Kashmir’s Accession to India is conditional

India has always claimed that the accession of the State of Jammu and Kashmir to India is absolute and legally unconditional, while the letters exchanged between India’s Governor-General Lord Mountbatten and the State’s Maharaja Hari Singh constitute a political Commitment. A document recently unearthed from the National Achieves of India puts things in perspective. Section 8 (2) of the Indian Independence Act, 1947 empowered the Governors-General of India and Pakistan to make orders to adapt the Government of India Act 1935 to serve as their interim constitution until their respective Constituent Assembly framed their Constitutions.

Section 6 (1) of the Government of India Act, 1935 as adapted by India provided a procedure for accession of the Indian States to the Union of India. It said: “(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 due 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 respects to which the Dominion Legislatures 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 this executive authority of the Dominion in the State, are respectively to the subject. (6) As soon as may be after any Instrument of Accession or supplementary Instrument has been accepted by the Governor-General under this Section, copies of the Instrument and of the Governor-General’s acceptance thereof, shall be laid before the Dominion Legislature, and all courts shall take judicial notice of every such Instrument and acceptable.”

Thus a valid accession required (1) The ruler’s signature of “an Instrument of Accession”, (2) The Instrument must contain the ruler’s obligations under clauses (1) (a) and (b) and (2). (3) The Instrument of Accession must be formally “accepted” by the Governor-General, and (4) Copies of the signed Instrument and the document which “signified his (the Governor-General’s) acceptance must be laid before the Dominion Legislature.

Now, note what happened in the case of Hyderabad. Even after the military invasion on 13 September 1948, dishonestly called the “police action”, the Nizam never signed the Instrument of Accession at all. All he did was to write a letter of 11 lines two months later, on November 18 1948, to the Governor-General of India C. Rajagopalachari, which read thus: “I take the liberty of addressing you in regard to the treatment of the three subjects, namely, External Relations, Defence, and Communications. I desire to make it clear that the Hyderabad State has no external relations, and never had any, whether before or after the 15th August 1947. I desire that this subject may continue to be treated as the concern of the Government of India. With respect to the other two subjects of the Defence and Communication, I wish that they should continue to be controlled by the Government of India.”
Yet, such a vague letter which did not comply with section 6 was treated as a valid document of “accession”. The White Paper on Indian States, published by the Government of India in February 1950, after the new Constitution of India had come into force, on 26 November 1950, contained this strange para 222 at page 113: “The State of Hyderabad did not accede to the Dominion of India, although the Standstill agreement entered into the Nizam with the dominion in November 1947, ensuring virtual and not actual accession of the State in respect of Defence, External affairs and communications continued till the enforcement of the new Constitution, by virtue of het Nizam’s letter dated the 18th November 1948. The Government of India has repeatedly declared that the political future of the State and its relationship with India are matters to be decided by the people of the State. Arrangements are being made for constituting in the State a Legislature elected on the basis of adult franchise, to enable the people of the State to decide its political future.” The clear absence of a formal Instrument of Accession and its formal acceptance were thus condoned. It is another matter that in November 1949 the Nizam issued a Proclamation accepting the new Constitution. But, for a whole year from September 1948 to November 1949, Hyderabad was governed without a valid Instrument of Accession.

In glaring contrast, a hyper-technical stand has been consistently and dishonestly adopted by India in respect of the State of Jammu and Kashmir. An Instrument of Accession had been drafted as far back as in 1935 when the British Parliament enacted the Government of India Act, 1935. Its federal part never went into operations when the Act came into force on 1 April 1937, since the princes refused to accede. But the part conferring responsible government and autonomy on the Provinces of British India did go into effect.

In 1947, a decade later V. P. Menon, the brilliant Reforms Commissioner, pressed into service the draft of the Instrument of Accession. In October 1947 Hari Singh fled from Srinagar to Jammu in panic abandoning his capital, a fact which, in the eyes of the legal advisers in the British Foreign Office, robbed his signature at Jammu on his Instrument of Accession of all validity. But in law (S. 6 of the act of 1935) its acceptance by the Governor-General was an indispensable part of the entire process. Mountbatten’s letter of acceptable is therefore, of decisive importance. Replying to Hari Singh’s letter of 26 October, forwarding the Instrument signed by him, Mountbatten wrote on 27 October: “Your Highness’ letter dated 26 October has been delivered to me by Mr. V. P. Menon. In the special circumstances mentioned by Your Highness my Government have decided to accept the accession of Kashmir state to the dominion of India. Consistently with their policy that in the case of any State, where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State, it is my Government’s wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people.” (White Paper on Jammu and Kashmir 1949, p. 46). This letter also recorded that the accession was a subject of “dispute”.

Mountbatten’s letter of acceptance itself contained the condition of reference of the issue of disputed accession to the people. Which is why the White Paper called it “purely provisional” and the Government of India’s Statement on 31 October 1947 mentioned “the conditions” of accession. Sir B. N. Rau said on 7 February 1951 that Kashmir had acceded “tentatively” (Vide the tabulation “The pledges” at pp. 134-131 of Vol. 1 of the writer’s The Kashmir Dispute – 27 such pledges are quoted at length.)

The letter was not an afterthought. It was conceived along with its condition, simultaneously with the accession. H. V. Hodson, former Reforms Commissioner, wrote a definitive account of transaction based on Mountbatten’s papers. He recorded that in the Defence Committee of the Cabinet “It was agreed that when the accession was accepted this should be subject to the proviso that a plebiscite would be held in Kashmir when the law and order situation allowed his. Lord Mountbatten suggested that this plebiscite should be on three choices: to join India, to join Pakistan, or to remain independent. He also suggested that before a plebiscite was held the future defence of Kashmir should be discussed by the two Dominions in the Joint Defence Council. The Prime Minister, Pandit Nehru, observed that the Government of India would not mind Kashmir’s remaining an independent country provided that it were within India’s sphere of influence.

“Although the Defence Committee took no decision on that morning that Kashmir’s accession should be accepted – which was strictly not its business—it is clear that by the end of its discussion this was treated as a foregone conclusion. Its actual decision apart from military directives, was to charge the Ministry of States with preparing a draft Instrument of Accession and a draft letter from the Government of India to Maharajah, recording the conditional acceptance of this Instrument, as justification for aiding in the restoration of law and order, provided that the will of the people of Kashmir on the question of final accession were ascertained when conditions allowed this to be done” (The Great divide; p. 454).

S. 6 of the Act of 1935 did not bar a conditional acceptance at all. V. P. Menon mentions in his Integration of Indian States that when any conditions were made “in covering letters” by some rulers on their accession, in the Instrument they signed, it was returned (p. 115). All the greater force then to the condition imposed later exceptionally in October in the unique case of Jammu and Kashmir. Mountbatten’s letter was a collateral document which formed an integral part of the Instrument of accession and rendered the accession conditional on the ascertainment of “the wishes of the people.”

A collateral document governs the formal document. A vendor who by a Deed of Conveyance sells his bungalow to a neighbour can validly retain a right of passage over the land by a collateral letter in order to reach his other property. Two authoritative works settle the matter beyond all doubt. “Transaction contained in more than one document: This is of very frequent occurrence whether in deeds or in contracts under hand, where the agreement is often to be gathered from correspondence passing between the parties.

“As to deeds the rule is that all the deeds relevant to the transaction are to be read together. The deeds need not be executed simultaneously, so long as the court, having regard to the circumstances, comes to conclusion that the series of deeds represents a single transaction between the same parties. If this is so, the series will be treated as one deed and of course on deed between the same parties may be read to show the meaning a sentence and be equally read, although not contained in one deed, but in several parchments, if all the parchments together in view of the court make up one document for this purpose. Thus the articles of association of a company may be read to explain the memorandum. So where there was a manifest error in a lease, the duration of the term differing in the habendum and reddendum, the counterpart might be looked at end of the two, lease and counterpart, construed together.

“Fletcher Moulton L.J. in a judgement which was approved on appeal to the House of Lords, said: Where several deeds form part of one transaction and are contemporaneously executed they have the same effect for all purposes such as are relevant to this case as if they were one deed. Each is executed on the faith of all the others being executed also and is intended to speak only as part of the one transaction, and if one is seeking to make equities apply to the parties they must be equities apply to parties they must be equities arising out of the transaction as a whole.” (Odgers’ Construction of Deeds and Statutes, 5th Edn. Pp. 58-59).

Volume 12 of the hoary Halsbury’s Laws of England hold, “when a contract is to be ascertained from a series of letters or documents the whole of the correspondence must, in pursuance of the foregoing rule, be looked at and, although two letters in the course of that correspondence may appear to contain a completed contract, the court will not hold the contract to be complete where subsequent letters show that certain terms had not been agreed.” (Volume 12; 4th Edn.,p 602, para 1469).

Kashmiris cannot be blamed for any wars launched by Pakistan nor do their rights derive from the “UN Resolutions” adopted after the Accession. What if that external body rescinds or abandons or ignores its resolutions? Their rights derive from a fundamental – a people’s right of self-determination – which is engrafted as a condition on the very act of Accession and continues to qualify and govern the Accession to the day. Article 370 of the Constitution is based on the Instrument of accession and explicitly mentions it. That binding condition will cease to exist only on its fulfillment by “a reference to the people” of the state. Elections to the state assembly, rigged or not, don’t fulfill the condition, otherwise Mountbatten would have mentioned “elections to the Assembly—and not “reference to the people” of a disputed accession. The only alternative legally and morally is an agreement on a settlement of a Kashmir dispute, between India and Pakistan which is acceptable to the people of Kashmir.

By A.G. Noorani