15 November 2014


Abhijit Bhattacharyya

Let us be real and follow law and logic to counter the lethality of the deliberate mischief being resorted to by actors of all hues with mala fide intent. Pakistan became independent on August 14, 1947. India followed suit on August 15, 1947; Jammu and Kashmir, which was a princely state till Partition in 1947, was given the choice by the British to opt for either India or Pakistan or to remain independent.

Pakistan invaded Srinagar in October 1947. Later that month, Independent India received a “desperate appeal” for help from the maharaja of Jammu and Kashmir, as its independence was being violated by an aggressive and violent Pakistan. The maharajaappealed for help to Governor General Mountbatten, who agreed to assist on condition that the maharaja accede to India. The maharaja of Jammu and Kashmir signed the Instrument of Accession to India on October 26, 1947, followed by its acceptance by New Delhi on the next day.

In spite of being a monarchy, Jammu and Kashmir had a constitution in place since 1939. And defining the powers of the maharaja of the Jammu and Kashmir State and his jurisdiction, Section 4 of that constitution clearly and emphatically said that the maharajawas “an absolute Monarch” in whom are vested all the powers in relation to the State: “The territories for the time being vested in His Highness are governed by and in the name of His Highness, and all rights, authority and jurisdiction which appertain or are incidental to the government of such territories are exercisable by His Highness...”

Section 5 too clarified: “Notwithstanding anything contained in this or any other Act, all powers, legislative, executive and judicial, in relation to the State and its government are hereby declared to be and to have always been inherent in and possessed and retained by His Highness ...” Hence, when the maharaja acceded to India, the act was legal, bona fide, unequivocal and irrevocable, in accordance with the law of the independent State of Jammu and Kashmir as well as with international conventions and laws guiding relations between sovereign States.

V.P. Menon, perhaps the most brilliant civil servant of post-Independent India, who was in the thick of the Jammu and Kashmir accession to India story, had this to say on the subject: “Personally when I recommended to the Government of India the acceptance of the accession of the Maharaja of Kashmir, I had in mind one consideration and one consideration alone, viz. that the invasion of Kashmir by the raiders was a grave threat to the integrity of India. Ever since the time of Mahmud Ghazni, that is to say, for nearly eight centuries, with but a brief interval during the time of the Mughal epoch, India has been subjected to periodic invasions from the north-west.” The far-sighted Menon’s further observations should be a lesson for all those who wish to be in charge of India’s sovereignty and independence: “Mahmud Ghazni had led no less than seventeen of these incursions in person. And within less than ten weeks of the establishment of the new State of Pakistan, its very first act was to let loose a tribal invasion through the north-west. Srinagar today, Delhi tomorrow. A nation that forgets its history and its geography does so at its peril.” Menon was bang on target to conclude thus: “If the invasion by the raiders had not taken place, I can say in the face of any contradiction that the Government of India would have left Kashmir alone.” After accession to India, Jammu and Kashmir found its position among the states of India through special provisions in the Constitution of India which came into effect on January 26, 1950.

The final stamp of the acceptance of Jammu and Kashmir as an integral part of India was marked by the promulgation of the constitution of Jammu and Kashmir itself on January 26, 1957, the preamble of which stipulated: “We, the people of the State of J&K, having solemnly resolved, in the presence of the accession of this State of India, which took place on 26th day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part of India as an integral part thereof...”

What makes Jammu and Kashmir an integral and inseparable part of India are the inviolable and irrevocable sections of the constitution. Thus, whereas Section 3 reads, “The State of J&K is and shall be an integral part of the Union of India”, Section 5 clarifies further that “The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the Provisions of the Constitution of India.” The final icing on the cake is Section 147 of the amendment of the Constitution: “An Amendment of the Constitution may be initiated... Provided... that no... amendment seeking to make any change in...the provisions of sections 3 and 5... shall be introduced or moved in either House of the Legislature” of Jammu and Kashmir.

Let us then be real. Three legal documents — of October 26, 1947, when Jammu and Kashmir acceded to India; the promulgation of the Constitution of India on January 26, 1950 and the coming into being of the constitution of Jammu and Kashmir on January 26, 1957 — all have clearly and categorically, legally and constitutionally, made Jammu and Kashmir an integral part of India. And yet some congenital traders of eternal conflict, belonging to a foreign country, who have nothing to do with India and its states, go on harming the safety and security of India.

And finally, when both the constitutions, of India and of Jammu and Kashmir, have been created and implemented by “We, the people”, why are outsiders crying hoarse and spreading canards about the genuineness of the legal bond between New Delhi and Srinagar? When will the terror-ridden and militant-infested western neighbour of India realize the futility of its endeavours to take Jammu and Kashmir away by force? Do they want to venture on a ‘1,000 year war’ enterprise, like that of the foreign invaders who had attacked India from the north-west frontiers in the past? Is that possible? Do they think that the political geography of 21st-century India is as fragile as it was during the middle ages? If they think so, let us get real once more. That idea is totally misplaced.

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