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Forgotten day in Kashmir's history

March 08, 2004

Except for the inaugural Mumbai Marathon, February 15, 2004 passed off in the country as usual -- with controversies about this or that, with corruption cases and with episodes of rape and riots and robberies.

Totally forgotten was that on that very day, 50 years earlier, the Jammu & Kashmir Constituent Assembly unanimously ratified the state's accession to India. Thus, February 15, 2004 marked the golden jubilee of the day that witnessed J&K's accession to India being signed, sealed and delivered -- not by a Hindu maharaja ruling over a population of which 77 percent were Muslims, but by a democratically elected constitutional body all of whose 75 members were die-hard followers of a colossal Muslim leader called Sheikh Abdullah.

That decision of the J&K Constituent Assembly was an extraordinarily bold one for no other reason than it defied the then mighty Security Council of the United Nations. The latter had, 61 months earlier, been manipulated by scheming Britain into passing a perverse resolution whereby the accession of J&K to India or to Pakistan was to be decided only by a plebiscite although the state had already legally acceded to India through the Instrument of Accession in terms of Britain's India Independence Act, 1947.

The J&K Assembly's defiance of the UN was based on principle. India had taken the J&K issue to the Security Council to seek a decision not on its accession but only to prevent Pakistan from continuing to give assistance in men and materials to those raiders from its territory who had invaded the former princely state and wouldn't go back to Pakistan even after J&K had chosen to join India. India had wanted the UN to exercise its authority and instil sense into Pakistan so as to prevent danger to international peace. Instead, the world body had chosen to offer Pakistan an official route to hoist its flag in Srinagar.

As Sheikh Abdullah himself stated at the Security Council's meeting number 241 held on February 5, 1948, 'Whether Kashmir has lawfully acceded to India is not the point at issue' and appealed that 'The Security Council should not confuse the issue.' He also reminded the Council that when accepting J&K's accession to India, its prime minister, had assured that 'once the country is free from the raiders, marauders and looters, this accession will be subject to ratification by the people.' That ratification by the people demanded a constitution created, not by a maharaja (as was done through the J&K Constitution Act, 1939), but by the people, of the people and for the people. And since Clause 7 of the Instrument of Accession of 1947 did not commit J&K to adhere to the Indian Constitution then being debated in Delhi, a J&K Constituent Assembly was set up through democratic elections that were witnessed by international observers and were conducted on the basis of universal adult franchise -- never mind that Sheikh Abdullah's National Conference party was the only in the fray with its insignificant rival, the Praja Parishad, deciding to stay away.

So momentous an event was the creation of this J&K Constituent Assembly that the day of its first meeting on October 31, 1951 was described by Sheikh Abdullah in his opening address as the 'day of destiny... a day which comes only once in the life of a nation.' (As cited on page 119 of Justice Anand's book The Constitution of J&K -- Its Development & Comments third edition. 1998, Universal Law Publishing Co.Pvt.Ltd, New Delhi). Abdullah's speech also stated that one of the four main objects and functions of the Constituent Assembly was 'to declared its reasoned conclusions regarding accession and the future of the State." He also 'enumerated the alternatives: accession to India; accession to Pakistan or complete independence.' (ibid, page 119)

Accession to India? Complete independence? Were any of these two at all possible once the J&K maharaja had signed the Instrument of Accession on October 26, 1947 in favour of India. Or was Sheikh Abdullah merely indulging in rhetoric?

Justice Anand believes that either of the two alternatives was indeed legally feasible. Opting for Pakistan meant i. India abrogating Article 370 of its Constitution with the required consent of the J&K Constituent Assembly, and ii. India ceding part of national territory. The former would have been readily allowed by Nehru and the latter could be done by amending the Indian Constitution as was ruled by the Supreme Court in 1960 in its advisory opinion that was sought after India had agreed in 1959 to transfer some territory to Pakistan to settle certain boundary disputes. (Berubari Special Reference AIR 1960 SC 845).

Complete independence was also possible according to Justice Anand. He writes, 'If the State desired that it should be completely free of the Indian Union, it could request the President of India to issue an order under Article 370, making both that Article and the Order of 1950­ inoperative. But the Instrument of Accession could not be abrogated; so, if the power in matters of Defence of the State remained with the Union of India, the State could become a protectorate of India.' (ibid, page 120).

Neither union with Pakistan nor complete independence was the desire of the then people of J&K as expressed in the voice of their leadership represented in the 75-member Constituent Assembly. On that memorable day of February 15, 1954, 64 of the assembly members who were present cast a unanimous vote ratifying the state's accession to India. It was proof that the people of J&K were ideologically unreservedly committed to India. Incidentally, the unanimous vote came even as the towering Sheikh Abdullah lay in jail, accused of allegedly conspiring against the state.

On that day, premier Bakshi Ghulam Mohammed declared amidst cheers, 'We are today taking the decision of final and irrevocable accession to India and no power on earth could change it.' (The Hindu, February 17, 1954). Two months later, President Rajendra Prasad reiterated that view when he said, 'any break in the relationship (of Kashmir with India) was inconceivable." (Anand, ibid, p.127).

Mere accession to India was not enough for the people of J&K. There was a legal hitch to a fuller, more integral, bonding. In the case of Sayee versus Ameer Ruler Sadiq Mohammed Abbari Bhawalpur the Supreme Court made it clear that the effect of Instrument of Accession was not to make any State a 'part' of the Dominion. [(1952) 1 AII ER 326, 328-329]

This legal hitch was removed by the J&K Constituent Assembly in the state Constitution it adopted on November 17, 1956. It framed Section 3 in that Constitution to say, 'The State of Jammu and Kashmir is and shall be an integral part of the Union of India.' As insurance for life, this Section 3 was immune from any amendment at any time.

Judged by its failure to convince the international community about our ironclad claim on the whole of J&K all these years and the apparent willingness today to cut a deal on J&K 'to the satisfaction of Pakistan' (as stated in the Islamabad Declaration), our entire political leadership -- along with political analysts and Kashmir 'experts' -- would seem to have forgotten the very existence of that Section 3 -- forgotten just like the golden jubilee of February 15, 2004 was the other day.

Just imagine some 550 disparate sovereign states, big and minuscule, persuaded to accede to India almost in one go, without much of a murmur, and the country hasn't earmarked a day to commemorate the epoch-making event that prevented the disintegration of India as we have known and built in more than half a century since then. Perhaps our nation has been tuned to celebrate Valentine's Day but not an Accession Day.

Tailpiece: All those who today advocate autonomy short of azaadi to J&K or even independence ought to be reminded of two observations of Bakshi Ghulam Mohammed. In a statement in August 1953, he said that 'an independent Kashmir' under the patronage of the USA would be a threat to the freedom and independence of Indian and Pakistani people. And in September 1962 he said, 'Kashmir cannot remain independent. Geographically the situation does not warrant it at all. Moreover, Kashmir is a poor state and cannot stand on her own feet.'

Arvind Lavakare

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Number of User Comments: 9

Sub: a problem with no solution

Kashmir is and will always be the bone of contention between India and Pakistan.I think the best solution would be converting the loc to international ...

Posted by Anil Kumar Nayak

Sub: Forgotten day in Kashmir's history

The virdict of people, in India, does not count. It is the whim of corrupt politicians who count. Indian leaders will not rest unless they ...

Posted by Yogesh Datta

Sub: Wonderful indeed !!

Thanks a lot Arvind ji. Sometimes, it really puzzles me as to why the Indian leadership and intelligentsia has not been able to assert in ...

Posted by Raghav Mittal

Sub: KASHMIR - Always Indian

I think by raising such issues of 'Accession Day', 'Autonomy' etc. we are resurrecting seccessionist thoughts. Let's instead, talk about how the existing scenario in ...

Posted by shekhar

Sub: A little late

Since the author knew all this, he should have written the column a month ago to raise awareness, instead of writing now and scoring brownie ...

Posted by Ashish


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