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The Rediff Special/ Arvind Lavakare
The Two Nation Theory: Some Misconceptions
A major conception still surprisingly prevalent, is that, in consonance with Jinnah's two-nation theory based on religion, the state of Jammu and Kashmir, with its predominant Muslim population, should have been annexed to Pakistan at the time of Partition itself.
The truth here is different. The truth is that His Majesty's Government's statement of June 3, 1947, setting out its plan for transfer of power provided that only British India (comprising provinces and certain other areas which were inside the administrative, legislative and judicial sphere of His Majesty's Government of India) would be divided into India and Pakistan on a communal basis. The princely states were to simply become independent and, with the withdrawal of British paramounty over them, the sovereignty of each of these states (some 560-odd in number) was to revert to the ruler.
In fact, the above statement of June 3, 1947, was specific by saying 'His Majesty's Government wish to make it clear that the decision announced about Partition relate only to British India and that their policy towards Indian states.... remains unchanged.' This text from official British documents hits for a six the wild contention of Josef Korbel that '...the basic pattern for accession by the Princely States to India was being decided exclusively on a communal basis' (Page 71 of his book Danger in Kashmir, 1954).
Moreover, it is a fallacy to believe that just because Kashmir's population was predominantly Muslim it would have acceded to Pakistan in any referendum that may have been held in that state in August 1947. As recorded by Alice Thorner in Far Eastern Survey No 15 of August 11, 1948, public opinion in Kashmir was 'sharply divided along political and religious lines. Both India and Pakistan had substantial support.' And in World Politics, No 3, of April 1949, Philip Talbott wrote of 'the tenacious resistance against Jinnah and Pakistan of Kashmir's largest political party, the Kashmir National Conference which was Muslim led and largely Muslim supported.'
While the Indian Independence Act of 1947 did provide of the existence of an independent princely state along with a separate India and a separate Pakistan, Lord Mountbatten, the Crown Representative, made it clear to the over 500 princes concerned that their choice lay, in reality, in opting for either of the two Dominions being created. For the purpose, he caused to be distributed a draft of the Instrument of Accession after he had addressed the Chamber of Princes on July 25, 1947. The Instrument was common for all in its basic, underlying framework.
The following is the text of the Instrument of Accession. The Maharaja of Kashmir signed it on October 26, 1947 and it was accepted by Lord Mountbatten, Governor-General of India, on October 27, 1947.
The Instrument of Accession
Whereas the Indian Independence Act, 1947, provides that as from the fifteenth day of August, 1947, there shall be set up an independent Dominion known as India, and that the Government of India Act, 1935, shall with such omissions, additions, adaptations and modifications as the Governor-General may by order specify, be applicable to the Dominion of India;
And whereas the Government of India Act, 1935, as so adapted by the Governor-General provides that an Indian State may accede to the Dominion of India by an Instrument of Accession executed by the Ruler thereof;
Now, therefore, I.... Ruler of.... State in the exercise of my sovereignty in and over my said State do hereby execute this my Instrument of Accession and
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 purpose of the Dominion shall, by virtue of this my Instrument of Accession, but subject always to the terms thereof, and for the purposes of the Dominion, exercise in relation to the State of... (hereinafter referred to as 'this state') 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 (which act as so in force is hereinafter referred to as 'the Act').
2. I hereby assume the obligation of ensuring that due effect is given to the provisions of the Act within this State so far as they are applicable therein by virtue of this my Instrument of Accession.
3. I accept the matters specified in the Schedule hereto as the matters with respect to which the Dominion Legislature may make laws for this State.
4. I hereby declare that I accede to the Dominion of India on the assurance that if an agreement is made between the Governor-General and the Ruler of this State whereby any functions in relation to the administration in this State of any law of the Dominion Legislature shall be exercised by the Ruler of this State, then any such agreement shall be deemed to form part of this Instrument and shall be construed and have effect accordingly.
5. The terms of this my Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947, unless such amendment is accepted by an Instrument supplementary to this Instrument.
6. Nothing in this Instrument shall empower the Dominion legislature to make any law for this State authorising the compulsory acquisition of land for any purpose, but I hereby undertake that should the Dominion for the purpose of a Dominion Law which applies in this State deem it necessary to acquire any land, I will at their request acquire the land at their expense or if the land belongs to me transfer it to them on such terms as may be agreed, or in default of agreement, determined by an arbitrator to be appointed by the Chief Justice of India.
7. Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution.
8. Nothing in this Instrument affects the continuance of my sovereignity in and over this State, or save as provided by or under this Instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.
9. I hereby declare that I execute this Instrument on behalf of this State and that any reference in this Instrument to me or to the Ruler of the State is to be construed as including a reference to my heirs and successors.
Given under my hand this... day of ...
I do hereby accept this Instrument of Accession.
Dated this... day of.....
The Texas Parallel
When Mexico separated from the Spanish empire and set up an independent Republic, Texas was an integral part of the new state. Later, Texas revolted against the Mexican authorities and established itself as an Independent entity which was recognised by the US and the principal powers of Europe.
In 1844, the government of Texas, threatened by the menace of predatory incursions from Mexico, requested the government of the USA to annex the state. After this proposal was sanctioned by the American Congress in a joint resolution in March 1845, America sent an army to defend the western frontiers of Texas.
When Mexico strongly protested against this as a violation of the rights of Mexico, the reply of the government of USA did not consider it so; the USA, moreover, did not consider the joint resolution as giving any just cause or offence to Mexico since the Republic of Texas was an independent power, owing no allegiance to Mexico and constituting no part of Mexico's territory or rightful sovereignty and jurisdiction.
In the Texas case, it was not contended that the annexation was by force or fraud. Justice Anand says the allegation cannot be substantiated in the parallel case of Kashmir either.
Two points need to be noted with reference to the Instrument of Accession.
Firstly, it is erroneous to believe that when the ruler of Kashmir signed it, he bartered away forever the right of the people of Jammu and Kashmir to determine their future status. In this context it is critical to note that the maharaja's action, performed without prior consulation of the state's subjects, was perfectly legal under the British system of governance by sovereign monarchy.
Secondly, clause (7) of the Instrument of Accession did not commit the princely state of Jammu and Kashmir to acceptance of any future constitution of India.
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