For a better understanding of the article, Read the previous part also-
Maharaja Hari Singh signed the IoA on 26 October 1947. The Maharaja stated that he was doing so in terms of the provisions of the Government of India Act 1935 enabling any Indian State to accede to the Dominion of India by the execution of an IoA by the Ruler. The Maharaja acceded to the Dominion of India “in the exercise of my sovereignty in and over my said State.”
As a consequence, the independence attained by the State when British paramountcy lapsed was ceded to the Union of India. In terms of Paragraph 3, the Maharaja accepted matters specified in the Schedule “as the matters with respect to which the Dominion Legislature may make laws for the State.” Paragraph 5 stipulated that the terms of the IoA shall not be varied by any amendment “of the Government of India Act 1935 or the Indian Independence Act 1947 unless such an amendment is accepted by the Maharaja by an Instrument supplementary to the Instrument.”
Paragraph 7 provided that: “7. nothing in this Instrument shall be deemed to commit in any way to acceptance of any future constitution of India or to fetter my discretion to enter into agreement with the Government of India under any such future constitution.”
Paragraph 8 provided that nothing in the IoA would affect the continuance of the sovereignty of the Maharaja in and over the State, the exercise of any powers, authority and rights enjoyed by him as Ruler save as otherwise provided by the Instrument and the validity of any law which was in force.
The IoA was accepted by the Governor-General on 27 October 1947. On 5 March 1948, Maharaja Hari Singh issued a Proclamation establishing an Interim Government for the State of Jammu and Kashmir pending the framing of a Constitution for the State.
The White Paper on States (1951) contains an illuminating discussion on territorial integration. As regards the State of Jammu and Kashmir, Para 221 of the White Paper provides:
“Special provisions regarding the State of Jammu and Kashmir 221. The State of Jammu and Kashmir acceded to India on October 26, 1947. The form of the Instrument of Accession executed by the Rule of the State is the same as that of the other Instruments executed by the Rulers of other acceding States.
Legally and constitutionally therefore the position of this State is the same as that of the other acceding States. The Government of India, no doubt, stand committed to the position that the accession of this State is subject to confirmation by the people of the State. This, however, does not, detract from the legal fact of accession. The State has therefore been included in Part B States.”
The White Paper
The White Paper notes Jammu and Kashmir was incorporated as a Part B State. Moreover, with the inauguration of the Constitution, all the merged entities “have lost all vestiges of existence as separate entities”. The White Paper noted that in view of the special problems which were arising in the State of Jammu and Kashmir and bearing in mind the assurance of the Government of India that its people would themselves finally determine their political future, the provisions of Article 370 were introduced.
In June 1949, Maharaja Hari Singh issued a Proclamation delegating his power and authority to Yuvraj Karan Singh who would function as the ruler of the State. Following his appointment as the ruler, Yuvraj Karan Singh nominated four representatives from Jammu and Kashmir to the Constituent Assembly of India. On 16 June 1949, Sheikh Abdullah joined the Constituent Assembly together with three other representatives from the State of Kashmir namely Mirza Mohammed Afzal Baig, Maulana Mohammed Sayeed Masoodi and Moti Ram Bagda
In July 1949, a note prepared by the Ministry of States regarding the Indian States specifically noted that Jammu and Kashmir would be treated as a part of Indian Territory:
“The Government of India have considered the matter in its various aspects and are of the opinion that in view of the present peculiar situation in respect of Jammu and Kashmir State it is desirable that the accession of the State should be continued on the existing basis till the State could be brought to the level of other States. Special provision has therefore to be made in respect of this State on the basis suggested above as a transitional arrangement.”
On 14 October 1949, Jammu and Kashmir was included among Part III States under Article 1 with a territory comprising of the corresponding Indian States immediately before the commencement of the Constitution. The Part III States were: “1. Hyderabad 2. Jammu and Kashmir 3. Madhya Bharat 4. Mysore5. Patiala & East Punjab States Union 6. Rajasthan 7. Saurashtra 8. Travancore-Cochin 9. Vindhya Pradesh” There were nine Part III States including Jammu and Kashmir.
On 15 October 1949, four seats were allocated in the Constituent Assembly to Kashmir. The re-allocation of seats in the Constituent Assembly to various States was necessitated because between December 1946 and November 1949:
a. Many of the smaller States merged with the provinces;
b. Many other States were united to form Unions of States; and
c. Some States came to be directly administered as Chief Commissioners’ Provinces
These changes required a re-adjustment of the representation of the States. The modalities which were followed were thus:
a. For States which were merged in Provinces, the Speaker of the Legislative Assembly was authorised to hold elections and to notify the persons elected or nominated to the Constituent Assembly;
b. Where the States were united to form a Union of States and for Hyderabad, Mysore and Jammu and Kashmir, the Rajpramukh or Ruler was entrusted with this function; and
c. In the case of States which were constituted into Chief Commissioners’ Provinces, the function was entrusted to the Chief Commissioner.
On 17 October 1949, four seats were allotted to the State of Jammu and Kashmir, among other States, in the Council of States.
Adoption of Article 370
Draft Article 306A, which later became Article 370 on the adoption of the Constitution, was debated in the Constituent Assembly on 17 October 1949. Gopalaswami Ayyangar, while participating in the debate, furnished the rationale for Article 370. Ayyangar stated that:
“Sir, this matter, the matter of this particular motion, relates to the Jammu and Kashmir state. The house is fully aware of the fact that that State has acceded to the Dominion of India. The history of this accession is also well known. The accession took place on the 26th October, 1947. Since then, the State has had a chequered history. Conditions are not yet normal in the state. The meaning of this accession is that at present that state is a unit of a federal state namely, the Dominion of India.
This Dominion is getting transformed into a Republic, which will be inaugurated on the 26th January, 1950. The Jammu and Kashmir State, therefore, has to become a unit of the new Republic of India. As the House is aware, accession to the Dominion always took place by means of an instrument which had to be signed by the Ruler of the State and which had to be accepted by the Governor-General of India. That has taken place in this case as the House is also aware, instruments of accession will be a thing of the past in the new Constitution.
The States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a document of accession for the purpose of becoming units of the Republic, but they are mentioned in the Constitution itself; and, in the case of practically all States other than the State of Jammu and Kashmir, their constitutions also have been embodied in the Constitution for the whole of India. All those other states have agreed to integrate themselves in that way and accept the constitution provided.”
On 25 November 1949, a Proclamation was issued for the State of Jammu and Kashmir by Yuvraj Karan Singh. The Preamble to the Proclamation notes that the Constituent Assembly which was drafting the Constitution of India included representatives of the State of Jammu and Kashmir. The Preamble states that:
“Whereas with the inauguration of the new Constitution for the whole of India now being framed by the Constituent Assembly of India, the Government of India Act, 1935 which now governs the constitutional relationship between this State and the Dominion of India will stand repealed;
And Whereas, in the best interests of this State, which is closely linked with the rest of India by a community of interests in the economic political and other fields, it is desirable that the constitutional relationship established between this State and the Dominion of India, should be continued as between this State and the contemplated Union of India;
and the Constitution of India as drafted by the Constituent Assembly of India, which included duly appointed representatives of this State, provides a suitable basis for doing so.”
The Proclamation stated that the provisions of the Constitution shall govern the constitutional relationship between the State and Union of India, and that it shall supersede all other constitutional provisions which are inconsistent with the provisions of the Constitution:
“I now hereby declare and directThat the Constitution of India shortly to be adopted by the Constituent Assembly of India shall in so far as it is applicable to the State of Jammu and Kashmir, govern the constitutional relationship between this State and the contemplated Union of India and shall be enforced in this State by me, my heirs and successors in accordance with the tenor of its provisions That the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State.”
The Proclamation by the ruler made it abundantly clear that:
a. The constitutional relationship between the State of Jammu and Kashmir and the Union of India would be governed by the Constitution of India upon its adoption by the Constituent Assembly;
b. The Constitution would be enforced in the State of Jammu and Kashmir in accordance with its provisions; and
c. The Constitution would upon its commencement supersede and abrogate all other constitutional provisions of the State which were inconsistent with it. The Proclamation is of particular significance in addressing the argument of the petitioners that Jammu and Kashmir retained sovereignty because it did not enter into an agreement of merger with the Union of India.
The declaration that the Constitution of India would not only supersede all other constitutional provisions in the State which were inconsistent with it but also abrogate them achieves what would have been attained by an agreement of merger. We may recall that paragraph 7 of the IoA provided that nothing in the Instrument shall be deemed to commit to acceptance of any future constitution of India. The Proclamation accepted the Constitution of India in no uncertain terms.
Paragraph 7 of the IoA therefore ceased to have legal import. The acceptance of the Constitution was not a conditional, temporary or reversible act. Paragraph 8 of the IoA provided that nothing in it would affect the continuance of the sovereignty of the Maharaja in and over the State, the exercise of any powers, authority and rights enjoyed by him as Ruler save as otherwise provided by the Instrument and the validity of any law which was in force.
With the issuance of the Proclamation, paragraph 8 ceased to be of legal consequence. The Proclamation reflects the full and final surrender of sovereignty by Jammu and Kashmir, through its sovereign ruler, to India – to her people who are sovereign.
The Constitution of India was adopted by the Constituent Assembly on 26 November 1949 and came into force on 26 January 1950, repealing the Indian Independence Act 1947 and the Government of India Act 1935.
Constituent Assembly of Jammu and Kashmir
On 1 May 1951, a Proclamation was issued by Yuvraj Karan Singh directing the establishment of an elected Constituent Assembly to draft a Constitution for the State of Jammu and Kashmir. The Constituent Assembly of Jammu and Kashmir was convened on 31 October 1951.
In his statement before the Constituent Assembly, Sheikh Abdullah adverted to the circumstances leading up to the signing of the IoA by the Maharaja, categorically adverting to the invasion from the side of Pakistan which would have otherwise led to the occupation of the whole state by Pakistani troops and tribesmen:
“The overwhelming pressure of this invasion brought about a total collapse of the armed force of the State as well as its administrative machinery leaving the completely defenseless people at the mercy of invaders. It was not an ordinary type of invasion, inasmuch as no canons of warfare were observed. The tribesmen, who attacked the State in thousands, killed, burned, looted and destroyed whatever came their way and in this savagery no section of the people could escape.
Even the nuns and nurses of a Catholic Mission were either killed, or brutally maltreated. As these raiders advanced towards Srinagar, the last vestige of authority, which lay in the person of the Maharaja, suddenly disappeared from the Capital. This created a strange vacuum, and would have certainly led the occupation of the whole state by Pakistani troops and tribesmen, if, at this supreme hour of crises, the entire people of Kashmir has not risen like a solid barrier against the aggressor. They halted his onrush, but could not stop him entirely as the defenders, had not enough experience training to fight back effectively.
There is no doubt that some of them rose to great heights of heroism during these fateful days. Who can help being moved by the saga of crucified Sherwani, Abdul Aziz, Brigadier Rajendra Singh, Prem Pal, Sardar Rangil Singh early militia boys like Poshkar Nath Zadoo, Somnath Bira Ismail, among scores of other named and unnamed heroes of the all communities. But we, through rich in human material, lacked war equipment and trained soldiers. When the raiders were fast approaching Srinagar, we could think of only one way to save the state from total annihilation-by asking for help from a friendly neighbour.
The representative of the National Conference, therefore, flew to Delhi to seek help from the Government of India. But the absence of any constitutionalities between our State and India made it impossible for her to render us any effective assistance in meeting the aggressor. As I said earlier, India had refused to sign a Stand Still Agreement with the state on the ground that she could not accept such an Agreement until it had the approval of the people.
But now, since the people’s representatives themselves sought an alliance, the Government of India showed readiness to accept it. Legally the instrument of Accession had to be signed by the ruler of the state. This the Maharaja did. While accepting that accession, the Government of India said that she wished that “as soon as law and order have been restored in the Kashmir and her soil cleared of the Invader, the question of the state’s accession should be settled by reference of the people.”
In the course of his address to the Constituent Assembly of Jammu and Kashmir, Sheikh Abdullah highlighted the following reasons in support of acceding to India:
a. The adoption of democracy, as a consequence of which “there is no danger of a revival of feudalism and autocracy” if Jammu and Kashmir were to accede to India;
b. In the previous four years, the Government of India had made no attempt to interfere in the internal autonomy of Jammu and Kashmir;
c. The Indian Constitution provided for a secular democracy based on the precepts of justice, freedom and equality;
d. The Indian Constitution had repudiated the concept of a religious state by guaranteeing the equality of citizens irrespective of religion, colour, caste and class;
e. The national movement in Jammu and Kashmir gravitated towards these principles of secular democracy;
f. The economic advantages of aligning with India; and
g. The potential of achieving land reforms under the Indian Constitution.
Sheikh Abdullah noted that the most powerful argument in favour of acceding to Pakistan was that the Pakistan was a Muslim state and a large majority of the people in Jammu and Kashmir professed the religion. Repelling the argument, Sheikh Abdullah observed:
“The most powerful argument which can be advanced in her favour is that Pakistan is a Muslim State, and a big majority of our people being Muslim the State must accede to Pakistan. This claim of being a Muslim state is of course only a camouflage. It is a screen to dupe the common man, so that he may not see clearly that Pakistan is a feudal State in which a clique is trying by these methods to maintain itself in power. In addition to this, the appeal to religion constitutes a sentimental and a wrong approach to the question. Sentiment has its own place in life, but often it leads to irrational action.
Some argue, supposedly natural corollary to this that our acceding to Pakistan our annihilation or survival depends. Facts have disproved this; right thinking man would point out that Pakistan is not an organic unity of all the Muslims in this subcontinent. It has on the contrary, caused dispersion of the Indian Muslims for whose benefit it was claimed to have been created. There are two Pakistan at least a thousand miles apart from each other.
The total population of western Pakistan which is contiguous to our State is hardly 25 million, while the total number of Muslims resident in India is as many as 40 million. As one Muslim is as good as another, the Kashmiri Muslim if they are worried by such considerations should choose the 40 million living in India.”
On 10 June 1952, the Basic Principles Committee of the Jammu and Kashmir Constituent Assembly submitted its interim report recommending that:
a. The form of the future Constitution of Jammu and Kashmir would be wholly democratic;
b. Hereditary rulership shall be terminated and;
c. The Head of State shall be elected.
Delhi Agreement 1952
In 1952, the Delhi Agreement was entered into between the Government of India and the Government of Jammu and Kashmir. In terms of the Agreement, the Union Government agreed that while residuary powers of the Legislature vested in Parliament in respect of other States, in the case of Jammu and Kashmir, the residuary powers vested in the State itself because of the consistent stand taken by the Jammu and Kashmir Constitution that “sovereignty in all matters other than those specified in the IoA reside in the State”:
“in view of the uniform and consistent stand taken up by the Jammu and Kashmir Constituent Assembly that sovereignty in all matters other than those specified in the Instrument of Accession continues to reside in the State, the Government of India agreed that, while the residuary powers of legislature vested in the Centre in respect of all states other than Jammu and Kashmir, in the case of the latter they vested in the State itself”
In the meantime, the President issued Constitutional Orders from time to time as discussed in the other parts of the judgment. The process of integration of Jammu and Kashmir was a gradual one. This was necessitated due to the special conditions which prevailed in the State, as discussed in this segment. The Constitution of Jammu and Kashmir, too, was meant to play a role in this gradual process of integration.
As evinced by the discussion of the historical trajectory of the relationship of Jammu and Kashmir with the Union of India, sovereignty was surrendered in part with the signing of the IoA and in full, with the issuance of the Proclamation by Yuvraj Karan Singh in November 1949.
Re: article 370 of the constitution, 2023