Part 1: Kashmir's accession to India.

 The Kashmir story: 

Part 1: Kashmir's accession to India.

August 5, 2019.

The Indian Parliament voted overwhelmingly in favour of scrapping Article 370 on August 5, 2019.

With this, the BJP fulfilled its long made promise to the people of India.

Through this 3 series article, an attempt is being made to present the real picture in Jammu and Kashmir and how the Article 370 was an obstacle in truly integrating J&K with the rest of the country.

The present:

After the abrogation of Article 370 and reorganisation of the Indian State of Jammu and Kashmir (J&K), a China-Pakistan tandem has emerged to internationalise the issue, including in the UN Security Council.

Pakistan has feigned solidarity with the people of Kashmir and continues to train and fund separatists and terrorists. 

The Financial Action Task Force (FATF), the global watchdog that monitors terror financing, has retained Pakistan on its ‘Grey List’ for a good reason. 

China’s support for Pakistan is motivated by a desire to perpetuate its own territorial grab in the trans-Karakoram Shaksgam Tract of Kashmir.

China treats the J&K issue as a “bilateral dispute left over from history” to be resolved between India and Pakistan. 

It has turned a blind eye to the constitutional shenanigans by which Pakistan’s so-called federal Ministry of Kashmir Affairs and Gilgit-Baltistan has acquired complete sway over Pakistan Occupied Kashmir (PoK). 

It ignores Pakistan’s agenda of integrating Gilgit-Baltistan as its fifth province. Yet, China has the temerity to question the establishment of the Union Territory of Ladakh and to term it a ‘unilateral’ attempt to change “the status quo in the Kashmir region”. 

China has no locus standi to comment on India’s internal affairs since the erstwhile princely State of J&K acceded to India through the Instrument of Accession on October 26, 1947.

Brief History

During British Rule, the map of India consisted of territories that came directly under the Crown, and also 565 Princely States, which, while not being part of the British empire, were tied to it in a system of subsidiary alliances. 

The Princely States had control over their internal affairs, but control over defence and external affairs rested in the hands of the British Government, under the Viceroy of India. 

In addition, there were several colonial enclaves controlled by France and Portugal. 

The Government of India Act, 1935, introduced the concept of the Instrument of Accession, wherein, a ruler of a Princely State could accede his kingdom into the ‘Federation of India’.

Between May 1947 and the transfer of power on August 15, 1947, the vast majority of States signed Instruments of Accession. This was facilitated arguing that as paramountancy “came into being as a fact and not by agreement,” it would necessarily pass to the Government of independent India, as the successor of the British.

A few, however, held out. Amongst them were Hyderabad and Kashmir, which declared that they wanted to remain independent. 

Hyderabad had a Muslim Ruler and Muslim nobility in an overwhelming Hindu majority State. After “Operation Polo,” an Indian military action to restore order in the State, Hyderabad acceded to India and was absorbed into the Union. 

The State of J&K, however, posed a challenge of an altogether different nature.

1947: The Situation in J&K at the time of the transfer of power, the State of J&K was ruled by Maharaja Hari Singh, who had announced his intent to remain independent. 

Sheikh Abdullah, the leader of Kashmir’s largest political party, the National Conference, was opposed to Hari Singh’s Rule and was vociferously demanding his abdication from the throne and power to the people. 

Pakistan, in the meantime, tried to force the hand of the Maharaja and sent in tribals, assisted by the Pakistan Army, to annex the Kashmir by force. 

Being confronted by a militarily hopeless situation, the Maharaja sought India’s help to push back the invaders. India told him to  sign the Instrument of Accession in return. The Indian Army was airlifted to Srinagar and the raiders were halted a few miles from the city. Then, in a series of heroic actions, the Indian Army pushed back the Pakistan Army assisted tribals till world powers intervened and forced a ceasefire. 

• When the Constitution of India came into force on January 26, 1950, special provisions were made for the State of J&K, in the form of Article 370 of Constitution of India, which was a temporary provision and remained so till August 5, 2019. 

• It was a sort of carrot dangled to the Kashmir rulers to accede to stay with India.

• Article 35-A was another provision incorporated in the Constitution of India giving the Jammu & Kashmir Legislature a carte blanche to decide who all are "permanent residents" of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. 

• The provision mandated that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

• Article 370 was drafted by Sheikh Abdullah. He was appointed as Prime Minister of Jammu and Kashmir, by HH Hari Singh, and Pt. Jawahar Lal Nehru. 

At the time when the Constitution of India was being drafted, for all the laws apart from communication, foreign affairs, finance and defence, the Parliament of India depended upon the consensus of the State Government. 

Kashmir's accession

In 1947, when Maharaja Hari Singh declared Jammu and Kashmir independent, Pakistan immediately launched a non – official war to free the region from Hindu rule, in which there were majority of Muslims. Soon after, Maharaja Hari Singh realised that he was unable to protect the state, when he asked Indian government for help. 

The Indian government was ready to aid but with the condition that Kashmir would accede to India. The Maharaja agreed upon the same and the Indian government and the Maharaja signed the accession treaty (“the Instrument”) on October 26, 1947.

The Clause 5 of the accession treaty stated that it could not be altered without the state’s consent. Clause 7 specifically protected the state’s right to ratify the application of any future constitution of India in its territory. It read as:

“Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.”

Deceitful Incorporation of Article 35-A

Article 35-A was incorporated in the Constitution of India in 1954 by an order of the then President of India Dr. Rajendra Prasad on the advice of Pt. Jawahar Lal Nehru Cabinet. 

The controversial Constitutional (Application to Jammu and Kashmir) Order, 1954 followed the 1952 Delhi Agreement entered into between Pt. Jawahar Lal Nehru, the first Prime Minister of India and the then Prime Minister of Jammu & Kashmir Sheikh Mohammad Abdullah, which extended citizenship to the "State Subjects" of Jammu & Kashmir. So Article 35-A was added to the Constitution of India as a testimony of the special consideration to the Indian Government accorded to the "permanent residents" of Jammu & Kashmir. 

The Parliamentary route of law making was bypassed when the President of India incorporated Article 35-A into the Constitution of India. 

Article 35-A is a rarest example of invisible State meddling with the Constitution of India where it has no constitutional mandate. 

Article 35A was neither a part of the draft Constitution nor a part of the adopted and enacted Constitution of India. 

This Article was added to the fundamental rights of the Constitution by a Presidential Order, viz., Constitutional (Application to Jammu and Kashmir) Order 1954 which extended the application of various provisions of the Constitution of India to Jammu & Kashmir with such modifications, exceptions and alterations with the concurrence of the Government of the State. 

Article 368 of Constitution of India was also extended in its application to the State but with a proviso to the effect that “no such amendment shall have effect in relation to the State of Jammu & Kashmir unless applied by order of the President under clause (1) of Article 370 of “Constitution of India”. 

Be that as it may, from the reading of this provision it cannot be construed that the President of India was empowered to exercise the constituent power of the Parliament under Article 368 of Constitution of India to add any provision in the fundamental rights part in its relation to the State of Jammu Kashmir.

The CO 1954, which superseded Constitution (Application to Jammu and Kashmir) Order 1950 of 26 January 1950, was issued under the permissible limits of Article 370 of Constitution of India - a temporary constitutional provision relating to the State of Jammu Kashmir. 

Article 370 of Constitution of India authorized the President of India to extend the provisions of the Constitution of India in its relation to the State of Jammu & Kashmir as the President may by order specify. 

Article 370 (1) of Constitution of India enjoined four clauses, viz., clauses (a), (b), (c) and (d). 

Article 370 (1) (a) of Constitution of India read as: “Notwithstanding standing anything in this Constitution, the provisions of Article 238 of Constitution of India shall not apply in relation to the State of Jammu and Kashmir”; 

Article 370 (b) of Constitution of India read as: “ the power of Parliament to make laws for the said State shall be limited to (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for the State”; and (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify; 

Article 370 (1) (c) read: “the provisions of Article 1 and of this Article 370 shall apply in relation to that State”. 

Article 370(1)(d) of Constitution of India read: “such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: 

Provided, that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-section (b) shall be issued except in consultation with the Government of the State; 

Provided further, that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government”. 

British politics:

The process of partitioning British India was governed by the 1947 Indian Independence Act

• Princely states were not directly incorporated in either dominion, and section 7(1)(b) of the Act provided that “suzerainty of His Majesty” over these states had lapsed and its powers had been returned back to them. 

• They were theoretically granted the option to stay independent or accede to either dominion. 

• Independence was not a real option for the princely states, many of which were quite small. The states were encouraged by then -Viceroy,  Lord Mountbatten to accede to one dominion or the other” and did so based on their geographical position, religious identity, or other factors. 

• The ruler of Kashmir, Maharaja Hari Singh, was wavering between acceding to either dominion and choosing to remain independent and neutral at the time.

• Maharaja Hari Singh in Kashmir inherited a unique conundrum: he was a Hindu, but held dominion over a Muslim majority. In addition, his was the only princely state bordering both India and the newly born Pakistan, giving rise to the possibility of accession to either nation. 

• Further complicating the already tense birth of two nations was Maharaja Hari Singh’s open discussion of an independent Kashmir, which only served to confuse and delay the question of the state’s accession.

• Describing the situation then prevailing in Kashmir, Amit Schandillia has tweeted:

• India's independence was messy. We know that because stories of Partition and ensuing violence is common knowledge. What isn't known is how messy it was for Hari Singh's principality. In the lead-up to the independence, all princely states were given the option to pick sides.

• They were urged to accede. Either with Pakistan or with India. Hari Singh, like the Nizam of Hyderabad, wanted neither. In choosing autonomy he was grossly miscalculating his military as well as diplomatic vulnerabilities, a lesson he would soon learn the hard way.

• In the spring of 1947, inspired by fresh Islamic nationalism Poonch rebelled against the Maharaja's punitive tax regime. The rebellion succeeded and inspired similar uprisings in Mirpur and Muzaffarabad. The 3 districts eventually came together as a new entity.

• This new entity called itself Azad Kashmir and when the question of accession arose, expressed an intent to join Pakistan. Similar sentiments were reflected in Gilgit and Baltistan. Although these wishes were never granted on the map, Hari Singh's monarchy was unraveling.

• So here's how things stood in the year of independence: Hari Singh stayed sovereign. Azad Kashmir and Gilgit-Baltistan remained parts of Kashmir on the map but independent otherwise. And Jinnah dissatisfied with not having Kashmir.

(Unquote)

After an uprising against in Poonch and an invasion by the Pakistan Army in the guise of Pathan tribal militia, Maharaja Hari Singh decided to turn to India for military assistance and executed an Instrument of Accession to India. The accession was executed with the expectation that a plebiscite or referendum would be conducted to determine the final status of the state.

• Eventually, regular Pakistani troops became involved and a direct conflict between the two new countries arose until a UN-brokered ceasefire was signed on January 1, 1949. Later that same year a ceasefire line (LOC) was agreed upon. 

• The northern and western part of the former princely state was administered by Pakistan as Azad Kashmir and the Northern Areas (now known as Gilgit-Baltistan), while the state of Jammu and Kashmir acceded to India. 

• In 1965, Pakistan and India went through a second war over the status of Jammu and Kashmir, but by the end of that conflict the status quo 1949 ceasefire line was maintained. 

• Terms for a plebiscite promised at the time of accession could not be agreed to by either side and, by 1954, India dropped the option for a plebiscite.

[End of Part 1]

@ Dayanand Nene

(With media inputs)