J&K acceded to the Union of India when its Maharaja signed the Instrument of Accession on 26th October, 1947 in the presence of the then Secretary of the Union Shri V.P. Menon. India’s Governor-General Lord Mountbatten accepted the accession in the morning of 27th October, 1947. Indian Army was dispatched by the then available Dakota plane to Srinagar to resist the aggression from newly created Pakistan. The Instrument of Accession which Maharaja Hari Singh signed had same/similar language/performa which was signed by more than 550 rulers in other states in India.
The interesting part of the accession history of several states with the Union of India deserves to be noted with clear mind without bias. About 550 states whose rulers have signed a similar performa/Instrument of Accession as was signed by the ruler of J&K were merged into the Union except J&K. Baroda, a state ruled by Gaekwads acceded to the Union of India in 1948. This was merged with the Union of India. The argument against Maharaja Hari Singh that he was laid in signing the Instrument of Accession failed. The State of Hyderabad and Junagarh were merged into the Union of India even though their rulers never signed the Instrument of Accession.
Constitution of India was promulgated on 26th January, the Republic Day of India, 1950, about 556 states became integral part of the Union of India though their rulers were kept on some allowances/privy purses which were withdrawn later. The Constitution of India was born with a tumor in its womb, Article 370. Article 306 in the draft Constitution was introduced to keep J&K away from the status of all other states. Dr. Bhimrao Ambedkar, the Chairman of the Constituent Assembly insisted repeated against its inclusion in the Constitution of India. Mahatma Gandhi was no more on the scene. Had he been alive in 1949, the day this Article 306 was finalised as Article 370 in the Indian Constitution, Mahatma Gandhi would have never allowed such a blunder. It was Dr. Ambedkar resistance to the insertion of this Article in the Indian Constitution that it was finally decided by the Constituent Assembly to keep it aTemporary, Transitional and Special Provisions. People of J&K have been victim of this temporary provision. The political vested interests have been exploiting the people of the state in the name of this Article. No research work has been done by the thinkers club or the law makers on the three words and the reason of their insertion in this Article. The word, ‘temporary’ could not have met for 68 years. Transitional would never mean permanent and special means for the time being and the word, ‘special’ would have not continued for all the times. This situation needs to be studied and understood in the light of historical and political developments vis-à-vis J&K.
a). J&K was ruled by Dogra Rajput family and there was a movement of the residence of the Kashmir Valley against the Dogra rulers which they defined as ‘Quit Kashmir’ movement which was supported by Indian National Congress including Congress leader, Pt. Jawaharlal Nehru. Pt. Jawaharlal Nehru, the interim Prime Minister of India, in 1946 was detained during Maharaja Hari Singh rule which he tried to trespass into J&K from Rawalpindi via Kohala Bridge. He was arrested, detained and deported back to Delhi. Pt. Jawaharlal Nehru could not forget that episode.
b). There was a understanding between Pt. Jawaharlal Nehru and Congress leaders to grant separate state status to J&K for the reasons which need to be written separately and therefore Pt. Jawaharlal Nehru never wanted J&K to be treated at par with other states which were declared merged into the Union by November, 1949.
c). All the Maharajas/rulers/nawabs lost their status and the territories they governed became Union of India except J&K. Maharaja Hari Singh, though exile forcible and was staying in Bombay in exile was allowed to continue as a Monarch of J&K. It needs a deep study why Maharaja Hari Singh was allowed to continue as a Monarch when he was pushed out from J&K by Nehru-Abdullah combine and subjected to humiliation and insults. It was under the pressure of Nehru on the plea of Sheikh Abdullah that Sheikh Abdullah was installed as a Prime Minister of the State and Yuvraj Karan Singh, son of Maharaja Hari Singh appointed as the Regent of the state.Why J&K was not merged into the Union of India?
d). A so-called, parallel, Constituent Assembly of J&K was constituted under the signs and signatures of Yuvraj Karan Singh, representing his father the Monarch of the state in 1951, naturally with the consent and approval of the Constituent Assembly of India and its leaders. This Constituent Assembly was headed by Sheikh Mohd.Abdullah. This was justified by the Congress leaders that there was a necessity to create a mechanism to keep control/check on the powers of the Monarch who had signed the Instrument of Accession. The idea floated was that Monarch may create any undesirable situation for the Union. Maharaja’s integrity and credibility as nationalist was ignored. In 1931 during the Round Table Conference, it was the only ruler from the Indian States who dared the British Crown saying that, “I am Indian first and then a Maharaja”. Maharaja had many occasions to denounce the accession and several western powers had tried and failed to persuade the Maharaja. Maharaja’s secular credentials were also kept under shadow of doubt forgetting that it was the only ruler in the history of Indian states who at the time of his coronation in 1925 declared, “My religion as king is justice”. Both Pt. Nehru and Sheikh Abdullah were scared of Maharaja’s popularity and acceptability among the Muslims in J&K. Sheikh Abdullah was in a hurry to take over the reins of power. Sheikh Abdullah was prompted by the Anglo-American Bloc to take up the Dixon Plan for the creation of ‘Islamic Republic of Kashmir’. Pt. Jawaharlal Nehru had rejected the Dixon Plan. On 20th August, 1952, Sheikh Abdullah under the pressure of Anglo-American Bloc got a resolution asked in the so-called J&K Constituent Assembly abolishing the Monarchy. The Monarchy came to an end according to the law makers leaving several unanswered questions on the validity of the resolution which was never signed by the Regent himself. However, the special status of J&K came to an end and Article 370 turned infructuous. This was obvious from the fact that Article 370 expressly states that President of India may sign any law for the king of J&K only if the concurrence/consent is given by the Govt. of J&K created by virtue of the Maharaja’s Royal Decree dated March 5, 1948. Maharaja Hari Singh before leaving the state on exile had installed Sheikh Abdullah as a Prime Minister of J&K. When Maharaja/Monarchy was abolished the Royal Decree also came to an end. Secondly, Sheikh Abdullah, the Prime Minister installed by the Royal Decree was dismissed on the morning of 9th August, 1953 under the instructions/ directions of Pt. Jawaharlal Nehru himself and put in jail. It clearly supports the above mentioned argument that after 1953 there was no more a government created by the Royal Decree of the Maharaja. Therefore Article 370 was no longer in existence as neither there was any special status of J&K nor any legal support. It was transitional and meant only to contain the Maharaja.
e). Article 370 in its concluding provision stated that the President of India could bring any alteration, change or amendment in the Article. A proviso inserted added that such a change/amendment President of India shall do only after the recommendation of the Constituent Assembly of J&K.The Constituent Assembly of J&K came to an end on 26th January, 1957 the day the State Constitution was promulgated in J&K. The State Constitution in its Section 3 had clearly and without any reservation or ambiguity has stated, “Jammu and Kashmir is and shall be an integral part of the Union of India”.
This is most unfortunate that the High Court of J&K which has not declared itself as the High Court of Judicature nor any law maker/Parliament has considered this fact that why the High Court in J&K is not the High Court of Judicature as is the case with all the High Courts in the Union of India. Besides, the High Court of J&K has no jurisdiction or competence to give its opinion/verdict on the validity of any provision of the Constitution of India. Article 370 is part of Constitution of India and so is Article 35(A). Once Article 370 becomes redundant or infructuous or a dead letter, all other provisions including 35(A) become irrelevant.
Jammu and Kashmir acceded to the Union of India in accordance with the procedure laid down in the India’s Independence Act of British Parliament. The ruler was only competent authority who did accede to the Union. Article 370 was inserted only under the special reasons as a Monarchy was allowed to continue. Monarchy ended in J&K on the wishes of the Constituent Assembly of the state. Article 370 became infructuous in 1953.
68 years have passed when Maharaja Hari Singh signed the Accession. It is important to note that there is a dispute vis-à-vis J&K with Pakistan and China. Nearly 32,000 sq. miles of India’s territory (including Gilgit-Baltistan plus POK) is under illegal occupation of Pakistan and 22,000 sq. miles of India’s territory (Ladakh region) continues under illegal occupation of China. In 1994, Parliament of India under the leadership of the then Prime Minister, Shri Narasimha Rao in a unanimous resolution declared that there is a dispute with Pakistan as nearly 1/3rd of India’s territory is under the illegal occupation of Pakistan.
27th October, 1947 is a historic day for the citizens of India and particularly for the citizens of India residing in J&K, the day J&K acceded to the Union of India and J&K joined a secular, socialist republic with freedom and fundamental rights.
(Professor Bhim Singh is Sr. Advocate, Chief Patron of National Panthers Party)