Chapter 3: The Accession

On the eve of independence there were more than 560 Princely States which were semi-independent and which were protected by the United Kingdom by the doctrine of paramountcy. This meant that the King of England was the paramount lord as far as these Princes were concerned and in return for the fealty pledged by them, the King Emperor gave them protection. When the Indian Independence Act was passed by the British Parliament, British power was transferred to the people of India as far as British India was concerned and Britain put an end to paramountcy, leaving it to the Princes to arrive at such arrangements as they thought proper with the Governments of India and Pakistan. It is necessary to record all this in some detail to refute Pakistan's allegation that Kashmir's accession to India by the Maharaja was not legal. At the time of Partition, Pakistan was a new State which came into existence, but the present Government of India was the successor government to the Government of the United Kingdom. It was provided that it was open to every princely State to accede either to India or to Pakistan. The law did not provide that the Instrument of Accession could be conditional. Once the accession was accepted (as it was done in Kashmir by the Governor General of India Lord Mountbatten), the particular Princely State became an integral part of one or the other of the two Dominions.

Significantly, there was no provision for consulting the people of the Princely state concerned. Nor was there any provision that the accession had to be ratified by ascertaining the wishes of the people of the acceding State. Several Princely States acceded under this law to India or Pakistan. It was never suggested that these accessions were, in any way, incomplete or require some action to be taken before they became conclusive. The partition of India was confined to British India alone and in drawing the lines of the frontier, the question of Muslim majority provinces on North West and Eastern India was taken into consideration only with regard to British India. There was no question whatsoever of taking into account the religious complexion of the population of any Princely States. Whether a Princely State should accede to India or Pakistan was left to the choice of the ruler of that State Pakistan's proposition that the State of Jammu and Kashmir, by reason of its large Muslim majority and of the fact that Pakistan came into existence as a Muslim State, should naturally form part of Pakistan, is not tenable. This is wholly wrong in view of the legal and constitutional position.

CABINET MISSION MEMORANDUM

The British Government had made it quite clear that partition was only of British India and that this principle did not apply to those States such as Kashmir and several hundred others, which were ruled by Indian Princes. The British Government's announcements of 3 June, 1947 said: "His Majesty's Government wish to make it clear that the decisions announced (about partition) relate only to British India and that their policy towards Indian States contained in the Cabinet Mission Memorandum of 12 May, 1946, remains unchanged."

The Cabinet Mission's Memorandum said: "His Majesty's Government will cease to exercise power of paramountcy. This means that the rights of the States, which flow from their relationship to the Crown, will no longer exist and that all the rights surrendered by the State to the paramount power will return to the States. Political arrangements between the States on the one side and the British Crown will thus be brought to an end. The void will have to be filled either by the States entering into a federal relationship with the successor government or governments in British India or, failing this, entering into particular political arrangements with it or them.''

The provision for accession made in the Government of India Act of 1935, as adapted under the Independence Act of 1947, says: "An Indian State shall be deemed to have acceded to the Dominion if the Governor General has signified the acceptance of an Instrument of accession executed by the Ruler thereof." None of the provisions of these Acts which created the Dominions of India and Pakistan can be questioned by India, Pakistan or the United Kingdom which were parties to the agreement.

It was entirely for the ruler of Jammu and Kashmir to decide, taking all factors into consideration - the factors of contiguity, of communications, of economics and others - whether it would be beneficial for the State to be part of one Dominion or the other. The question of religion did not come into play at all. The people of the Princely States, particularly Kashmir, although they suffered from many other disabilities and infirmities, did not suffer the disastrous consequences of religious hatred or intolerance. Hence, where is the substance in the contention that the accession of Jammu and Kashmir was not complete and absolute because the people of that State had not been given opportunity to express their choice? In fact, the people of the State have had successive elections in which, of their own free will, they elected 75 members to the State Assembly. Only recently, elections could not be held because of terrorist activities engineered by Pakistan.

Did not Pakistan recognize the Government of the Maharaja of Jammu and Kashmir? Did it not enter into a Standstill Agreement with him by the exchange of telegrams on August 12 and 16,1947 ? International law does not require that the party to an agreement should look behind a recognized government with whom it contracts to see that the Agreement had been arrived to by prior consultations with the people. In fact, the accession was also supported by the National Conference, the largest political party in Kashmir. To quote Sheikh Abdullah who was then leader of the National Conference.

"When the raiders were fast approaching Srinagar, we could think of only one way to save the State from total annihilation: asking for help from a friendly neighbor. The representatives of the National Conference, therefore, flew to Delhi to seek help from the Government of India but the absence of any constitutional ties between our State and India made it impossible for her to render any effective assistance in meeting the aggression...since people's representatives themselves sought an alliance, the Government of India showed readiness to accept it. Legally, the Instrument of Accession had to be signed by the ruler of the State. This the Maharaja did."

The Governor General, Lord Mountbatten, accepted the Instrument of Accession the next day on October 27,1947. The Prime Minister of India wrote to the Prime Minister of Pakistan on December 22, 1947, requesting Pakistan not to give aid or assistance to the raiders and not to prolong the struggle. The Prime Minister of Pakistan replied eight days later thus: "As regards the charges of aid and assistance, the Pakistan Government emphatically repudiate them. On the contrary, the Pakistan Government have continued to do all in their power to discourage the tribal movements by all means short of war."

COMPLAINT TO THE SECURITY COUNCIL

India approached the Security Council on January 1, 1948, and said: "Such a situation now exists between India and Pakistan owing to the aid which invaders, consisting of nationals of Pakistan and of tribesmen from the territory immediately adjoining Pakistan on the North West, are drawing from Pakistan for operations against Jammu and Kashmir, a State which has acceded to the dominion of India and is part of India... The Government of India request the Security Council to call upon Pakistan to put an end immediately to the giving of such assistance which is an act of aggression against India."

It is necessary to note that India was the complainant before the Security Council, and that India complained of aggression by Pakistan. On January 15, 1948, the Foreign Minister of Pakistan again emphatically denied that the Pakistan Government was giving aid and assistance to the invaders or had committed any act of aggression against India. On the contrary, the Foreign Minister stated his government had continued to do all in its power to discourage the tribal movement by all means, short of war. He stated that all allegations made by the Indian Government that the Pakistan Government was affording aid and assistance to the tribal forces, or that these forces had bases in Pakistan territory or were being trained by the Pakistan Army, were utterly unconfirmed. Pakistan never contended that India had no right to be there.

In India's view, this categorical denial by Pakistan of being behind the tribal raid is the most important and significant aspect of the whole Kashmir issue. It is significant that, at that stage, Pakistan never tried to justify its presence in Kashmir or to claim any right to be there. Pakistan was quite aware of the fact that its presence in Kashmir was contrary to International Law and was fully conscious of the illegality of its action. That is why Pakistan could not admit its presence in Kashmir and that is why there was a total and straight denial of its presence.

ACCESSION LEGAL

Thus, the plea later put forward that Pakistan went to Kashmir in support of a liberation movement is clearly an after thought designed to create a false moral justification for its invasion of Kashmir. This was not mere equivocation but a deliberate falsehood.

The State's accession to India has never been challenged by the UN Commission for India and Pakistan or the Security Council. As early as 4 February, 1948, the US Representative in the Security Council declared: "External sovereignty of Jammu and Kashmir is no longer under the control of the Maharaja. With the accession of Jammu and Kashmir to India, this foreign sovereignty went over to India and is exercised by India and that is how India happens to be here as a petitioner."

Similarly, the representative of the USSR said at the 765th meeting of the Security Council: "The question of Kashmir has been settled by the people of Kashmir themselves. They decided that Kashmir is an integral part of the Republic of India."

The legal adviser to the UN Commission came to the conclusion that the State's accession was legal and could not be questioned. This fact was further recognized by the UN Commission in its report submitted to the UN in defining its resolutions of 13 August, 1948, and 5 January, 1949. Both these resolutions were accepted by India and Pakistan.