Accession:  Some History

The  State of J&K had an area of 2,22,236 sq kms in 1947. Of this only  46% is in India’s possession today, the balance is under forceful  occupation of Pakistan and China–see table 1 below.

Area  ruled by Shriman Indar Mahander Rajrajeshwar Maharajadhiraj Shri Hari  Singh Ji Jammu and Kashmir Naresh Tatha  Tibet adi Deshadhipathi Ruler of Jammu and Kashmir (King’s title 1 pg  382).

* http://www.jammu-kashmir.com/basicfacts/tour/figures_ii.html.

Prior  to partition in 1947, British rule over India comprised two separate  geographical regions. One comprised of various provinces administered  by the Viceroy of India (constituted more than 60% of the land area  of the Country referred to as British India). The other comprised  provinces ruled by Maharajas, Princes, Nawabs etc. There were 562  Princely states of which 327 were petty states. All of these were  collectively designated as "Indian States”. For these States  the British looked after the areas of defence, foreign policy and  communications whilst they were allowed governance in internal  matters such as law and order, civil liberties, health, education and  economic development. The State of J&K was one of them.

On  20/2/1947, His Majesty's Government announced that British India  would become independent. Facing the state’s rulers on 11/7/1947  Mountbatten said, ‘The Indian Independence Act releases the States  on 15th  August from all their obligations to the Crown. The States have  complete freedom-technically and legally they are independent’. 4 pg  411 At a meeting held on 25/7/1947 Mountbatten advised the princes  that they should accede to one of the two dominions, keeping in mind  the ‘geographical contiguity of their States’, while surrendering  power over three specified subjects, without any financial liability.

By  14/8/1947, most states signed the IOA.

On  12/8/1947 the Maharaja proposed a Standstill Agreement with  India/Pakistan on matters pending (existing arrangements to continue)  his final decision regarding the future of the State. Pakistan  accepted whilst India asked the Maharaja to send its representative  for discussions. The Pakistan Government started putting pressure on  the Maharaja on join Pakistan. It also started an economic blockade  from Pakistan.

Whilst  the Government was pleading special reasons for inability to supply  Kashmir with essential commodities, ‘Dawn, the Muslim League’s  official organ, wrote on August 24, 1947, “The time has come to  tell the Maharaja of Kashmir that he must make his choice and choose  Pakistan”. Should Kashmir fail to join Pakistan, “the gravest  possible trouble would inevitably ensure.”1 pg70 Pakistan had made its intent clear.

Q.  Can Maharaja Hari Singh be accused of procrastinating on whether to  join India or Pakistan?

A. The Maharaja is criticized for delay in taking a decision on  accession but ‘few have cared to ponder on the implication of the  very first advice given by Mountbatten to the Maharaja not to join  any Constituent Assembly until Pakistan set up her own’. 7 pg 65

Hari  Singh’s words at the London Round Table Conference of 1931 give an  idea of where his affinities lied. ‘As Indians and loyal to the  land where we derive our birth and infant nature, we stand as solidly  as the rest of our countrymen for your land; enjoyment of a position  of honor and equality in the British Commonwealth of nations’. 9 He also proclaimed in front of the British crown, “I am an Indian  first and then a Maharaja”. http://www.statetimes.in/news/rich-tributes-paid-to-maharaja-hari-singh-2/.  Such statements did  not endear him to the British.

‘Twice  in September 1947 the Maharaja offered accession to India on the  conditions that his reservations with respect to Sheikh Abdullah be  respected. On both occasions Nehru insisted that Abdullah be released  to head a popular government. As Hari Singh did not accept Abdullah  the initiative proved abortive’. 8 pg 91

Q.  Why did Nehru dislike the Maharaja?

A.  Briefly KS Bajwa wrote, ‘Abdullah launched the ‘Quit Kashmir  Movement’ against Dogra rule. He was tried for treason and jailed  for nine years on 20/5/1946. As a lawyer Nehru wanted to represent  Abdullah but was stopped as he crossed into the state at Kohala.  Nehru never forgave Maharaja Hari Singh for this action. On account  of Nehru’s friendship with Abdullah the Maharaja did not trust  Nehru’. 8 pg 90

Next  in October 1947, Jinnah’s personal envoy, Maj Shah, came to meet PM  of J&K M C Mahajan to negotiate accession. Mahajan asked for  blockade to be lifted but Jinnah refused pending settlement of  accession issue. Failing in his efforts Shah warned of dire  consequences. At that point, the Maharaja seemed tentative on  accession to India. Guruji Golwalkar, Sarsanghchalak of the  RSS, met the Maharaja on October 17, 1947 and later apprised Sardar  Patel of his favorable attitude.

Meanwhile  some 5,000 Pathan tribesmen invaded the State, on the night of 21/22  October; looting, killing and raping along the way. The Maharaja  wanted the Indian Army to drive out the invaders for which he needed  to sign the IOA. This he did on 26/10/1947 which was accepted the  very next day by India’s Governor General, Mountbatten. Subsequent  to Accession, Lord Mountbatten wrote a personal  letter to the Maharaja ‘it is my Government’s wish that, as soon as law  and order is restored in Kashmir and its soil cleared of the invader,  the question of the State’s accession should be settled by a  reference to the people’. 1 pg 76

However,  Pakistan refused to recognize this accession.

Critics  argue that this stipulation made the Accession conditional. ‘Justice  A.S. Anand believes that this statement does  not and cannot affect the legality of the accession which was sealed by India’s  official acceptance. This statement is not a part of the IOA. Mr  M.C. Mahajan, the former Chief Justice of India observed thus: The  Indian Independence Act did not envisage conditional accession. The  Dominion’s Governor-General had the power to accept the accession  or reject the offer but had no power to keep the question open or  attach conditions to it’.1 pg 76

In  the early hours of 27/10/1947  began an operation that  had  never occurred in the history of warfare before. On 7th November  Indian troops won the battle of Shaltang, thereby removing all  threats to Srinagar. Three days later, Baramulla was recaptured. The  process of retreat by the enemy on all fronts began.

The  Maharaja issued an Order on 30/10/1947 appointing Sheikh Abdullah as  the Head of the Emergency Administration. In November 1947 the  Government advised the Maharaja to appoint Abdullah as Prime Minister  on the basis of model adopted in Mysore. The Conference leaders  rejected the model and wanted power to be transferred to them without  any reservations.

On  2/12/1947, Nehru wrote to Maharaja Hari Singh asking Sheikh Abdullah  to be appointed as the Prime Minister of J&K and who should be  asked to form the government. With this letter, Nehru took over the  shaping of India’s Kashmir policy so far played by Patel as  Minister of States. On 5/3/1948 the Maharaja appointed an Interim  Government with the Sheikh as Prime Minister.

Indian  Army soon realized that the only way to completely remove the raiders  was by attacking their bases and sources of supply in Pakistan. On  22/12/1947,  India warned Pakistan that unless Pakistan denied her assistance and  bases to the invaders, India would be compelled to take such action.

At  that critical stage,  Lord Mountbatten urged PM, Jawaharlal Nehru, about “the  overwhelming need for caution and restraint”. He stressed, “How  embroilment in war with Pakistan would undermine the whole of Nehru’s  independent foreign policy and progressive social aspirations.”1pg  81 On Mountbatten’s advice, Nehru decided to lodge a complaint to  the United Nations Security Council. That was done on 1/1/1948.

On  5/1/1949 the U.N. Commission for India and Pakistan proposed a  resolution whereby the future of J&K would be determined by a  democratic method of a plebiscite conducted by India under the UN’s  auspices but after Pakistan withdrew its troops from the State and  disbanded Azad Kashmir forces. India  declared a ceasefire on 1/1/1949, occupied areas were not recovered.

Q.  Why has India not held a plebiscite in J&K?

A.  U.N. resolution provides that Pakistan was to withdraw its troops  from the State (Mirpur, Muzzafarabad,  Gilgit  and Baltistan (POJK). Since Pakistan has not withdrawn its troops,  India could not conduct a plebiscite. Note that the U.N. did not  contest accession of the princely state of J&K to India.

Also  Lt Gen N S Malik wrote, ‘Similarly  the so called “Two Nation Theory”, under whose umbrella Pakistan  was formed, applied only to British ruled India and not the princely  states, and hence a state being Muslim majority did not disqualify it  from joining Indian Union. (Note that Kapurthala  in Punjab was a Muslim Majority State). In  the same context, referendum in J&K is illegal as it was not  agreed by Muslim League to hold referendum in princely states but  left to their rulers to accede to India or Pakistan, contiguity being  a criteria for the same.’ 10

Note  that Nehru's promise of plebiscite was made in his All India Radio  broadcast of 23/12/1949. However, according to former CJI M C Mahajan  the IOA  and the Indian Independence Act 1947, of the British Parliament  gave  no legal or constitutional authority to Nehru or Mountbatten, the  then governor general, to make that promise. Justice A S Anand  presented a series of arguments to conclude, ‘This  position brings one to the conclusion that to hold a plebiscite would  be repugnant to the Constitution of India and J&K’. 1pg  85

By  the Simla Agreement of 1972 India and Pakistan decided to settle all  differences by peaceful means through bilateral talks, the ceasefire  line in J&K would become the Line of Control.

Externally,  India has not used law, international institutions and inherent  strength to make Pakistan vacate POJK and failed to shut out  Pakistan’s evil eye on J&K. Internally, the Government has  failed to do plain speaking with separatist leaders and politicians  of the Valley. Consistency in approach and firm attitude are missing.

Q.  Did the British provide tacit support to Pakistan in POJK and  Gilgit/Baltisthan?

A.  In order to secure their strategic interests post Second World War,  Britain initially, wanted that J&K to go to Pakistan. But,  Maharaja Hari Singh thwarted their intent by signing the IOA. Since  then the British tried to create doubts over J&K’s Accession.  Brig Cheema wrote in Indian Defence Review (31/5/14), ‘Apropos  the tribal invasion by Qabalis (tribals) in October 1947, Pakistan  was quick to prop up an ‘Azad Kashmir’ government in Muzzafarabad  on 25 October, i.e. even before the Indians had militarily intervened  in Kashmir (27 October). Around the same time, the strategic  Gilgit-Baltistan region of North Kashmir had also been taken over  through a clinical coup engineered by English officers favoring  Pakistan’. Source http://www.indiandefencereview.com/news/article-370-and-nation-building-a-reality-check/.

Q.  But why was J&K important to Pakistan?

A.  Lt Gen N S Malik wrote, ‘J&K forms the head of the Indian sub  continent, and has been the traditional trade route of Central and  South Asia to the East and Tibet, generally called the ‘Silk  Route’. It is bounded by more countries than any other state of  India; in the North East with Tibet, and further North with Xinjiang  province of China, in the North West with the Wakhan corridor of  Afghanistan, in the West with the Khyber Pakhtunkhwa province and  further South with Punjab of Pakistan. This geographic layout is  strategically so important that no power of the world wants to remain  away from the area, as it gives them access to the sensitive areas of  the neighbouring countries’.10 Source http://www.indiandefencereview.com/news/solution-to-j-k-problem-lies-in-new-delhi/.

Q.  What is the importance of Aksai Chin (part of undivided J&K) to  China?

A.  The  Sinkiang and Tibet plateaus constituted a wedge into the Himalayas  and were considered by China to be a bulwark against communist  influence in Asia. They wanted to grab those areas that allowed it to  establish roads between Sinkiang and Tibet. With the undetermined  border between Soviet Turkestan and Sinkiang a source of friction and  the tension with Russia, China needed an effective line of  communication with Sinkiang through Akshai Chin.

Lt  Gen N S Malik wrote, ‘China is spending huge sums to build  infrastructure through highways connecting Tibet to Xinjiang through  the Chinese occupied Akshai Chin plateau, and Xinjiang to Pakistan  via the Karakorum highway through the Kunzreb pass. This highway then  connects Gwadar port on the Arabian Sea, giving warm water port and  access to the Indian Ocean to China. Its importance can be visualized  in that China trade can avoid the bottleneck of Malacca straits as  also cuts down turn round to the interior provinces of China.’10 See map 1.

Map  1 - Courtesy: University of Texas

Q.  Can the Accession of J&K to India be reversed?

A. No. Clause 5 of the IOA reads, ‘The terms of this instrument of  accession shall not be varied by any amendment of the Act or of the  Indian Amendment Act, 1947 unless such amendment is accepted by me by  an Instrument supplementary to this Instrument’.  Further Section 3  of the State Constitution that came into effect from 26/1/1957 says,  ‘The State of J&K is and shall be an integral part of the Union  of India’. Section  147 of State Constitution says that this Section is not  amenable.