of the administration of such railways as carriers of goods and passengers.
Maritime shipping and navigation, including shipping and navigation on tidal waters; Admiralty jurisdiction.
Port quarantine.
Major ports, ' that is to say, the declaration and delimitation of such ports, and the constitution and powers of Port authorities therein.
Aircraft and air navigation; the provision of aerodromes; regulation and of air traffic and of aerodromes.
Lighthouses, including light ships, beacons and other provisions for the safety of shipping and aircraft.
Carriage of passengers and goods by sea or by air.
Extension of the powers and jurisdiction of members of the police force belonging to any unit to railway area outside that unit.

D. ANCILLARY

Elections to the Dominion Legislature, subject to the provisions of the Act and of any Order made thereunder.
Offences against the laws with respect to any of the aforesaid matters.
Inquiries and statistics for the purposes of any of the aforesaid matters.
Jurisdiction and powers of all courts with respect to any of the aforesaid matters but, except with the consent of the Ruler of the Acceding State, not so as to confer any jurisdiction or powers upon any courts other than ordinarily exercising jurisdiction in or in relation to that State.

APPENDIX I (iii)

Its Legality

Justice Anand states in his book that "A State could accede to either Dominion by executing an Instrument of Accession signed by the Ruler and accepted by the Governor General of the Dominion concerned. Legally, the interests of India and Pakistan in a particular State had no relevance; whether to accede or not and to which Dominion were not only independent of such considerations but an exclusive right of the Ruler.

He also informs that in the Indian Dominion the accession was to be made under Section 6 of the Government of India Act, 1935, as adopted by Section 9 of the Indian Independence Act, 1947.

Though the Instrument of Accession executed on October 27, 1947 between the Ruler of Kashmir and Governor-General of India was thus a legal act, Pakistan chose to refute it more than once almost from day one.

Thus, on November 1, 1948, in his meeting with Lord Mountbatten, Mohammed Ali Jinnah, Pakistan's founder, claimed that the accession of Kashmir to India was based on violence. Mountbatten replied, "the accession had indeed been brought about by violence, but the violence came from tribesmen, for whom Pakistan, not India was responsible."

Unfazed, Liaquat Ali Khan, Pakistan's first Prime Minister, was quoted in "Dawn" newspaper of November 5, 1947, as saying: "We do not recognise this accession. The accession of Kashmir to India is a fraud, perpetrated on the people of Kashmir by its cowardly Ruler with the aggressive help of Indian Government." Twelve days later, the same Pakistan newspaper, which was the official mouthpiece of the Muslim League, quoted Liaquat Ali Khan as saying that "There is not the slightest doubt that the whole plot of accession of Kashmir to India was preplanned. It cannot be justified on any moral or political grounds."

On March 6, 1951, the above thesis was repeated on the floor of the U. N. Security Council by Sir Zafarullah Khan, Pakistan's Foreign Minister. In support of his argument, he alleged that the Maharaja had no authority to sign the Instrument of Accession as he had lost the confidence of his people.

Justice Anand dismisses the above stand by saying "It is difficult to regard the Pakistani charges as anything more than abuse." And then goes on to demolish the charges on legal grounds. "Fraud" he says, "is causing a person to do something by deceit" but "there is no evidence of any deceit practised by India on Kashmir." He goes on to say "If by fraud it is meant that the Government of India should not have accepted the accession made by the Ruler of Kashmir unless it had been endorsed by the people, it is submitted that the Government of India had no right to question the right of the Maharaja to sign the Instrument of Accession, as he alone had the right and power to take a decision for his State. To have asked the Ruler to establish his right to sign the Instrument of Accession would have meant that the Government of India was going to meddle with the internal policies of the State. Law does not permit any such intervention in the affairs of another State."

APPENDIX I (iv)

Approved By Kashmiris

It is erroneous to believe that when the Ruler of Kashmir signed the Instrument of Accession on October 26, 1947, he bartered away for ever the right of the people of Jammu & Kashmir to determine their future status. Though that act, performed without prior consultation of the State's subjects, was perfectly legal under the British system of governance by sovereign monarchy, what has been overlooked is that the subsequent democratic political process that ensued did in fact give the Kashmiri people the chance, the right , to reverse the accession if they had perceived it as being inimical to their long-term, permanent interest.

This reversal could have been brought about through Jammu & Kashmir's Constituent Assembly democratically elected on the basis of universal adult franchise in August 1951. Prior to that, the Indian Constituent Assembly had, on January 26, 1950, adopted the Indian Constitution which allowed special provisions (Article 370) for Jammu & Kashmir and, on the same day, the President of India had issued, with the consent of the government of Jammu & Kashmir, the Constitution (Application to Jammu & Kashmir) Order, 1950, specifying the matters with respect to which the Union Parliament would be competent to make laws for the State.

Thus, says Justice Anand, if Jammu & Kashmir's Constituent Assembly had desired that the State should be completely free of the Indian Union, it could have requested the President of India to issue an order under the Indian Constitution's Article 370 making both, that Article and the Order of 1950, inoperative. In that eventuality, the State of Jammu & Kashmir would have become a mere protectorate of India because the matters of Defence would have remained with India as per one of the conditions of the Instrument of Accession. The other possibility was for Jammu & Kashmir's Constituent Assembly to request the Union Government to abrogate Article 370 as well as the Instrument of Accession.

None of the above two options were exercised by Jammu & Kashmir's duly-elected Constituent Assembly during its testing deliberations spread over five years. Instead, its Drafting Committee's report, which was submitted on 12th February, 1954, embodied the ratification of the State's accession to India. This report was adopted unanimously by the 64 members (out of the total of 75) present in the Constituent Assembly on 15th February, 1954.

And so it came to pass that in Jammu & Kashmir's Constitution, adopted on 17th November, 1956, Section 3 categorically and irreversibly confirmed that "The State of Jammu & Kashmir is and shall be an integral part of the Union of India."

APPENDIX I (v)

The Texas Parallel

When Mexico separated from the Spanish Empire and set up as an independent Republic, Texas was an integral part of the new State. Later, Texas revolted against the Mexican authorities and established itself as an independent entity which became recognised by the USA and the principal powers of Europe. In 1844, the Government of Texas, threatened by the menace of predatory incursions from Mexico, requested the Government of the USA to annex the State. After this proposal was sanctioned by the American Congress in a joint resolution in March 1845, America sent an Army to defend the western frontiers of Texas. When Mexico strongly protested against this as a violation of the rights of Mexico, the reply of the Government of USA did not consider it so; the USA, moreover, did not consider the joint resolution as giving any just cause or offence to Mexico since the Republic of Texas was an independent power, owing no allegiance to Mexico and constituting no part of Mexico's territory or rightful sovereignty and jurisdiction.

In the above Texas case, it was not contended that the annexation was by force or fraud. Justice Anand says that the allegation cannot be substantiated in the parallel case of Kashmir either.

APPENDIX II

United Nations Resolutions/Proposals on India's Complaint To The Security Council Against Pakistan Under Article 35 Of The UN Charter

Contents

Source: "India's Commitment To Kashmir"

Philosophy & Social Action Publication, 1994

Editor : Dhirendra Sharma.

APPENDIX III

THE PLEBISCITE VIRUS

According to a Philosophy & Social Action Publication of 1994 titled "India's Commitment To Kashmir" and edited by Dhirendra Sharma, there are several statements made by Jawaharlal Nehru to the effect that the question of Kashmir's accession to India must finally be decided in accordance with the wishes of the people. These cover a period between October 27, 1947 and August 7, 1952. In one of these statements, Nehru made reference to a "referendum" and in another to a "plebiscite'. (The source of all these statements is not mentioned in the publication available in Centre For Education And Documentation, Mumbai.)

While Nehru may well have made all the above referred statements in his wonted oralistic-cum-idealistic vision of world affairs, there is reason to wonder today whether, in those turbulent five years of India's independence, he had grasped the fate and legal position of Kashmir's signed accession to India.

Take, for instance, the broadcast of November 2, 1947 he made on All India Radio. According to the publication mentioned above, Nehru is supposed to have said that "where there is a dispute about the accession of a State to either Dominion, the decision must be made by the people of the State. It was in accordance with this policy that we added a proviso to the Instrument of Accession to Kashmir." (Emphasis added).

The above statement stands faulted on two counts. Firstly, Kashmir's legal accession to India was never in dispute. Pakistan never challenged the legality in the Security Council debates.

Secondly, Nehru was wrong to believe that the Instrument of Accession which the Maharaja of Kashmir signed on October 26, 1947 contained a special proviso. We have Justice Anand's doctoral thesis in support of this refutation of Nehru's understanding. Justice Anand has stated that "This Instrument of Accession (signed by the Maharaja of Kashmir) was in no way different from that executed by some 500 other States. It was unconditional, voluntary and absolute. It was not subject to any exceptions. As such, it bound the State of Jammu and Kashmir and India together legally and constitutionally." (Emphasis added by Justice Anand. )

Did Nehru have the legal authority to agree to a plebiscite proposal in the Security Council ? Did he have the constitutional authority to commit India to a plebiscite as he is reported to have done in his address to our Parliament on June 26, 1952 ? The answer given by M.C.Mahajan, former Chief Justice of India, is revealing. In his "Accession of Kashmir to India (The Inside Story)", the learned Chief Justice stated: "I do not see what constitutional power the Indian Government had to enter into such an agreement with Pakistan on the floor of the Security Council and how such an understanding can be considered as binding ... on the State of Jammu and Kashmir which had independent status before accession."

Justice Anand puts a seal on the subject by opining that with the accession of Kashmir to India being constitutionally valid, "it excludes the possibility of a plebiscite for determining the status of Kashmir'.

APPENDIX IV

ONE NATION, TWO CONSTITUTIONS

There is nothing illegal about the State of Jammu & Kashmir having its own Constitution that is distinct from the Indian Constitution itself. Nor should that fact be in any way misconstrued to infer that Kashmir is not an integral part of India. Rather, that the Kashmiri people were in no way obstructed from deciding their future status or bullied into accepting the Indian Constitution is testimony to the then Indian leaders' respect for legal agreements as well as for people's will.

The origin of this oddity of two Constitutions operating in one nation lies in Clause (7) of the Instrument of Accession which was signed by the Ruler of Kashmir as well as by some 500 other Princely States that existed under the paramountcy of British Crown in pre-Independent India. This Clause (7) did not commit any of these Princely States to acceptance of any future Constitution of India. Thus it was theoretically possible for independent India to have one Constitution for what was once British India and over 500 State Constitutions for those States which had decided to accede to the Dominion of India created by British Parliament's Indian Independence Act, 1947. However, many small States merged with what were known as Indian provinces and the rest of the Princely States agreed to be a part of the Indian Constitution with modifications in some cases.

Jammu & Kashmir was the only Princely State which exercised the option of having its own separate Constitution while it surrendered the subjects of defence, external affairs and communications to the Dominion of India as per the Instrument of Accession signed by its Ruler on October 26, 1947.

Broadly speaking, the Constitution of J.& K., 1956, defines the principal organs of government 7 , their functions and relations with each other. It is in no way repugnant to the Constitution of India but is complementary to it. It has to be read with that Constitution in so far as it is applicable to the State of J & K. It is in conformity with the Constitution of India. The two Constitutions are such that the State can claim no power not conferred upon it by the Constitution of India while the State can exercise any power not surrendered to the government of India. The J & K Constitution declares and contains everything that concerns the State as an individual unit of India's federal structure.

The J&K Constitution marked a complete change from the past monarchical form of government to a parliamentary, removable and elected executive.

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