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Himalayan transition

April 02, 2002

The Statesman

Himalayan transition
By Adarsh Sein Anand

In this first of a three-part series ADARSH SEIN ANAND provides a historical and legal perspective to Jammu and Kashmir's accession to India

Geographically, the state of Jammu and Kashmir, pre-October 1947, fell into four natural regions. In the south lies Jammu, the winter capital; in the centre is the valley of Kashmir which contains the summer capital, Srinagar; to the north is Gilgit and between Kashmir Valley and Tibet is the province of Ladakh. The state covered an area of 84,471 square miles and included Gilgit, areas in Pakistan-occupied Kashmir, Kashmir Valley, Ladakh and Jammu. At present, almost 50 per cent of the area is not under the control of the Jammu and Kashmir government it is under occupation of Pakistan or China.

The Indian native states, of which Jammu and Kashmir was one such state, had a hereditary ruler who, subject to the paramountcy of the British Crown, exercised, with some exceptions, unlimited power over the states ruled by them. The rulers of the native states were sovereigns subject to the paramountcy of the British Crown. The aftermath of World War II 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, on 19 February 1946 announced 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 the "Cabinet Mission", arrived in India on 23 march 1946. On 25 May 1946, it circulated a memorandum dated 12 May 1946 in regard to suggestions regard to the native states. In its memorandum, the Mission affirmed that on the withdrawal of the British government from India, it would no longer be possible for the, rights of the states which flowed from their relationship with the Crown 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 were created.

The Cabinet Mission, 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 of their relationship. On 20 February 1947, the British government announced that independence would be granted to British India. This was followed by another statement on 3 June 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 factoto the states. Neither the Cabinet Mission nor the British government made any positive suggestions regarding the future of the princely states.

Lord Mountbatten, as the Crown representative, addressed the Chamber of Princes on 25 July 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. (Keeping'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 May 1947, which contemplated surrender to the dominion of three subjects, namely defence, external affairs, and communications.

He also 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. 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 on whether to accede or not and to which dominion were in the exclusive right and discretion of the ruler. 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.

On 15 August 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: 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 governments declared policy.

In Kashmir, the National Conference had launched a "Quit Kashmir Movement" with renewed vigour from 28 June 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 more momentum in 1944. The Maharaja's government made efforts to crush the "Quit Kashmir Movement" and the arrests of political leaders followed.

On 15 August 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, Hari Singh 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 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 August 1947 indicated to the Maharaja that the government of Pakistan was agreeable to have a standstill agreement with the government of Jammu and Kashmir. This was followed by the visit of Mr. Jinnah's private secretary 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 (77ie Inside Story), Sholapur, p. 2.)

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 lorry drivers' reluctance to carry these supplies between Rawalpindi and Kohala. While the Pakistan government was pleading "special circumstance"',Dawn, the Muslim League's official organ, wrote on 24 August 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 Maharaja of Kashmir. Looking to the upsurge in the state, Sheikh Abdullah, who was in jail was released on 29 September 1947. On 20 October 1947, a column of several thousand tribesmen armed with "bren guns, machine guns, mortars and flame throwers" attacked the frontiers of the state of Jammu and Kashmir. "Srinagar trembled before the danger of the tribesmen's invasion."

The tribal invasion caused grave devastation in the state. Maharaja Hari Singh's indecision gave place, to deep-seated alarm and to a genuine concern for his personal safety. On 25 October 1947, the Maharaja appointed Sheikh Abdullah as the emergency administrator. The raiders were fast approaching Srinagar, destroying and looting whatever came their way, and 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 advise paved the way for the accession of Jammu and Kashmir to India. Hari Singh also found no other alternative and he addressed a letter to Lord Mountbatten, the Governor-Generat 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 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 interest 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."

To be concluded

(The author is former Chief Justice of India)

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