Situated at the apex of the Indo – Pakistan sub-continent, Jammu and Kashmir are of great strategic importance because to its east lie Tibet; to the northeast, Sinkiang provinces of China; to north-west Afghanistan and a few miles from Afghanistan lies Russian Turkestan; to its west lies Pakistan and its south lies India.
Ever since the emergence of the two independent states of India and Pakistan in the Indo- Pakistan continent on Aug. 15, 1947, Jammu and Kashmir has figured as the most critical problems in the relations between them. The issue of Kashmir arises out of its accession to India. In this write up an attempt is made to put in perspective the events leading to Kashmir’s accession to India and the validity in the law of that accession.
The state of Jammu and Kashmir as it exists today was created by the British in 1846. To further ‘weaken the Sikh’s after their defeat at Sobraon, the British government separated Kashmir from the Sikh empire and ‘sold’ it to Raja Gulab Singh, ruler of Jammu. The treaty of Amritsar -notoriously referred to in Kashmir as the sale deed of Kashmir- the British government made over to Raja Gulab Singh and the heirs male of his body forever and in independent possession, the state of Jammu and Kashmir for a consideration of 75 lakhs of British Indian rupees.
Gulab Singh’s Dogra dynasty ruled Kashmir till 1947, till the attack by Pathan tribesmen, which was masterminded by the Pakistan army and led by its senior officer Akbar Khan. The British had succeeded in forging an uneasy peace with the tribes of the North-West Frontier but after the British withdrew, Pakistan incited the tribesmen into launching their attack. By Oct. 1947, about 5,000 tribesmen had entered Kashmir.
The tribesmen transited through Pakistan carrying modern military gear. The first standoff was at Muzaffarabad where they faced a battalion of Dogra troops, capturing the bridge between Muzaffarabad and Domel, which itself fell to the attackers the same day. Over the next two days, they took Garhi and Chinari. The main group of attackers then proceeded further towards Uri.
Battle of Uri
At Uri, Brigadier Rajinder Singh, who led J&K state forces, was killed. “He and his colleagues will live in history like the gallant Leonidas. The battle at Uri holds significance in accession history as it likely helped Maharaja Hari Singh avoided capture and bought the Indian government valuable time to bring in more forces. After the battle, the tribesmen invaders travelled down the Jhelum River to Baramulla, the entry point into the Kashmir Valley.
On October 24, the Maharaja made an urgent appeal to the Indian government. He waited for a response, while the Cabinet’s defence committee met in Delhi. V. P. Menon, administrative head and secretary of the state’s department, was instructed to fly to Srinagar on October 25. Menon’s priority was to get the Maharaja and his family out of Srinagar. There were no forces left to guard the capital and the invaders were at the door. The ruler left the Valley by road for Jammu.
On October 26, after a Cabinet defence committee meeting, the government decided to fly two companies of troops to Srinagar. Menon himself took a plane to Jammu where the ruler was stationed.
Governor-general Mountbatten had contended it would be the 'height of folly' to send troops to a neutral state without an accession is completed, "but that it should only be temporary before a referendum." Neither Nehru nor Sardar Patel attached any importance to the “temporary” clause, but Menon was carrying a message for the ruler: he had to join the Union if he wanted to ward off the invasion. The ruler agreed to accede.
In fact, according to Menon’s memoirs, he had left word with an aide that if Menon did not return with an offer, he was to shoot the ruler in his sleep. Hari Singh signed the Accession letter regretting that the invasion had left him with no time to decide what was in the best interest of his state, to stay independent or merge with India or Pakistan. Mountbatten while accepting the request for Accession, mentioned that referendum would be held in the state when the law-and-order situation is restored.
Sheikh Abdullah took charge of an emergency administration in Kashmir. Nehru appointed the former Kashmir Prime Minister N Gopalswamy Ayyangar as a cabinet minister to look after Kashmir affairs. Ayyangar was one of the chief architects of Article 370.
The article allowed the state a certain amount of autonomy - its own constitution, a separate flag and freedom to make laws. Foreign affairs defence and communications remained the preserve of the central government.
As a result, Jammu and Kashmir could make its own rules relating to permanent residency, ownership of property and fundamental rights. It could also bar Indians from outside the state from purchasing property or settling there. The constitutional provision has underpinned India's often fraught relationship with Kashmir, the only Muslim-majority region to join India at partition.
The Instrument of Accession is a legal document executed by Maharaja on October 27, 1947. By executing this document under the provisions of the Indian Independence Act 1947, he agreed to accede to the Dominion of India.
The Bharatiya Janata Party had from the inception long opposed Article 370 and revoking it was its political agenda and in the party's 2019 election manifesto, it was more specifically promised to the voters.
They argued it needed to be scrapped to integrate Kashmir and put it on the same footing as the rest of India. After returning to power with a massive mandate in the April-May general elections, the government lost no time in acting on its pledge, and on August 5th,2019 by a Constitutional amendment the Article 370 was made inoperable and Article 35-A was scrapped and the State of Jammu & Kashmir was bifurcated into two Union Territories.
Mountbatten accepts Accession
In a letter sent to Maharaja Hari Singh on October 27, 1947, Lord Mountbatten accepted the accession with a remark, "it is my government’s wish that as soon as law and order have been restored in Jammu and Kashmir and her soil cleared of the invader the question of the State's accession should be settled by a reference to the people. Lord Mountbatten's remark and the offer made by the Government of India to conduct a plebiscite or referendum to determine the future status of Kashmir led to a dispute between India and Pakistan regarding the legality of the accession of Jammu and Kashmir. India claims that the accession is unconditional and final while Pakistan maintains that the accession is fraudulent.
The accession to India is celebrated on Accession Day, which is held annually on October 26.
The legal ruler Maharaja Hari Singh has explicitly mentioned that he is acceding to Indian Union.
“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 Inder Mahander Rajrajeswar Maharajadhiraj Shri Hari Singhji, 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 Dominion shall, by this my Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise about 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 hereafter referred to as "the Act,” read the document signed by him.
The document further stated: “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 this my Instrument of Accession. I accept the matters specified in the schedule hereto as the matters concerning which the Dominion Legislatures 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 about 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.”
Nothing in this Instrument shall empower the Dominion Legislature to make any law for this state authorizing the compulsory acquisition of land for any purpose, he agreed to provide facilities to the Indian government to exercise suzerainty over Jammu and Kashmir.
Accession empowers Indian Union
“I hereby undertake that should the Dominion for 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 the ruler of the state is to be construed as including to my heirs and successors,” read the document signed by Maharaja Hari Singh on Octo. 26, 1947
Some scholars have questioned the official date of the signing of the accession document by the Maharaja. They maintain that it was signed on October 27 rather than October 26. However, the fact that the Governor-General accepted the accession on October 27, the day the Indian troops were airlifted to Kashmir, is generally accepted. An Indian commentator, Prem Shankar Jha, has argued that the accession was signed by the Maharaja on October 25 1947, just before he left Srinagar for Jammu. Before taking any action on the Maharaja's request for help the Govt. of India decided to send Mr V.P. Menon, representing the Government of India who flew to Srinagar on the (25.10.1947). On realizing the emergency, V.P Menon advised the Maharaja to leave immediately to Jammu to be safe from invaders.
Pluralists, democratic heads needed to support the crown
The Maharaja did the same and left Srinagar for Jammu that very night (25.10.1947) while Menon and Mr Meher Chand Mahajan Prime Minister flew to Delhi early next morning. (26.10.1947). On reaching New Delhi, the Indian government assured Menon and Mahajan that they will militarily rescue Jammu and Kashmir State only after the signing of the accession instrument. Hence Menon flew back to Jammu immediately with the Instrument of Accession. On reaching Jammu he contacted the Maharaja who was in sleep at that time after a long journey. He woke up and at once signed the Instrument of Accession.
V.P Menon flew back immediately on October 26 to Delhi along with the legal documents, completing the proper and legal Accession of the state of Jammu and Kashmir with the Indian Union.
Since then, Jammu and Kashmir is a shining crown on the head of Bharat Mata or Indian Union. It is an utmost duty for every citizen to protect this crown, its pride and glory. The glory of Jammu and Kashmir is associated with the splendour of India. Neither, there should be any attempts to truncate this crown, nor there should be a venture to narrow the head of Bharat Mata. A pluralistic, democratic liberal, accommodating head of the Indian Union is best in the interests to support this crown.
(The Author is Senior Advocate, Supreme Court of India and; Distinguished Fellow USI, Chairman-Kashmir (Policy & Strategy) Group. He can be reached at: firstname.lastname@example.org)