Constitutionally, British and Princely India did not co-exist well with each other. The conflict between representative government (however limited) and monarchy was fudged during the long period of constitutional reform that set in at the turn of the century. From the 1890s until the adoption of the 1935 Government of India Act, the doctrine of Paramountcy shielded the princes from the need to reform their governments along representative lines, although some chose to do so through expedience. By the late 1930s, Jammu and Kashmir had an indirectly elected assembly (the Praja Sabha) and an embryonic party-based system made up of the National Conference and the Muslim Conference. In this regard, the Dogra kingdom was an exception.
BRITISH CABINET MISSION, 1946.
On March 24, 1946, the British Cabinet Mission Consisting of Lord Patrik Lawrence, the Secretary of State, A.V. Alexander and Sir Strafford Cripps came to Delhi. Discussions with leaders of the Congress and the Muslim League took place but no satisfactory result came out. The Cabinet Mission therefore, suggested its own formula on May 16, 1946, ruling out the possibility of formation of Pakistan. It recommended for a Union of India and a Constituent Assembly for framing a Constitution. The Mission assured that the British Government would Implement the Constitution drawn by the Constituent Assembly. This was an honest effort to solve the political riddle. But unfortunately on January 31. 1947 the Muslim League resolved and declared that the proceedings of the Constituent Assembly were “ultra vires” and “invalid”. It demanded its dissolution.
DECLARATION OF TRANSFER OF POWER
In February 1948, the Prime Minister of England Mr. Atlee declared that June 1948 was the last date up to which they would transfer power to responsible Indian Hands. If during this time Constitution was not drafted by a fully representative Assembly’ the British will have to consider to whom the powers of the Central Government in British India should be handed over in the best interest of the Indian people. Lord Mountbatten succeeded Lord Wavell on 24th March, 1947. He decided to complete the work of transfer of power within the next few months. Mountbatten’s Plan of June 3, 1947 consisted of two major and essential proposal:
(i) Partition of India was inevitable;
(ii) The representatives of the Muslim majority districts and those representing the rest of a province in the Legislative Assemblies of both Bengal and Punjab should meet separately and decide by a simple majority, whether their respective provinces were to be divided or not. If any part decided in favour of partition it would he made. After this each part may decide whether to join the existing Constituent Assembly in Delhi or to form a new Constituent Assembly for proposed transfer of power. The Legislative Assembly of Sind (excluding European members) and, British Baluchistan would be given an opportunity to reconsider its position and to choose which of the Constituent Assemblies it would join. The decision announced above related only to British India, and His Majesty’s policy toward Indian States remained unchanged.
The Mountbatten plan was accepted by the All India Congress Committee (AICC) and the Muslim League and the result was a foregone conclusion. The North West Frontier Province, The Muslim majority parts of Punjab and Bengal, Sind and Baluchistan all decided for a separate Constituent Assembly. Sylhet, too decided to be amalgmated with Eastern Bengal. India was thus partitioned and two countries of India and Pakistan came into being. The rest was all a formality. Two Boundary Commissions, one for Bengal and another for Punjab, under the Chairmanship of Siv Cyril Radcliffe were set up to demarcate the boundaries of the two Punjabs and Bengals.
INDIAN INDEPENDENCE ACT, 1947
Indian Independence Act, 1947 (the Act) is an Act to make provisions for the setting up in India of two independent Dominions and to substitute other provisions for certain provisions of the Government of India Act, 1935, which apply outside those Dominions, and to provide for other matters consequential on or connected with the setting up of those Dominions.
Section one states the fact of two new Dominions from 15.8.1947 in India, named or known respectively as India and Pakistan, section 2 speaks about the territories of the new Dominions. As per section 3 the Province of Bengal shall now cease to exist and shall be known as East Bengal and West Bengal. The boundaries of these new provinces shall be as fixed the boundary commission. The district of Sylhet shall be excluded from the Province of Assam.
As per section 4 the province of Punjab shall cease to exist and it shall be divided and known as West Punjab and East Punjab. Their boundaries shall be fixed by the Boundary Commission.
Section 5 appointed a Government General for each new Dominion for its governance…
DEVELOPMENTS IN J&K
Jammu & Kashmir bordering on both India and Pakistan had, like any other state, three alternatives, to assert complete independence, to accede to Pakistan, or to accede to India. Power to take the decision vested in the Ruler according to the British Government’s declared policy. The State of Jammu and Kashmir did not accede to either dominion by the 15th August and so became independent as from that date.
Tension was growing between Muslim Conference, an ally of the All India Muslim League representing the non-nationalist Muslims of Kashmir and the National Conference, an ally of Congress, claiming the support of the people of all religions. Observes Brecher, “the National Conference was, and still is, an embarrassment to the protagonists of the two-nation theory, whether they be in Pakistan or India…”. The public in Kashmir was at this time interested not so much in accession to India and Pakistan as in the establishment of a responsible government in the State. Thus, whereas in 1931 religion had played no small part in rousing the passions and emotions of Kashmiri Muslims, in 1946 religion was being consciously divorced from politics. And when Mr. Jinnah advised the “Mussalmans” of the State to unite under one banner the meeting broke up in pandemonium amidst shouts of ‘Go back Jinnah’. Such was the response of the people to Mr. Jinnah’s advice writes Justice A.S.Anand.
On 15th August, 1947, most of the leaders of the National Conference were in prison. Sheikh Mohd. Abdullah delivered a speech in Srinagar on 10th of May, 1946, wherein he sharply attacked the Maharaja. He declared, “we have realized the truth now. We are slaves and we have no rights. We have been purchased by the Dogras for a very small sum. Inspite of our repeated request that the administration of the country be entrusted to the people, the Government of the State always remained unmoved, Treaty of Amritsar has no legal validity. The English men are preparing to leave India with their bag and baggage. The Treaty has lost its basis”. This speech is considered the beginning of the” Quit Kashmir Movement”. Sheikh Abdullah was arrested on 20th May, 1946. Within few days the entire leadership of the National Conference was confined into the jails. The Indian leadership of the Congress Party lodged protest with the Maharaja which he declined to take note of. When Pt. Jawahar Lal Nehru decided to come to Kashmir to help the struggling leadership of the National Conference he was arrested on 19th of May 1946 at Domel near Kohalla, a border outpost on the Srinagar-Rawalpindi road. The news of the arrest of Pt. Nehru shocked the whole nation and had widespread repercussions in the State of Jammu and Kashmir. The National Conference leaders were arrested and tried for the Commission of offences of Sedition punishable under Section 124-A of the Penal Code (since declared unconstitutional) and sentenced to long rigorous imprisonment. Muslim Conference led by Mirwaiz Maulana Yousuf Shah though supported the Maharaja during the “Quit Kashmir Movement”. But when the people of the State saw that in India independence had come, they once again raised their heads and demanded the establishment of responsible government. In the absence of ‘British help’, which he had hitherto been getting to “suppress the internal rebellion and external aggression”, Maharaja Hari Singh found himself in a tight corner. Previously he had been averse to parting with an iota of power, but now he had seriously to consider the three alternatives, accession to India, accession to Pakistan, and independence… He thought of independence. He offered to sign a Standstill agreement with both India and Pakistan aimed at continuing the existing relationship pending his final decision regarding the future of the State. He sent two identical telegrams to both India and Pakistan on August 12, 1947 in the following words:
Jammu and Kashmir Government would welcome Standstill Agreement with India/Pakistan on all matters on which there exist at the present moment with outgoing British India Government. It is suggested that existing arrangements should continue pending settlement of details and formal execution of fresh orders.
The Foreign Secretary to the Government of Pakistan, Karachi, replied on 15th August, 1947:
Your telegram of the 12th. The Government of Pakistan agree to have a Standstill Agreement with the Government of Jammu and Kashmir for the continuance of the existing arrangements pending settlement of details and formal execution of fresh agreements.
The Government of India replied to the Prime Minister of Kashmir:
Government of India would be glad if you or some other Minister duly authorised in this behalf could fly to Delhi for negotiating Standstill Agreement between Kashmir Government and Indian Dominion. Early action desirable to maintain intact existing agreements and administrative arrangements.
For a variety of reasons, no standstill agreement was concluded between Kashmir and India. According to Mr. Mahajan, the former Chief Justice of India, Mr. Nehru, the Prime Minister of India was interested not so much in the accession of the State to India as in the power being given to the popular leaders. Whatever the reason, “the absence of a formal agreement between India and the Maharaja was interpreted by the Pakistanis to mean that ultimately Kashmir would become a part of Pakistan. And in fact Pakistan started putting pressure on the Maharaja to join Pakistan. Mr. Jinnah’s private secretary came to Srinagar at this time and “His Highness was told that he was an independent sovereign, that he alone had the power to give accession; that he need consult nobody, that he should not care for the National Conference or Sheikh Abdullah…that he need not delegate any of his powers to the people of the State and that Pakistan would not touch a hair of his head or take away an iota of his power” if he acceded to Pakistan. But the “Maharaja refused to take Mr. Jinnah’s promise literally”. In the second week of August, there occurred the ‘Poonch revolt’ against the authority of the Maharaja. ” Maharaja’s Government alleged that the revolt in Poonch was due to infiltration from Pakistan and the Pakistan Government charged the Kashmir Government with attacking the Muslim villages in the State. Side by side started an economic blockade from Pakistan and this lent support to Kashmir Government’s charges. Pakistan never unequivocally denied the charge of economic blockade. It, however, pleaded special circumstances. In its cable of October 2, 1947, the Pakistan Foreign Minister informed the Prime Minister of Kashmir:
“We are willing to do everything we can and are indeed taking steps to see that Kashmir is supplied with essential commodities of which it is in need. It must however be appreciated that certain difficulties stand in our way. Driver of lorries for instance, are reluctant to carry supplies between Rawalpindi and Kohala.”
Whereas the Pakistan Government was pleading special reasons, Dana, the Muslim League’s official organ, said on August 24, 1947, “the time has come to tell the Maharaja of Kashmir that he must make his choice and choose Pakistan”. Should Kashmir fail to join Pakistan, “the gravest possible trouble will inevitably ensue”. This threat alarmed the Maharaja, caught on the horns of a dilemma. On the advice of his Prime Minister, His Highness took a qualified letter of apology from Sheikh Abdullah and released him” on September 29, 1947. Once again the Government of Jammu and Kashmir alleged that Pakistan wanted to coerce the State to accede to Pakistan, and once again Pakistan denied it in its letter to the Government of Jammu and Kashmir on October 2, 1947:
It is entirely wrong to attribute difficulties in transport which have arisen owing to circumstances beyond the control of the West Punjab Government to the unfriendly intentions of that Government or to regard it as an act of coercion on your Government in taking a decision about accession of the State.
However, it is difficult to substantiate or disprove the charges and counter charges. Public opinion in Kashmir was “sharply divided along political as well as religious lines. Both India and Pakistan had substantial support”. And now since Sheikh Abdullah was no longer in prison, “they (Pakistan) could not so easily dispose, however, of the tenacious resistance against Jinnah and Pakistan of Kashmir’s largest political party, the Kashmir National Conference which was Muslim led and largely Muslim supported”. Soon after his release, Sheikh Abdullah addressed a public meeting in Srinagar. He reiterated that the main demand of the Kashmiris was ‘Freedom before accession’. He, however, emphatically added:
How can Muslim League or Mr. Jinnah tell us that we should accede to Pakistan? They have always opposed us in every struggle. Even in our present struggle (Quit Kashmir), he (Mr. Jinnah) carried on propaganda against us and went on saying that there was no struggle of any kind in the State. He even termed us Goondas.
Although Abdullah was opposed to the ‘two-nation theory’, yet he told the leaders of Pakistan:
… that, whatever had been the attitude of Pakistan towards our freedom movement in the past, it would not influence us in our judgment. Neither, the friendship of Pandit Nehru and of Congress nor their support of our freedom movement would have any influence upon our decision if we felt that the interests of four million Kashmiris lay in our accession to Pakistan.
According to Justice A.S.Anand, “From a strictly legal standpoint, this statement is irrelevant, for the people had no right to be consulted on the issue of accession. But from the political standpoint, public opinion should have been considered by the Ruler although if he did not conform to the wishes of the people, there was no legal process to compel him. The Ruler was, even at this stage, undecided. This chronic indecision of the Maharaja was the cause of all the turmoil to which the State was later subjected.”
On October 20, 1947, a large column of several thousand tribesmen armed with ‘bren guns, machine guns, mortars and flame throwers’ attacked the frontiers of the State. ‘Srinagar trembled before the danger of the tribesmen’s invasion.”‘ It was alleged that the tribesmen were being aided by Pakistan. Margaret Bourke White, who has done some research on the attack, records:
Certainly these miniature ballistic establishments (the small factories in the tribal areas) would hardly explain the mortars, other heavy modern weapons and the two aeroplanes with which the invaders were equipped. In Pakistan towns close to the border arms were handed out before daylight to tribesmen directly from the front steps of Muslim League Headquarters. This was not quite the same thing as though the invaders were being armed directly by the Government of Pakistan. Still Pakistan is a nation with one political party—the Muslim League.
And Menon observes that “to contend that the tribal invasion of Kashmir was wholly a spontaneous affair would be too huge a strain on human credulity”. The noted British Statesman, Lord Birdwood remarks “the fact that tribesmen carried a certain amount of equipment and arms which could not have come from the limited means of the tribal factories was a proof of a leakage from Pakistan’s regular forces”. But it is difficult to prove that the Government of Pakistan was at the back of the tribal invasion. However, it is an admitted fact that the tribesmen invaded Kashmir from Pakistan territory. And even if Pakistan was not directly aiding the tribesmen, its territory was being used by them for the purposes of the invasion. Mr. W.E. Hall, the leading authority in International law, says:
A State must not only itself obey the law, but it must take responsible care that illegal acts are not done within its dominions. Foreign nations have a right to take acts done upon the territory of a State as being prima facie in consonance with its will …
The same view was adopted by the Supreme Court of America. It laid down:
from the supremacy and exclusiveness of territorial jurisdiction, it follows that it is the duty of a state, within the bonds of legal responsibility, to prevent its territory and territorial waters from being used to the injury of another State.
The tribal invasion caused great devastation. By “October 24th even the chronic indecision of Hari Singh had given place to deep seated alarm and to a genuine concern for his personal safety.” The raiders were now fast approaching Srinagar, the summer capital of Kashmir; the Maharaja was extremely nervous. The Dogra Army and the National Militia, which was a volunteer Militia force formed by the National Conference, tried to hold the enemy’s onrush but “prolonged resistance to well trained and well equipped invaders was out of the question. The invaders were meanwhile pushing ahead, destroying and looting whatever came there way”. The state was at this time in imminent peril and the Maharaja saw his dream of independence shattered like a ‘house of cards’. He thought of accession to save his State. Panikkar suggests “… it was only as a last resort that the Maharaja approached the Dominion of India to accept the accession”. Campbell Johnson goes even further and suggests:
It is probable that nothing short of a full scale tribal invasion to the gates of his capital would have induced the hesitating Maharaja to accede at all.
Maharaja Hari Singh left Srinagar on 25th October, and went to Jammu, the winter capital of Kashmir. He appointed Sheikh Mohammed Abdullah, the emergency administrator before leaving the summer capital. Sheikh Abdullah advised the Maharaja that if the State was to be saved, he must accede to India and ask for immediate military help. Faced with such a serious crises, Maharaja Hari Singh at last with great reluctance wrote to Lord Mountbatten, the Governor-General of India.
KASHMIR ACCEDES TO INDIA
Maharaja Hari Singh’s letter to Lord Mountbatten read:
I have to inform your Excellency that a grave emergency has arisen in my State and request the immediate assistance of your Government. As your Excellency is aware, the State of Jammu and Kashmir has not acceded to either the Dominion of India or Pakistan. Geographically my State is contiguous with both of them. Besides, my State has a common boundary with the Union of Soviet Socialist Republic and with China. In their external relations the Dominions of India and Pakistan cannot ignore this fact. I wanted to take time to decide to which Dominion I should accede or whether it is not in the best interests of both the Dominions and my State to stand independent, of course with friendly relations with both.
After this paragraph followed an account of the Tribal invasion and then His Highness wrote:
With the conditions obtaining at present in my State and the great emergency of the situation as it exists, I have no option but to ask for help from the Indian Dominion. Naturally, they cannot send the help asked for by me without my State acceding to the Dominion of India. I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your Government.
I may also inform your Excellency’s Government that it is my intention at once to set up an interim government and to ask Sheikh Abdullah to carry the responsibilities in the emergency with my prime minister.
Attached to the letter was the Instrument of Accession duly signed by the Ruler, Maharaja Hari Singh. The operative part of the same read:
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 adopted 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 Mahander Rajrajeshwar Maharajadhiraj Shri Hari Singh Ii Jammu Kashmir Naresh Tatha Tibet adi Deshadhipathi 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….
Lord Mountbatten, the Governor-General of India indicated his acceptance in the following words:
I do hereby accept this Instrument of Accession.
Dated this twenty-seventh day of October Nineteen hundred and forty-seven.
This Instrument of Accession 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. And so, regarding the legality of the accession in the judicial sense of the word there is no doubt. Indeed as Campbell-Johnson says:
The legality of the accession is beyond doubt…. It should be stressed that the accession has complete validity both in terms of the British Government’s and Jinnah’s expressed policy statements.
The execution of the Instrument of Accession by the Ruler and its acceptance by Governor-General finally settled the issue of accession of the State of Jammu and Kashmir. After accepting the Instrument of Accession, Lord Mountbatten wrote a personal letter to Maharaja Hari Singh, in reply to his letter which had accompanied the Instrument of Accession. It must, however, be pointed out here that Maharaja’s letter was no part of the Instrument of Accession. In his letter Lord Mountbatten wrote:
…my Government have decided to accept the accession of Kashmir State to the Dominion of India. In consistence with their policy that in the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State, it is my Government’s wish that, as soon as law and order have been restored in Kashmir and its soil cleared of the invader, the question of State’s accession should be settled by a reference to the people.
This statement has figured as the most controversial feature of Kashmir’s accession to India. Critics of the accession have steadfastly maintained that this stipulation renders the Accession conditional. The present writer believes that this statement does not and cannot effect the legality of the accession which was sealed by India’s official acceptance. This statement is not a part of the Instrument of Accession. Mr. M.C. Mahajan, the former Chief Justice of India has observed thus:
“The Indian Independence Act did not envisage conditional accession. It could not envisage such a situation as it would be outside the Parliament’s policy. It wanted to keep no Indian State in a state of suspense. It conferred on the rulers of the Indian States absolute power in their discretion to accede to either of the two Dominions. The Dominion’s Governor-General had the power to accept the accession or reject the offer but he had no power to keep the question open or attach conditions to it…”
The only documents relevant to the accession were the Instrument of Accession and the Indian Independence Act and as the Constitutional documents did not contemplate any conditions, there can be no question of the accession having been conditional. In the words of Mahajan:
Finality which is statutory cannot be made contingent on conditions imposed outside the powers of the statute. Any rider which militates against the finality is clearly ultra tires and has to be rejected.
However, Pakistan refused to recognise this accession, Dawn, the Muslim League’s Official Organ quoted Mr. Liaquat Ali Khan 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.
A few days later the same Newspaper quoted the Prime Minister of Pakistan saying:
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.
The same thesis was presented by Sir Mohammed Zafarullah Khan, Pakistan’s Foreign Minister in 1951. Sir Zafarullah also alleged in support of his argument that the Maharaja had no authority to sign the Instrument of Accession as he had lost the confidence of his people.
Moreover, it cannot be denied that the Maharaja of Kashmir offered to accede to the Indian Dominion after the assaults and raids had started on the State. When at his meeting with Lord Mountbatten on November 1, Mr. Jinnah claimed that the accession of Kashmir to India was based on violence, Lord Mountbatten replied, “the accession had indeed been brought about by violence, but the violence came from tribesmen, for whom Pakistan, and not India was responsible”. Indian law recognises as voidable a contract procured by coercion, but only when the coercion was exercised by or for the party to the contract other than the party coerced. India exercised no coercion; the tribesmen were not acting on behalf of India and whatever their objective, it was not to compel Kashmir to accede to India.
Justice Anand further clarifies the issue regarding the question of authority whether the Maharaja had the right to sign the Instrument of Accession for his State or not. During the reign of British in India, the Crown dealt with the Maharaja alone. It recognised him only. Also, when the Government of Pakistan concluded a Standstill Agreement with the Maharaja, it did so on the basis that the Maharaja was the sole representative of the State. These associations were perfectly justified for, in a monarchical form of Government, it is the Monarch who personifies and represents the State. And the Government of India, in its relations with the Maharaja, acted in accordance with law and recognised international practice. The accession of the State to India cannot be called in question on any legal grounds.
Supreme Court of India has also held that the ‘act of the execution of the instrument of Accession by the ruler and its acceptance by the Governor General are both Acts of State into whose competency no court can enquire.’
1.Outlines of Indian legal and Constitutional History.By Prof.M.P.Jain
2.The Constitution of Jammu & Kashmir Its Developments & comments.By Justice A.S.Anand
3.Commentary on the Constitution of Jammu & Kashmir in the historical & Geographical backdrop.By Justice R.P.Sethi