C.L. Agrawal Memorial Lecture Accession of Kashmir Historical & Legal Perspective
by Dr justice Adrarsh Sein Anand Judge, Supreme Court of India*
Cite as : (1996) 4 SCC (Jour) 11
The Indian native States, of which the State of Jammu and Kashmir was one such State, were those areas in the Indian subcontinent which were for internal purposes outside the administrative, legislative and judicial sphere of the British India Government. Each such State had a hereditary ruler, who, subject to the paramountcy of the British Crown, exercised, with some exception, unlimited power over the States ruled by them. These States covered more than half the area of the Indian subcontinent and were referred to as Indian India. The other part of India comprising the provinces and certain other areas was referred to as British India. The rulers of the native States were sovereign subject to the paramountcy of the British Crown. On her assumption of direct rule in India in 1858, the Queen Empress through a proclamation declared to the native princes of India that all treaties and engagements made with them by or under the authority of the East India Company would be honoured and scrupulously maintained. That the rights, dignity and honour of native princes would be maintained.
The aftermath of the Second World War and the assumption of power by a Labour Ministry in England, brought about a change in the British policy towards India. The Secretary of State for India, Lord Pethick Lawrence announced on 19-2-1946 the decision of the British Government to send a delegation of three Cabinet Ministers to India to find a solution for the problem of India. The delegation popularly known as "Cabinet Mission" arrived in India on 23-3-1946. On 25-5-1946 the Cabinet Mission issued a memorandum dated 12-5-1946 in regard to the native States. In this memorandum the Mission affirmed that on the withdrawal of British Government from India, the rights of the States which flowed from their relationship with the Crown would no longer be possible to exist and the rights surrendered by the States to the paramount power would revert to the rulers of those States when the two new dominions of India and Pakistan are created. Paragraph 5 of the Memorandum read:
"When a new fully self-governing or independent Government or Governments come into being in British India, His Majesty's Government's influence with these Governments will not be such as to enable them to carry out the obligations of paramountcy. Moreover, they cannot contemplate that British troops would be retained in India for this purpose. Thus, as a logical sequence and in view of the desires expressed to them on behalf of the Indian States, His Majesty's Government will cease to exercise the power of paramountcy. This means that the rights of the States which flow from their relationship to the Crown will no longer exist and that all the rights surrendered by the States to the paramount power will return to the States. Political arrangements between the States on the one side and the British Crown and British India on the other will thus be brought to an end. The void will have to be filled either by States entering into a federal relationship with the successor Government or Governments in British India, or failing this, entering into particular political arrangements with it or them."
The Cabinet Mission, however, however, advised the rulers of the native States to enter into negotiations with the successor Government or Governments and evolve a scheme of the precise form which their cooperation would take. On 20-2-1947, the British Government made an announcement that independence would be granted to British India. This was followed by another statement on 3-6-1947 setting out its plan for the transfer of power. The plan inter alia provided that the Muslim majority areas in British India should constitute the dominion of Pakistan and the Hindu majority areas in British India the dominion of India. In this plan the position of the princely States was dealt with in the following manner:
"His Majesty's Government wish to make it clear that the decisions announced above (about partition) relate only to British India and that their policy towards Indian States contained in the Cabinet Mission Memorandum of 12-5-1946, (Cmd. 6835) remains unchanged."
Thus, it would be seen that on the withdrawal of paramountcy the princely States were to become independent and the communal basis of division of British India was not to apply ipso facto to the States. Neither the Cabinet Mission nor the British Government made any positive suggestions regarding the future of the princely States. The only thing that was made clear was that the sovereignty was to revert to the rulers of these native States. Lord Mountbatten, as the Crown representative addressed the Chamber of Princes on 25-7-1947. He advised the princes and their representatives that although legally they had become independent, they should accede to one or the other dominion, keeping in mind the geographical contiguity of their States. (Keesing's Contemporary Archives, 9/16-8-1947, p. 8765). Lord Mountbatten told the Chamber of Princes that accession of the State to either of the dominions was to be under the Cabinet Mission Memorandum of 16-5-1947 which contemplated surrender to the dominion of three subjects, namely, defence, external affairs and communications. Lord Mountbatten caused to be circulated for discussion a Draft Instrument of Accession which explicitly provided for surrender to the appropriate dominion the power over the three specified subjects and stated that the dominion would have no authority over the internal autonomy of the State. 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. 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. The decision whether to accede or not and to which dominion were in the exclusive right and discretion of the Ruler.
On 15-8-1947, India became independent. In accordance with the Cabinet Mission plan of May 1946 following the creation of the dominions of India and Pakistan, Kashmir bordering on both India and Pakistan had, like any other native State, three alternatives, viz., to assert complete independence, to accede to Pakistan or to accede to India. Power to take the decision vested exclusively in the ruler according to the British Government's declared policy.
The Quit India Movement in British India had its echo in Kashmir where the National Conference had launched "Quit Kashmir Movement" with renewed vigour from 28-6-1938 demanding that Maharaja Hari Singh should quit the State bag and baggage and leave the people of the State to decide their own future by having a responsible Government. It gained even more momentum in 1944. The Maharaja's Government made efforts to crush the "Quit Kashmir Movement". Arrests of the political leaders followed. On 15-8-1947 most of the leaders of the National Conference and the Muslim Conference were in prison. The movement, however, did not die. In the absence of British help which the Maharaja was hitherto getting, the Maharaja found himself in a tight corner. "He disliked the idea of becoming a part of India, which was being democratised or of Pakistan which was a Muslim State. He thought of independence." (Brown, W.N., The United States and India and Pakistan, Cambridge 1953, p. 162). He was procrastinating and wanted time to take his own decision. He therefore 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.
No standstill agreement came to be concluded between Kashmir and India though the Foreign Secretary to the Government of Pakistan on 15-8-1947 indicated to the Maharaja that the Government of Pakistan was agreeable to have a standstill agreement with the Government of Jammu and Kashmir. It was followed by the visit of Private Secretary to Mr Jinnah to Srinagar 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. Mahajan, M.C., Accession of Kashmir to India (The Inside Story), Sholapur, p. 2 In the second week of August, however, there occured a Poonch revolt, against the authority of the Maharaja. The State Government found that the revolt in Poonch was due to infiltration from Pakistan but the charge was refuted by Pakistan Government. On the other hand Pakistan Government charged the Government of Jammu and Kashmir with attacking Muslim villages in the State. (White papers on Jammu and Kashmir, New Delhi, 1948, Documents, Part 1, pp. 6-13). At the same time there started an economic blockade from Pakistan. The Government of Pakistan did not unequivocally deny the charge of economic blockade but pleaded "special circumstances" and difficulties in sending supplies to the State due to reluctance of the drivers of lorries to carry the supplies between Rawalpindi and Kohala. While the Pakistan Government was pleading "special circumstances", Dawn, the Muslim League's official organ, wrote on 24-8-1947, "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 would inevitably ensue". This threat alarmed the Maharaja of Kashmir. Looking to the upsurge in the State, Sheikh Abdullah was released on 29-9-1947. On 20-10-1947, a large column of several thousand tribesmen armed with "bren guns, machine guns, mortars and flame throwers" attacked the frontiers of the State of Jammu & Kashmir. "Srinagar trembled before the danger of the tribesmen's invasion." It was alleged that the tribesmen were being aided by Pakistan. Margaret Bourke White in her work Halfway to Freedom. p. 208, wrote:
"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."
The tribal invasion caused grave devastation in the State. The indecision of Maharaja Hari Singh gave place to deep-seated alarm and to a genuine concern for his personal safety. On 25-10-1947, the Maharaja appointed Sheikh Abdullah as the emergency administrator. The raiders were fast approaching Srinagar, destroying and looting whatever came their way. The State was in imminent peril. Sheikh Abdullah advised the Maharaja that if the State was to be saved, he must accede to India and ask for immediate military help. This advice paved the way for accession of Jammu & Kashmir to India. Maharaja also found no other alternative and he addressed a letter to Lord Mountbatten, the Governor General of India stating:
"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 giving an account of the tribal invasion, the letter continued:
"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."
Attached to the letter was an 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 Ji Jammu Kashmir Naresh Tatha Tibet adi Deshadhipathi Ruler of Jammu and Kashmir 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 Ninteen 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. It bound the State of Jammu and Kashmir and India together legally and constitutionally. The execution of the Instrument of Accession by the Maharaja and its acceptance by the 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 DO letter to Maharaja Hari Singh in reply to his letter which had accompanied the Instrument of Accession but was not a 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 a controversial feature of Kashmir's accession to India. Critics of the accession have steadfastly maintained that this stipulation renders the accession conditional and that the question of States's accession has to be settled by a reference to the people of the State. The criticism, however, appears to be born out of ignorance of the correct legal position.
The only documents relevant to the accession were the Instrument of Accession and the Indian Independence Act and both the constitutional documents did not contemplate any conditions and therefore there was no question of the accession being conditional. The finality which is statutory cannot be made contingent on conditions imposed outside the powers of the statute. Pakistan, however, to suit itself, refused to recognise the accession. It called the accession as an act of "cowardly ruler" engineered with the 'aggressive' help of the Indian Government. It charged that the accession had been obtained by force. Alan Campbell Johnson in his treatise 'Mission with Mountbatten' writes: "Indeed, the State's Ministry, under Patel's direction, went out of its way to take no action which could be interpreted as forcing Kashmir's hand and to give assurances that accession to Pakistan would not be taken amiss by India." On his return to London, Lord Mountbatten narrated:
"Had he (the Maharaja of Kashmir) acceded to Pakistan before August 14, the future Government of India had allowed me to give His Highness an assurance that no objection whatever would be raised by them."Ø
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 from across the borders. When at his meeting with Lord Mountbatten on 1-11-1947 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."
The accession of the State of Jammu and Kashmir to India imposed an obligation on the dominion of India to defend the State. To drive the invader out of the State was the task which the dominion of India was asked to face as soon as it finally accepted the Instrument of Accession. The requests and warnings of Government of India to the Government of Pakistan to deny assistance and bases to the invaders met with no response. India, therefore, decided to lodge a complaint with the Security Council.
India invoked Article 35 of the Charter of United Nations and complained to the Security Council against Pakistan. Under Article 35, a member is entitled to bring before the Security Council a 'situation' which imperils international peace. The Government of India appealed to the Security Council, to ask the Government of Pakistan:
(1) to prevent Pakistan Government personnel, military and civil, participating in or assisting the invasion of Jammu and Kashmir State;
(2) to call upon other Pakistani nationals to desist from taking any part in the fighting in Jammu and Kashmir State;
(3) to deny to the invaders:
(a) accesses to and use of its territory for operations against Kashmir;
(b) military and other supplies;
(c) all kinds of aid that might tend to prolong the present struggle.
(Security Council Document No. S/628 dated 2-1-1948.)
On 15-1-1948, there was delivered to the Secretary General of the Security Council a letter from Pakistan Government emphatically rejecting the Indian charges. The letter made counter charges against India. Those amongst others included:
(1) a persistent attempt to undo the partition scheme;
(2) a preplanned and extensive campaign of genocide against the Muslims in East Punjab and Punjab princely States;
(3) the acquisition of Kashmir's accession by fraud and violence.
(Security Council Document No. S/646 dated 15-1-1948)
Throughout the prolonged deliberations of the Council, India's spokesmen concentrated their attention almost exclusively on the tribal invasion and the legal fact of Kashmir's accession to India. This was, indeed, the limited issue referred to the United Nations. Indian spokesman concluded his opening statement by declaring:
"We have referred to the Security Council a simple and straightforward issue ... the withdrawal and expulsion of the raiders and the invaders from the soil of Kashmir and the immediate stoppage of the fight are ... the first and the only tasks to which we have to address ourselves."
(Security Council Verbatim Report No. S/P.V. 227 dated 15-1-1948)
The Security Council, in accepting India's complaint did indirectly recognise the accession of the State of Jammu and Kashmir to India and indeed the legality of the accession was not the point which India had brought before the Security Council. It is important to note that the question of aggression alone fell within the competence of the Security Council. The Indian spokesman's statement was followed by a brilliant address by Sir Mohammed Zafarullah Khan of Pakistan who with his brilliant eloquence 'broadened' the issue and sought to bring various disputes between India and Pakistan together. Frankly speaking it was at this stage that the 'aggressor' and 'victim of agression' were put on a par in the Security Council. The result of these deliberations at the floor of the Security Council was the resolution dated 17-1-1948 which both India and Pakistan accepted. In this resolution the Security Council called upon India and Pakistan 'to immediately take all measures within their power (including public appeals to their people) calculated to improve the situation and to refrain from making any statements and from doing or causing to be done or permitting any acts which might aggravate the situation...." (Security Council Document No. S/651 dated 17-1-1948.)
On 27-1-1948, India and Pakistan submitted draft proposals to the President of the Security Council on the appropriate methods of solving the Kashmir dispute. It was in this proposal that India agreed to the holding of a plebiscite in Kashmir as the ultimate determinant of Kashmir's status. The Indian representative observed on the floor of the Council:
"In accepting the accession they (India) refused to take advantage of the immediate peril in which the State found itself and informed the ruler that the accession should finally be settled by plebiscite as soon as peace has been restored."
It is this statement which has been used to raise some doubts abut the finality of the accession till the holding of plebiscite (self-determination) in the State of Jammu & Kashmir.
The accession of Kashmir was an issue arising out of the partition of India and the negotiations preceding it. It does not appear to be within the competence of the Security Council to reopen this question either at the instance of India or of Pakistan. The question of 'aggression' alone falls within the competence of the Security Council. Though that is the strict standpoint from the legal angle, has the right of "self-determination" not been exercised by the people of the State? It is well known in International Law that "self-determination" can be achieved through different modes - the basic idea being to ascertain the wishes of the people.
The idea of convening a Constituent Assembly for Jammu and Kashmir State was conceived during the "Quit Kashmir Movement" even before the partition of India was contemplated and would have been implemented but for the invasion of the State, after the partition of India, by the tribesmen from across the Pakistan territory. When in 1948, the National Conference formed an interim Government in the State under the proclamation of Sir Hari Singh dated 5-3-1948, it was expressly declared in paragraph 4 of the proclamation that, "as soon as normal conditions were restored, steps would be taken to convene a National Assembly based upon adult suffrage, to frame a Constitution for the State". The convening of the Constituent Assembly in 1951 was, thus, a natural outcome of the desire of the people of the State to have a democratic Government responsible to the legislature, elected by the people. The Constituent Assembly was invested with the authority to frame the Constitution for the State and to decide its future.
"Today is our day of destiny. A day which comes only once in the life of a nation ... after centuries we have reached the harbour of our freedom which for the first time in history will enable the people of Jammu & Kashmir, whose duly elected representatives are gathered here, to shape the future of their country after wise deliberation and mould their future organs of the Government. No person and no power can stand between them and the fulfilment of this their historic task..."
declared Sheikh Mohammed Abdullah in his inaugural address to the Constituent Assembly and added that the Assembly shall give "its reasoned conclusions regarding accession". The dispute regarding Kashmir had come to a standstill at the U.N.O. The Constituent Assembly in Kashmir, comprising of the representatives of the people, elected on the basis of adult suffrage, in order to end the uncertainty about the future of the State, after due deliberations end consideration, ratified the State's accession to India in 1954, through a resolution pased by the Constituent Assembly without even a single dissent.
Thus, the Constituent Assembly of the Jammu & Kashmir State which was convened on the basis of adult suffrage comprising of the representatives of the people of the State and which represented the people of the entire State in unequivocal terms ratified the State's accession to India, through a well-considered resolution of the Constituent Assembly on 15-2-1954, after great deal of debate, discussion and consideration. The debate was free and frank. The people of the State of Jammu & Kashmir, thus, finally settled the controversy regarding accession through the Constituent Assembly comprising of their elected representatives. No one, even the worst critic, has ever doubted the representative nature of the Constituent Assembly. Self-determination is a one-time slot - the people of the State through their elected representatives in the Constituent Assembly of the State took a final decision and, therefore, the question of any further "self-determination" or 'plebiscite' does not arise either legally or morally. The 'wishes' of the people of J&K have been duly ascertained through the duly elected Constituent Assembly. The States' accession to India, therefore cannot any longer be questioned or doubted. The 1954 resolution of the Constituent Assembly was followed by incorporation of Section 3 in the Constitution of Jammu and Kashmir which reads: "The State of Jammu and Kashmir is and shall be an integral part of the Union of India." This section is in confirmation and reiteration of the wishes of the people of the State to be an integral part of the Union of India. Besides, Section 3, declaring the State as an integral part of India, has been put beyond the powers of the State Legislature to amend by virtue of the mandate of Section 147 of the Constitution. This provision was apparently incorporated in order to "avoid any fissiparous tendencies raising their ugly heads in the future".
Thus, it follows that the accession of Jammu and Kashmir to the Union of India is legal and constitutional which has been 'ratified' by the people of the State also. It is therefore complete, final, legal and irrevocable. The sovereign British Parliament vested the power to sign the Instrument of Accession in the ruler in his own discretion under the Indian Independence Act, 1947 read with the Government of India Act, 1935. Its acceptance was within the power of the Governor-General. The Instrument of Accession of Jammu and Kashmir was signed by the ruler and accepted by the Governor-General of India. As per the assurance given to the Security Council, the question of accession has been finally set at rest by the people of the State through their elected representatives in 1954 and 1957. If the accession of Kashmir has to be reopened, the same reopening would imply going back 46 years and reopening the whole question of the independence of India and Pakistan, for it was the same statute as provided for the accession of the princely States to either of the dominions which also granted independence to India and Pakistan.
It is interesting to note that the accession of Kashmir to India is quite analogous to the annexation of Texas by the United States of America. 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. The independent status of Texas was recognised by the United States of America 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 United States of America to annex the State. This proposal was sanctioned by the American Congress in a joint resolution in March 1845. After this sanction, America sent an army to defend the western frontiers of Texas. The Government of Mexico strongly protested against and alleged violation of the rights of Mexico and even the diplomatic intercourse between the two Governments was suspended. The Mexican protest evoked the following reply from the Government of the United States of America:
"The Government of United States did not consider this joint resolution as a violation of any of the rights of Mexico, or that it offered any just cause or offence to its Government; that the Republic of Texas as an independent power, owing no allegiance to Mexico, and constituting no part of her territory or rightful sovereignty and jurisdiction."
In Texas case it has never been contended that the annexation was not valid nor was the action of the United States to send an army to defend the western frontiers of Texas ever questioned. The case of accession of Kashmir stands at a much stronger footing than that of Texas and the criticism regarding the validity of the accession of Jammu and Kashmir to India is wholly meaningless and unsustainable - the accession of the State of Jammu and Kashmir to India is legal, final, binding and irrevocable.