What often goes unnoticed is the fact that the genesis of Kashmir (commonly known as Jammu and Kashmir) is linked to 565 princely states, which became independent along with the birth of two sovereign, Independent countries, India and Pakistan on August 15, 1947. Since the “departure document” of the British did not give any option to any of the 565 princely states to remain independent and made it compulsory to join, or choose to join, either India or Pakistan, J&K, too, understandably, had no other option but to follow suit as the other princely states did. Nevertheless, another aspect which often remains unknown to the people of India is that by August 15, 1947, whereas the rulers of 540 princely states had signed the Instrument of Accession to be part of India thereof, not one of the remaining 25 princely states acceded to Pakistan.
The princely state of Kashmir, nevertheless, took its own time to decide which country to accede, thereby continuing to be independent (and even toyed with the idea of permanent independence) from August 15, 1947, till it signed the Instrument of Accession on October 26, 1947, to join India (which was duly accepted on October 27, 1947). Thus, Kashmir, indeed, was a sovereign state like all other princely states — until they joined India or Pakistan — for two months and 11 days (or 72 days to be precise).
It has, however, been argued in the past, and again last month, that J&K is a “sovereign state”, and, on July 17, a J&K high court decision of division bench comprising Justices Muzaffar Hussain Attar and Ali Mohammad Magrey declared that signing of the Instrument of Accession with India by Maharaja of J&K notwithstanding, “legally and constitutionally” the “sovereignty of J&K remained intact and untampered”. Somehow, one finds this verdict to be exciting without any excitement. Why? Because of the following legal points:
(1) The Instrument of Accession signed by the Maharaja of J&K on October 26, 1947, was in the same form as was executed by the rulers of hundreds of other princely states which had acceded to India following the enactment of Indian Independence Act 1947. If the case of J&K is challenged then following the same law, logic and language other cases, too, are likely to fall by the wayside with application of the same legal interpretation.
(2) While the departing British gave away their suzerainty over all Indian states and the princely states became sovereigns competent to accede to either India or Pakistan, the Maharaja of Kashmir opted for India. Clearly, therefore, the legal sanctity and the terms of accession were the same in case of all the states, including in cases of accession to Pakistan.
The above legal statute and the status emanating there from thus made the state of J&K legally and irrevocably a part of the territory of India, thereby nullifying any claims to the use of the words “sovereign” or “sovereignty” as far as some elements of the state of J&K are concerned. Soon, thereafter, followed the Constitution of India on January 26, 1950, with the application of Articles 1 and 370 as the principal connecting points between India and the newly acceded state of J&K.
However, this was an interim arrangement pending the J&K Constituent Assembly’s ratification of the accession, which was done in 1954. This was reiterated by the Preamble of the redrafted Constitution of J&K, which came into effect on January 26, 1957. It stipulated, “We, the people of the state of Jammu and Kashmir, having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof…”
The most enduring of all sections of the Constitution of J&K are Section 3 (“The State of Jammu and Kashmir is and shall be an integral part of the Union of India.”), Section 5 (“The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India”) and Section 147 which clarifies that amendments to the Constitution of J&K may be initiated “Provided further that no Bill or amendment seeking to make any change in — (a) this section; or (b) the provisions of sections 3 and 5 ; or (c) the provisions of the Constitution of India as applicable, in relation to the state, shall be introduced or moved in either House of the Legislature”.
Thus, it can be seen that the clearly worded Constitution of J&K is in itself the declaration and guarantee of its being an integral part of India, thereby nullifying Sunanda K. Datta-Ray’s opinion in his article, Don’t mess with 370 (July 21), on Deccan Chronicle that “However unpalatable many readers might find this, J&K is not a part of the Indian Union.”
One really wishes that responsible citizens of India check the provisions of law and facts for the sake of credibility. Secondly, any serious student of law and the Constitution of India will tell you that Article 370 has virtually been diluted, so much so that in real life it hardly merits mention, not to speak of calling for its abolition.
No one in Delhi wants to mess with Article 370 because there is absolutely no cause-of-action left to do so. The said Article may or may not be a part of the basic structure of the Indian Constitution, but as long as the Constitution of India and J&K share the same wavelength with provisions of connectivity woven in, any talk of its abolition at best or worst would only be an exercise in futility. J&K already stands integrated with India in letter, spirit and soul; terrorist attacks and sporadic violence carried out by fringe elements notwithstanding. Thus, despite innumerable failures, fault lines and follies successive governments in Delhi have succeeded in maintaining a steady and balanced course thereby giving J&K a safe Srinagar-Delhi-Srinagar route.
And the people of J&K are aware of this no matter their political and ideological differences with the Centre. Against this background, only back-channel diplomatic manoeuvring and manipulations between India and Pakistan need to be eschewed. After 68 years, it is time to settle one agenda. The de facto Line of Control can only turn into a de jure border. The demands for referendum, plebiscite, freedom, limited accession, sovereignty, etc., are dated. It’s time to face the reality of the law of the land. The debate over the demand for abolition of Article 370 notwithstanding, there’s no disputing the fact that Srinagar is very much a part of India.
The writer is a Supreme Court advocate
