It is unfair to plead that Jammu & Kashmir has not yet merged with Union of India after accession
Justice G D Sharma
On 25th September, 2013 while talking to European Delegation at Srinagar the then Chief Minister Mr Omar Abdullah of the coalition government of National Conference and Congress said, “State of J&K has only acceded to Union of India and not merged into it and that is why it has special status. We have our Constitution and State flag. These political issues of Kashmir are not born with the militancy which started in 1990. Their genesis is long back associated with the Partition of the country when the future of all States was decided other than J&K. Reluctance of separatists to join the dialogue was the major hurdle in Kashmir solution. There is need of sustained internal and external dialogue between the Centre and the separatists and the two neighbouring countries of India and Pakistan to solve the issue once for all. There are diverse views; one extremist view is for secession and the other extremist opinion is total merger.”
The statement on its face value is irrelevant and unwarranted. At the outset we have to understand the meaning of the term “Merger” having a bearing on the present controversy. Blacks’ Law Dictionary has defined statutory merger which means, “a merger provided by and conducted according to statutory requirements.” Mr Omar Abdullah has opined that Accession with India was only on four issues consisting of Currency, Communications, Foreign Affairs and Defence. Addition of the term currency is his own figment of imagination being non est in the list, as “prescribed instrument of Accession” was of uniform nature for all the Rulers of the Indian Princely States outside British India who wanted to accede to Indian Dominion by or after 15th August 1947. Mr Omar Abdullah in the second breadth has
prescribed a ready made formula to restore peace through the implementation of Interlocutor’s Report of 2011 wherein at page-6 it is recommended that, “Parliament will make no laws applicable to the State unless it relates to the country’s internal and external security and its vital economic interest, especially in the areas of energy and access to water resources. No doubt, going by the contents of the said Interlocutor’s Report of 2011, it is indubitably established that interlocutors appointed by the Central Government had caused serious drain to the public exchequer since they have done their duty in a casual and perfunctory manner because they were ignorant about the other two main fields of limbs of Instrument of Accession viz Foreign Affairs and Communications as well as the Ancillary matters. These matters were part and parcel of the prescribed formula of Instrument of Accession being inseparable and non negotiable. At the time of making Accession, there was no law in force throughout the country that an acceding Ruler at any point of time could order or include the demand of secession of his state. Maharaja Hari Singh of princely State of J&K was no exception as he was also included in that category on 26th of October 1947 and conditions continued to be so thereafter. No Ruler could make partial Accession or Cancel it once it was made. Furthermore, it is stated that no Article of Indian Constitution including Article 370 can be used for disintegration or secession purposes. Indirectly, Omar Abdullah has suggested that Article 370 exists in the Constitution for the sake of special
status or is a sign of Autonomy. Earlier to it also, about 3 years back (on October 6, 2010) Mr Omar Abdullah as Chief Minister had sung the song of the doctrine of “there having being no merger”.
The newly created controversy by Ex-Chief Minister of the State had hardly died down when unfortunately during the earlier parliamentary session of the year 2016 Hon’ble Member of Rajya Sabha Dr Karan Singh who happens to be the son of Maharaja Hari Singh and could be taken as a recognised eye witness of many historical events of the State gave oxygen to the
controversy in hand. Dr Singh stated in the Parliament that while all the other States subsequently merged, but J&K didn’t merge. J&K’s relationship with the rest of India is guided by Article 370 and the State Constitution that he signed into law. Such a
statement coming from his mouth has hurt any rationally considering mind as well as the feelings of every patriot citizen of India. To add fuel to the fire; he stated against all official records including the Constitution of J&K State itself that State of J&K had acceded on 27th of October, 1947 when the fact of the matter is that the State had acceded on 26th of October, 1947. This date finds a place in the Instrument of Accession made by Maharaja Hari Singh in the covering
letter addressed to the Viceroy of India Lord Mountbatten and in the J&K Constitution too. Men can lie but not
the documents. His statement was most
welcomed by the anti-India elements both inside the State and outside as well as
hostile elements across the country. He has unfairly dented not only the image of his late father but also
of India in the international spheres. Had both of them (Omar Abdullah and Dr Karan Singh) taken care to read Article-1 of the Indian Constitution in conjunction with Section-3 of the J&K State Constitution, they would not have ventured into harming the national cause in such an irresponsible manner.
It is advantageous to reproduce Article-1 of the Indian Constitution which says :
l India that is Bharat shall be a Union of States,
l The States and the Territories thereof shall be as specified in the First Schedule. In the First Schedule State of J&K as on date figures in seriatim at serial No. 15 along with other States of the Union at their respective places. There is no separate or special preference or reference to the State of J&K. Not only that no reference is made of Article-370 therein.
Section-3 of the J&K Constitution lays down that J&K is and shall be Integral part of India. Preamble of the State Constitution reads, “We the
people of the State of J&K having solemnly resolved, in of the Accession of this State of India which took place on 26th day of October, 1947, to
further define existing relationship of the State with the Union of India as an integral part thereof. Section-147 of the State Constitution interalia
imposes a bar that Section-3 cannot be amended by state legislature.
When the Government of Britain had decided to end her rule in India then for discussions Cabinet Mission had visited India and informed the Members of the “Chamber of Princes” that after the lapse of British Rule, the Princes would not be under their (Britain) suzerainty. On 25th of July, 1947, Lord Mountbatten addressed the Chamber of Indian Princes that in practice it would be in the better and logical interests of the Indian Princely States outside the independent divided British India to exercise the option of joining either of any two Dominions. There is no record available that he (Lord Mountbatten) or any of the Acts or the guidelines that existed in 1947 had made it mandatory for the then Princes to take into account the wishes of their subjects /people to execute another instrument by the name “merger document” or the like after a Prince had executed the Instrument of Accession with dominion of India. The British had established a
department for this purpose which was known “Department of States” (PP. 160 to 164 of the White Paper on Indian States). This Department was designated as “State Department” and was under the control of Sardar Patel who was Minister in charge of Home Affairs. The said Department had sent a communication to every State which envisaged that after Accession the States had to immediately surrender three subjects to the Dominion of India– Foreign Affairs, Communications and Defence. In view of such factual and legal matrix no inference can be drawn that Accession and Merger were two independent co-existing or coextensive incidents or legal identities. In plain words question of merger of some
territories/areas after Accession, where ever needed, for convenience of internal governance was exclusively in the domain of acceded Indian Dominion and acceding State had nothing to do with it.
Be that as it may, there were 565 Princely States in India at the time of independence. A large number of them had in a way only contracted with the Viceroy of India to provide public services and tax collections. Only twenty or twenty one Princely States could be said as having governments that could be in the real sense said as having governments that could be named as State Governments and from amongst them only four were large identities i.e. Baroda, Mysore, Hyderabad and J&K. J&K State had the largest territory of 84000 square miles which was bigger` in size than the area of 111 States of the world.
By 15th August, 1947; as many as 136 States had acceded to Union of India. V.P Menon got negotiated merger documents of smaller princely States with larger ones and in some cases with British Provinces such as small States of Orissa with the Province of Orissa. Dr Karan Singh while acting as Regent of his father Maharaja Hari Singh; on 25th of November, 1949 had formally accepted the spirit and jurisdiction of Constitution of India over State of J&K. When Indian Constitution was in the process of making, four
nominated members were sent from J&K State as representatives in the Constituent Assembly. This power could only be exercised by the Ruler i.e. Maharaja Hari Singh who on 26th October, 1947 had like other Rulers acceded to India (Hari Singh was represented by Regent Yuvraj Karan Singh in 1949). Even at the time when representatives were sent to the Constituent Assembly he was the Ruler under the State Constitution given by him in the year 1939. He was the fountain head of all the powers i,e. Executive, Judicial, Foreign Affairs and Legislative. His sovereign powers were immune from any law. Sheikh Abdullah through the medium of Prime Minister Pt Nehru illegally usurped Maharaja’s powers and made him only a figure head of the State. It should not be forgotten that Maharaja Hari Singh had pardoned Sheikh Abdullah for the conviction and sentence awarded to him for the offence of sedition for the remaining term of one and half years. This was done in the month of September, 1947. At that time, Sheikh Abdullah was not even a member of the then elected State Legislature (known as Praja Sabha). The then Prime Minister of the State M C Mahajan was in a way forced by the conditions prevailing to leave the State after accession within four months and Maharaja Hari Singh in place of Mahajan appointed Sheikh Abdullah as his Prime Minister. The Process did not end here because Maharaja himself was forced to leave the State forever within a period of less than two years after making the Accession. The conviction and sentence of Sheikh Abdullah was pardoned by Maharaja Hari Singh on the basis of a written apology letter dated 26th of September, 1947. Sheikh Abdullah had promised in that letter to remain loyal to Maharaja Hari Singh throughout his life and his
family members along with his political organisation namely, National Conference. Maharaja Hari Singh had Acceded on 26th of October, 1947 while as, Nizam of Hyderabad had Acceded in 1948. He (Nizam) had even entered into an armed conflict with the Dominion of India. He had been provided a place of respect and honour in his own State while as Maharaja Hari Singh had to live in exile in Bombay till his death in 1961.
To quote and undo the misconceptions being created by persons of significance, even like Omar Abdullah and Dr Karan Singh, in the name of something like unexecuted ‘merger document’ otherwise additionally required for execution by the Prince of Indian Princely State of J&K with India Dominion after 26th October 1947 Accession let it be quoted here, that on 18th December, 1947, Chattisgarh Rulers merged with the Central Provinces with in India Dominion after accession. Similarly; in between 17th to 21st January, 1948 scores of minor States in Kathiawar merged with adjoining States. There is long list of merged States throughout the country along with the adjoining State or with the adjoining Provinces for reorganisation leading to forming territories of states within the Indian union for local governance with the geographical boundaries of independent India. There is no need of a full discussion on such States regarding their merger or amalgamation as that was only an internal arrangement and had nothing to do with their Accessions made with Dominion of India.
The Union of India on 26th December, 1949 passed the “Merged States (Laws) Act 1949 which Act came into force on 1st day of January, 1950. When India was under British Colonial rule nearly two-fifth of the Indian subcontinent was ruled by the Indian Princes. The common feature was that all of them, big or small, recognized the paramountey of the British Government. Hence during the period 1948-1950, some of the princely States that joined India were either incorporated into existing former provinces of British India or others were formed into Unions of new States. The senior Ruling princes within the Union of India were mostly appointed as Raj Pramukhs and Maharaja Hari Singh was one of them. The appointing Authority was President of India.
It is stated here that when Indian Constitution came into force on 26th January, 1950 the process of Accession, internal merger or amalgamation had been completed. The States/Administered areas through Administrators, Chief Commissioners were later on shown in Schedule-1 as States of A, B, C and D categories as well as centrally administered areas in the Indian Constitution.
Former ruling Princes were guaranteed their hereditary styles and titles, certain privileges of rank and honour as well as economic security like privy purses to cover the living expenses of themselves and their families.Maharaja Hari Singh was also getting Privy Purse.
Subsequently, in 1956 State Organization Act was passed consequent upon the recommendation of State Re-organisation Commission. This process is continuously going on. The Congress Government had created some States and likewise NDA Government during its previous incarnation in the year 2002 had also created some States for administrative purposes.
Those who argue that Article 370 was intended to guarantee extra territorial Autonomy to the state Of J&K forget the fact that to some extent in similar way time was given to a few other States to define their relationship in the Constituent Assembly of Independent Indian Dominion that yet had to frame their Constitutions. Article 370 is purely of temporary nature and deals with the aspect of application of Central laws. The State had faced external aggression from Pakistan and forcibly nearly half of the area of the State was occupied by her, which still is in Pakistan’s possession. Unfortunately, the then Prime Minister Pt. Nehru had been duped by Lord Mountbatten on whose advice he made a complaint in UNO after Pakistan attacked Indian State of J&K. This was a second honey trap of Great Britain to give the J&K state to Pakistan. Not only that, there is no record which suggests that contents of Article 370 were drafted at the instance of Maharaja Hari Singh. Rather, evidence is there that stiff resistance in the Parliament was shown by majority of the members of Parliament including Law Minister Dr B R Ambedkar but Pt Nehru had made a personal issue to get it incorporated as he wanted to see Sheikh Abdulla in happy mood always. Article 370 incorporates self contained procedure for its amendment or abrogation. With the aid of this Article most of the Articles of the Indian Constitution barring 135 have been made
applicable in the State of J&K of course with few exceptions of their modifications respectfully.
Another specious argument as advanced by Mr. Omar Abdullah is that J&K State has two flags and it is a sign that demonstrates an extra-ordinary status.
The National Conference leaders are oftenly quoting Delhi Agreement of 1952 when Sheikh Abdullah was Prime Minister of the State. Some thinkers deny the validity of this Agreement as it was not signed and Sheikh Abdullah was denying the Fundamental Rights and jurisdiction of Supreme Court to the residents of the State. To nullify the argument of Mr Omar Abdullah, it is stated that in the text of 1952 Delhi Agreement it was agreed by the State Government that the State flag would not be a rival of the Union flag; it was also
recognised that the Union flag should have the same status and position in J&K as in the rest of India, but for
historical reasons connected with the freedom struggle in the State, the need for continuance of the State flag was recognised. It is relevant to state here that alleged struggle was launched by the inhabitants of only one Region of the State i.e. Kashmir Region which was the smallest in size compared to other four Regions. Everybody should know that when this flag started being hurled by Ministers of ruling National Conference party at that point of time State Flag of Maharaja also had
relevance under State Constitution of 1939 as that was still in force. Maharaja Hari Singh was de-facto and de-jure Ruler. Judges of the J&K High Court never hurled that new flag of the state and still do not hoist it on their cars. State flag had no rivalry with National Flag as Primacy is that of National Flag. Neither the ‘Separate Constitution’ nor ‘Separate’ flag of J&K is that of a sovereign country but are particular features extended in favour of validly Acceded State part of whose Territories were and are still under the illegal occupation of Pakistan.
Thus the argument for having a separate constitution along with State Flag also equally has no legal validity worth J&K having some special status.
The Constitution of India is the mother of State Constitution. The preamble of State Constitution which is key to understand its other provisions suggests that it was enacted in aid of Indian Constitution or as an extension of Constitution of India. Preamble in a way also suggests that along with Section 3 and Section 147 as well as other relevant Sections referred to here under J&K Constituent Assembly was not to draw a constitution for a Sovereign State but it had to only draw out the working methods/procedures for the day to day operations within the State and with exceptions to the Central Government executive, judicial and legislative jurisdictions.
To straighten the controversy reading of Section-4 of the J&K State Constitution is necessary. It defines the territory of the State which was on the 15th day of August 1947 under the Sovereignty and Suzerainty of the Ruler of the State. Section 6 relates to the permanent residents of the State and the primary qualification for being a Permanent Resident of J&K state is that a person has to be first a Citizen of India under the provisions of the Constitution of India. Section-6 even recognises a person who before 14th May, 1954 was a State Subject of Class-I or Class-II of J&K and had migrated after the first day of March, 1947 to the territory now included in Pakistan and return to the State under a valid permit for resettlement in the State. Under Section-48 of the State Constitution twenty four seats in the State Legislative Assembly are reserved for the subjects of J&K presently living in the area occupied by Pakistan until the area of the State under the occupation of Pakistan ceases to be so occupied and residents of that area can democratically elect their representatives. It thus becomes clear that State Constitution contains some supplements to the Indian Constitution and does not supplant it. In case a ‘Permanent’ resident of the State loses the citizenship rights as guaranteed under Indian constitution, he/she would also lose the right of Permanent Resident of the State as defined in the state constitution. A resident of the State does not have two citizenships as is often quoted by some. A Permanent Resident of J&K has only one citizenship and that is Indian citizenship. This is a very important legal proposition and everybody should know it before
making anti-national statements.
At the end, it is stated that Maharaja Hari Singh had acceded to the new Dominion of India in accordance with the provisions of The Indian Independence Act read with Government of India Act 1935 in the same manner in which other Rulers of princely states outside British India had acceded but he has been the only Ruler who was disgraced and sinned a little more than sinning. In an illegal manner he was forced to leave the territory of his State at the behest of Sheikh Abdullah whom he had made Prime Minister. It is because of Hari Singh’s signing the Instrument of Accession, on this day of 26th October, 1947, majority of the remaining lacs of inhabitants of the State of J&K were saved from the mayhems massacres, loots, abductions, rapes and colossal losses of properties from the hands of armed marauders who were let loose by Pakistan in the shape of their armed forces men and savage tribes men from their country. Even some patriot members of the majority community both men and women like Late Master Maqbool Shervani had also suffered along with some Christians alike a nurse who was working in Christian Charitable Hospital Baramulla.
(The writer is Former Judge of J&K High Court)