J&K's status: Don't repeat history's mistakes

There has been talk recently about a “permanent solution” in Kashmir, referring to some political and other developments vis-à-vis the 1952 Delhi Agreement. But it’s far more relevant to focus on the Constitution, and less on the polity, beliefs and actions related to the “K” saga. The reality first. Once a nation has a Constitution, it’s only axiomatic that its polity functions under this supreme law. In other words, the Constitution shapes a nation’s polity, not the other way around. Fortunately, India’s strength and stability emanate from it’s citizenry’s determination to give the Constitution a chance, a few ignorant politicians’ tantrums notwithstanding. The weakness of India’s neighbours, in contrast, stems from the repeated tweaking of their basic law by a succession of arrogant rulers. Therefore, when Jammu and Kashmir acceded to India on October 26, 1947, it was just like one of 565 princely states, spread across the subcontinent. Collectively they were defined as “Indian states” vide the Government of India Act of 1935, that controlled an overall 40 per cent of the land and 25 per cent of the population of South Asia. Although none of these princely states was a part of British India, which comprised the remaining 60 per cent of land and 75 per cent of South Asia’s demography, all of them were ordained to lose their “independent” status once British India was divided into two independent states — India and Pakistan — in August 1947.

Second, when the two newly-independent nations of India and Pakistan came into being in August 1947, neither had a Constitution. They were born vide the Indian Independence Act 1947, which was introduced in the British Parliament on July 4, 1947 and which received the royal assent on July 18, and came into force that date itself. The rebirth of “British India”, as two independent states of India and Pakistan, was not linked to the 565 princely states as these were not a part of British India. The Indian Independence Act 1947 declared the lapse of the British Crown’s suzerainty over India vide Section 7(1)(b). “As from the appointed day... the suzerainty of His Majesty over the Indian states lapses...”, thereby making them fully independent. However, this independence understandably had to have a short shelf life as the princely states had only one choice before them — a “choice of compulsion”. They were free to join either India or Pakistan. Since all princely states followed a form of absolute despotism, irrespective of their shape and size, the decision of each of the 565 rulers was effectively the decision of the state. Third, it is often forgotten that J&K was the only a princely state in the whole of South Asia to have a Constitution of its own, effective from September 7, 1939. There may have been some other states with glimpses of constitutional features, but none had any Constitution like J&K.

Thus, even a princely state like Cochin, which always led the way towards democracy — it pioneered to separate the judiciary from the executive and founded its legislature in 1925. could not create a Constitution. In Hyderabad’s case, though, a Legislative Assembly was founded in 1946, where “the Muslim members, vide official edict, had a majority of over 10 over Hindus in a House of 132”, despite the state’s 85 per cent Hindu population. Again, Mysore state, despite having a Legislative Council with an elected majority from 1907, and wide legislative and financial powers, had no control over executive powers. In Central India, although Gwalior’s ruler George Jivaji Rao Scindia declared his intent to grant responsible government in December 1946, and in May 1947 convened an interim government of popular representatives and a Constitution-making body, nothing concrete emerged. Further west, the first Legislative Assembly of Jaipur also was established in 1944. Thus, even if a Pakistani or anyone else were to question the legitimacy of Kashmir being a part of India through the Instrument of Accession, there is a second legal document that constitutionally empowered the Maharaja of Kashmir to accede to India on October 26, 1947.

That was the J&K Constitution, effective from September 1939, whose Section 5 stipulated: “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.” In other words, the J&K Constitution emphatically stressed the Maharaja was the “absolute monarch” and thus all powers relating to the state were vested in him. Hence, even if there was no Instrument of Accession to be signed between Indian states and the independent states of India or Pakistan, after August 1947, as far as J&K state was concerned, the Maharaja could well claim to be on the right side of law, being authorised by the J&K Constitution to do what he did on October 26, 1947 — by acceding to India. Thus, from all legal, technical and constitutional angles, the accession of J&K was a legitimate and bona fide act, and one fails to understand why our leaders then did not, or could not, take it up the way it should have been, and brush aside all third-party singular numbers and their cheerleaders to stay out, rather than allowing them to interfere in India’s internal matters.

J&K is, in fact, a classic case where our system managers continually preferred to play low on the law and high on politics, thereby allowing an internal adjustment pertaining to the teething problems of a new nation to escalate into a perception of an “international pain in the neck”. The ruler of J&K signed the Instrument of Accession in the same form as done by the other 550-plus Indian princely rulers, hence any challenge to J&K’s accession, or the nullity thereof vis-à-vis it being Indian territory, could very well recur in other states which had acceded to India in 1947. By its very nature, therefore, there is no scope to talk to any foreign power about Kashmir. India’s leaders must not allow the mistakes of history to be repeated. External forces certainly cannot illegally unscramble the legally scrambled egg by internal actors, however hard they may try. One must follow the law of a sovereign nation and eschew ranting by illegal forces. Otherwise, mala fide will be allowed to prevail.