Accession of Ladakh
In 1834, Zorawar Singh, the General commanding the army of Gulab Singh, the Maharaja of Jammu invaded Ladakh. Ladakh came under Dogra rule and was incorporated into the State of Jammu and Kashmir in 1846. In the course of the Sino-Sikh War in 1841-42, the Qing Empire invaded Ladakh but the Sino Tibetan army was defeated. On 9 March 1846, the Treaty of Lahore was executed between the Maharaja of Lahore and the British Government, resulting in the transfer of certain territories to the East India Company. At Partition in 1947, Ladakh was a part of Jammu and Kashmir and was administered from Srinagar.
Following the Treaty of Lahore, the British Government executed the Treaty of Amritsar on 16 March 1846 in terms of which the hilly mountainous country with its dependencies situated to the east of the river Indus and west of the Ravi, including Chamba, and excluding Lahaul were transferred by the British Government to Maharaja Gulab Singh of Jammu. Maharaja Gulab Singh died on 30 June 1857 and was succeeded by his son Maharaja Ranbir Singh. Initially, the State was ruled as a monarchy and as a consequence, sovereignty vested in the monarch.
Suzerainty of British India
Following the passage of the Government of India Act 1858 on 2 August 1858, territories formally in the possession or under the control of the East India Company were vested in the British Monarch in whose name India was to be governed. Maharaja Ranbir Singh died in 1885 and was succeeded by Maharaja Pratap Singh.
On 30 August 1889, the British Parliament enacted the Interpretation Act 1889. Section 18(4) defined the expression British India to comprise of:
“all territories and places within Her Majesty’s dominions which are for the time being governed by Her Majesty through the Governor General of India…”
The term “India” was defined in Section 18(5) as comprising of:
“British India together with any territories of native prince or chief under the suzerainty of Her Majesty exercised through the Governor-General of India…”
The suzerainty of the colonising British over the territory of Jammu and Kashmir was such that external sovereignty rested with the Crown.
Classification of State Subject
Maharaja Pratap Singh was succeeded in 1925 by Maharaja Hari Singh, the last Ruler of the Princely State of Jammu and Kashmir. On 20 April 1927, the expression “State Subject” was defined in a notification issued by Maharaja in terms of which ‘State Subjects’ were classified into four categories which were subsequently to become the basis of the definition of the expression “Permanent Residents” of Jammu and Kashmir under Article 35A of the Constitution of India as it applied to the State of Jammu and Kashmir.
Maharaja Hari Singh enacted Regulation No 1 of Samvat 1991 on 22 April 1934 which established a Legislative Assembly called the ‘Praja Sabha’ for the State of Jammu and Kashmir. While delegating certain legislative functions to the Praja Sabha, Maharaja Hari Singh retained supremacy over all legislative, executive and judicial matters. This was indicative of internal sovereignty.
Government of India Act, 1935
By the Government of India Act, 1935 which was enacted by the British Parliament on 2 August 1935, India was established as a federation comprising of the Governors’ Provinces, Chief Commissioners’ Provinces and the Indian States which had or would accede to the Federation of India.
Part II was titled the ‘Federation of India’ and Chapter I of the Part provided for ‘Establishment of Federation and Accession of Indian States’. Section 5 provided for the Proclamation of the Federation of India. Section 6 enabled the Ruler of an Indian/Princely State to execute an IoA (Instrument of Accession) declaring that he acceded to the Federation of India subject to the terms of the Instrument.
The State of Jammu and Kashmir was not a part of British India. Hence, the provisions of the Government of India Act 1935 would apply to it only upon the execution of an IoA by the Maharaja in accordance with Section 6.
The Jammu and Kashmir Constitution Act 1939
The Jammu and Kashmir Constitution Act 1939 was promulgated on 7 September 1939. While Maharaja Hari Singh retained sovereignty and supremacy over all legislative, executive and judicial functions, Section 23 of the Act empowered the Praja Sabha to make laws for the entire State of Jammu and Kashmir or any part of it subject to the conditions specified in Section 24.
The Act vested executive functions with a Council consisting of a Prime Minister and other Ministers appointed by the ruler. The Act provided for the High Court (which had been established in 1928) to be a Court of Record with jurisdiction over civil suits and civil, criminal and revenue appeals.
In May 1946, the British Cabinet Mission issued a Memorandum titled ‘State’s Treaties and Paramountcy’ which affirmed that upon the establishment of an independent government in India, the paramountcy of the British monarch over Indian States would lapse and paramount power over their respective territories would return to the respective Princely States.
It envisaged that the States could enter into a federal relationship with the successor government. On 16 May 1946, a Statement was issued by the Cabinet Mission. According to paragraphs 15(1) and 15(4) of the Statement, the Cabinet Mission Plan recommended a Union of India where the Union would have control over defence, foreign affairs and communications while the States would retain jurisdiction over all other subjects which were not ceded to the Union.
Meanwhile, the Constituent Assembly was elected and came together to deliberate upon the form of governance for the country and frame a Constitution for it. The Constituent Assembly comprised of a broad-based representation from across the country in which the representatives of the Princely States continued to join. In terms of the Cabinet Mission Plan, the Constituent Assembly of India met for its first session on 9 December 1946.
On 22 January 1947, the Constituent Assembly unanimously adopted the Objectives Resolution which declared the “firm and solemn resolve to proclaim India as an Independent Sovereign Republic.” Paragraphs 2, 3, 4 and 7 declared that:
“(2) WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and
(3) WHEREIN the said territories whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union or as are inherent or implied in the Union or resulting therefrom; and
(4) WHEREIN all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and …
(7) WHEREIN there shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations.”
Undoubtedly, the rulers of the Princely States, had a contemporaneous and parallel understanding of the consequences of accession – the loss of sovereignty. Indeed, this was one of the factors (if not the main factor) which caused some of the Princely States (such as Hyderabad) to hesitate in acceding to India.
The following portions of the Objectives Resolution are of particular significance:
a. Paragraph 2 indicated that the territories which acceded would be acceding to the sovereign country of India;
b. Paragraph 3 indicated that the acceding territories would retain some level of autonomy (which is different from sovereignty);
c. Paragraph 4 indicated that the sovereignty of India was derived from its people as a whole. This included the people of the acceding territories; and
d. Paragraph 7 reinforced that the centrality of sovereignty vests with the people of the country as a whole.
On 20 February 1947, Clement Attlee, the Prime Minister of United Kingdom announced that:
a. The British Government would grant full self-government to British India by 30 June 1948; and
b. The future of the Princely States would be decided after the date of final transfer was determined.
On 3 June 1947, representatives of the Indian National Congress, the Muslim League and the Sikh Community came to an agreement with Lord Mountbatten, the agreement being known as the ‘Mountbatten Plan’. The Mountbatten Plan inter alia envisaged:
a. The partition of British India;
b. Grant of Dominion status to successor governments;
c. Autonomy and sovereignty to India and Pakistan;
d. Adoption of Constitutions by both the nations; and
e. An option to Princely States to either join India or Pakistan.
Creation of a States’ Department
On 13 June 1947, a meeting was convened by Lord Mountbatten with Jawaharlal Nehru, Sardar Patel, Acharya Kripalani, Muhammad Ali Jinnah, Liaquat Ali Khan, Sardar Abdul Nishtar and Sardar Baldev Singh, at which the creation of a States’ Department was envisaged. It was envisaged that:
“That it would be advantageous if the Government of India were to set up a new Department, possibly called the “States Department”, to deal with matter of common concern with the States; that, if this were done, the new Department should be divided into two sections, ready for the partition of the country and that the existing Political Department and the Political Adviser should give all possible assistance and advice in the formation of this new Department”
On 15 June 1947, the Congress Working Committee on States repudiated the British perspective that the lapse of paramountcy would result in the creation of independent states. It stated that:
“The committee does not agree with the theory of paramountcy as enunciated and interpreted by the British Government; but even if that is accepted, the consequences that flow from the lapse of paramountcy are limited in extent. The privileges and obligations as well as the subsisting rights as between the States and the Government of India cannot be adversely affected by the lapse of paramountcy.
These rights and obligations have to be considered separately and renewed or changed by mutual agreement. The relationship between the Government of India and the States would not be exhausted by lapse of Paramountcy. The lapse does not lead to the independence of the States.”
The British Government and Indian bodies evidently disagreed on whether paramountcy would lapse.
On 25 June 1947, the Interim Cabinet of India issued a press communique on 27 June 1947 for the setting up of a States’ Department chaired by Sardar Vallabhai Patel to deal with matters arising between the central Government and Indian states. The communique stated that:
“In order that the successor Government will each have an organisation to conduct its relations with the Indian States when the Political Department is wound up, His Excellency the Viceroy, in consultation with the Cabinet, has decided to create a new Department called the States Department to deal with matters arising between the Central Government and the Indian States.
This Department will be in charge of Sardar Patel, who will work in consultation with Sardar Abdur Rab Nishtar. The new Department will be organised in such a way and its work so distributed that at the appropriate time it can be divided up between the two successor Governments without any dislocation.”
Accession of Kashmir to British India
On 3 July 1947, Sardar Patel wrote to Maharaja Hari Singh stating that “the interests of Kashmir lie in joining the Indian Union and its Constituent Assembly without any delay” and that “its past history and tradition demand it, and India looks up to you and expects you to take this decision”.
The States Department was a part of the Ministry of Home Affairs headed by Sardar Patel. On 5 July 1947, Sardar Patel issued the following statement:
“I have a few words to say to the rulers of Indian States among whom I am happy to count many as my personal friends. It is the lesson of history that it was owing to her political fragmented condition and our inability to make a united stand that India succumbed to successive waves of invaders. Our mutual conflicts, and internecine quarrels and jealousies have in the past been the cause of our downfall and our falling victims to foreign domination a number of times. We cannot afford to fall into those errors or traps again. We are on the threshold of independence. …
But there can be no question that despite this separation a fundamental homogeneous culture and sentiment reinforced by the compulsive logic of mutual interests would continue to govern us. Much more would this be the case with that vast majority of States which owing to their geographical contiguity and indissoluble ties, economic, cultural and political, must continue to maintain relations of mutual friendship and co-operation with the rest of India. The safety and preservation of these States as well as of India demand unity and mutual co-operation between its different parts. …
I do not think it can be their desire to utilise this freedom from domination in a manner which is injurious to the common interests of India or which militates against the ultimate paramountcy of popular interests and welfare or which might result in the abandonment of that mutually useful relationship that has developed between British India and Indian States during the last century. This has been amply demonstrated by the fact that a great majority of Indian States have already come into the Constituent Assembly. To those who have not done so, I appeal that they should join now.
The States have already accepted the basic principle that for Defence, Foreign Affairs and Communications they would come into the Indian Union. We expect (sic) more of them than accession on these three subjects in which the common interests of the country are involved. … Nor would it be my policy to conduct the relations of the new Department with the States in any manner which savours of the domination of one over the other; if there would be any domination, it would be that of our mutual interests and welfare. …
Let not the future generations curse us for having had the opportunity but failed to turn it to our mutual advantage. Instead, let it be our proud privilege to leave a legacy of mutually beneficial relationships which would raise this Sacred Land to its proper place amongst the nations of the world and turn it into an abode of peace and prosperity.”
Prime Minister Attlee’s Remarks
On 10 July 1947, during the second reading of the Indian Independence Bill, Prime Minister Attlee made the following statement:
“A feature running through all our relations with the states has been that the Crown has conducted their foreign relations. They have received no international recognition independent of India as a whole. With the ending of the treaties and agreements, the states regain their independence. But they are part of geographical India, and their rulers and peoples are imbued with a patriotism no less great than that of their fellow Indians in British India.
It would, I think, be unfortunate if, owing to the formal severance of their paramountcy relations with the Crown, they were to become islands cut off from the rest of India. The termination of their existing relationship with the Crown need have no such consequence. …
It is the hope of His Majesty’s Government that all states will, in due course, and their appropriate place within one or other of the new dominions within the British Commonwealth, but until the constitutions of the Dominions have been framed in such a way as to include the states as willing partners, there must necessarily be a less organic form of relationship between them, and there must be a period before a comprehensive system can be worked out.”
Even within the British Government, there was uncertainty as to the precise practical effects of the lapse of paramountcy.
Indian Independence Act 1947
On 18 July 1947, the British Parliament enacted the Indian Independence Act 1947. In terms of Section 1(1), two independent Dominions – India and Pakistan – were to be established from 15 August 1947. Section 7(1)(b) stipulated that following independence, the sovereignty of the British monarch over Indian States would lapse and return to the rulers of those States.
Consequently, as sovereign States, 562 Princely States had the choice to remain independent or to accede to either of the two Dominions established by this Act. Section 8 enunciated that as a transitional measure, the provisions of the Government of India Act 1935 would continue to apply to the two Dominions subject to conditions. In pursuance of the provisions of Section 9, the Governor-General of India issued the India (Provisional Constitution) Order 1947 which made certain provisions of the Government of India Act1935 applicable to India until other provisions were made applicable by the Constituent Assembly.
Section 6 dealt with the accession of Princely States to India through the execution of an IoA. Section 6 provided as follows: “Section 6. Accession of Indian States:-
(1) An Indian State shall be deemed to have acceded to the Dominion if the Governor-General has signified his acceptance of an Instrument of Accession executed by the Ruler thereof whereby the Ruler on behalf of the State:-
(a) declares that he accedes to the Dominion with the intent that the Governor-General, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of his Instrument of Accession, but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State such functions as may be vested in them by order under this Act; and
(b) assumes the obligation of ensuring that the effect is given within the State to the provisions of this Act so far as they are applicable therein by virtue of the Instrument of Accession.
(2) An Instrument of Accession shall specify the matters which the Ruler accepts as matters with respect to which the Dominion Legislature may make laws for the State, and the limitations, if any, to which the power of the Dominion Legislature to make laws for the State, and the exercise of the executive authority of the Dominion in the State, are respectively to be subject.
(3) A Ruler may, by a supplementary Instrument executed by him and accepted by the Governor-General vary the Instrument of Accession of his State by extending the functions which by virtue of that Instrument are exercisable by any Dominion authority in relation to his State.”
A Draft Common IoA and Standstill Agreements were drawn up by the Department of States.
India obtained independence on 15 August 1947. Partition resulted in the establishment of the two Dominions of India and Pakistan. British paramountcy lapsed. Those of the Princely States which had not executed an IoA with either Dominion became independent States. These were Junagarh, Hyderabad and Jammu and Kashmir. Once again, the sovereignty of Jammu and Kashmir rested in the ruler, Maharaja Hari Singh.
The Government of Jammu and Kashmir signed a Standstill Agreement with Pakistan. On 27 September 1947, Nehru addressed a letter to Sardar Patel underlining that “the Pakistani strategy is to infiltrate Kashmir now and to take some big action as soon as Kashmir is more or less isolated because of coming winter.”
Shortly thereafter, on 26 October 1947, Maharaja Hari Singh addressed a communication to Lord Mountbatten requesting the immediate assistance of his government. The letter noted that the Maharaja wanted time to decide to which Dominion he should accede or whether it would be in the best interest of both the Dominions as well as Jammu and Kashmir for the State to “stand independent.” The Maharaja noted the grave danger to Jammu and Kashmir from Pakistan in spite of the Standstill Agreement.
Adverting to the conditions in the State and the “great emergency of the situation as it exists,” the Maharaja stated that he had no option but to ask for help from the Indian Dominion, accepting at the same time that India could not send the help asked for by him without Jammu and Kashmir acceding to the Dominion of India. The Maharaja decided to accede to the Union of India. The offer of accession noted that if the State of Jammu and Kashmir “has to be saved immediate assistance must be available at Srinagar.”
Signing of Instrument of Accession by Maharaja Hari Singh
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. The IoA contains the following declaration in paragraph 1:
“I hereby declare that I accede to the Dominion of India with the intent that the Governor General of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall by virtue of this my Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State of Jammu & Kashmir … such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India, on the 15th day of August 1947…”
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. The Governor-General stated that in response to the Maharaja’s appeal for military aid, action has been taken to send the troops of the Indian Army to Kashmir “to help your own forces to defend your territory and to protect the lives, property and honour of your people.”
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.
Before the Constitution of India came into force, the process of integrating Princely States with the Dominion of India was progressively being achieved. Many Princely States executed IoA and Standstill Agreements.
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 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.
However, the legal fact of accession had resulted in the transfer of sovereignty from the Maharaja to India. The White Paper states:
“The effect of this provision is that the State of Jammu and Kashmir, continues to be a part of India. It is a unit of the Indian Union and the Union Parliament will have jurisdiction to make laws for this State on matters specified either in the Instrument of Accession or by after additions with the concurrence of the Government of the State. An order has been issued under Article 370 specifying (1) the matters in respect of which the Parliament may make laws for the Jammu and Kashmir State and (2) the provisions, other than Article 1 and Article 370, which shall apply to that State (Appendix LVl).
Steps will be taken for the purpose of convening a Constituent Assembly which will go into these matters in detail and when it comes to a decision on them, it will make a recommendation to the President who will either abrogate Article 370 or direct that it shall apply with such modifications and exceptions as he may specify.”
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.
Re: article 370 of the constitution, 2023