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THE TRIBUNECHANDIGARH | WEDNESDAY | 2 JULY 2014 09OPED-SECURITY

Adarsh Sein Anand

THE Indian native States, of

which the State of Jammu and

Kashmir was one, were those

areas in the Indian subconti-

nent which were for internal purposes

outside the administrative, legislative

and judicial sphere of the British Indian

Government. Each such State had a

hereditary ruler, who, subject to the para-mountcy of the British Crown, exercised,

with some exceptions, unlimited power

over the States ruled by them. These

native States covered more than half the

area of the Indian subcontinent and were

referred to as Indian India. The other part

of India comprising the provinces and

certain other areas was referred to as

British India. The rulers of the native

States were sovereign, subject to the

paramountcy of the British Crown.

The aftermath of the Second World War

and the assumption of power by a Labour

Ministry in England brought about a

change in the British policy towards

India. The delegation popularly known as

Cabinet Mission arrived in India on

March 23, 1946. On May 25, 1946, the Cab-

inet Mission circulated a memorandum

dated May 12, 1946, in regard to the native

States. In this memorandum the Mission

affirmed that on the withdrawal of British

Government from India, the rights of theStates which flowed from their relation-

ship with the Crown would no longer be

possible to exist and the rights surren-

dered by the States to the paramount pow-

er would revert to the rulers of those

States when the two new dominions of

India and Pakistan are created.

The Cabinet Mission, however, advised

the rulers of the native States to enter

into negotiations with the successor gov-

ernment or governments and evolve a

scheme of the precise form of their rela-

tionship. On February 20, 1947, the

British Government announced that

independence would be granted to

British India. This was followed by anoth-

er statement on June 3, 1947, setting out

its plan for the transfer of power: His

Majestys Government wish to make it

clear that the decisions announced above

[about Partition] relate only to British

India and that their policy towards Indian

States contained in the Cabinet Mission

Memorandum of 12.5.1946, (Cmd. 6835)

remains unchanged.

Thus, it would be seen that on the

withdrawal of paramountcy, the prince-

ly States were to become independent.

Chamber of PrincesLord Mountbatten, as the Crown repre-

sentative, addressed the Chamber of

Princes on July 25, 1947. He advised the

princes and their representatives that

although legally they had become inde-

pendent, they should accede to one or the

other dominion. Lord Mountbatten told

the Chamber of Princes that accession of

the State to either of the dominions was

to be under the Cabinet Mission Memo-

randum of May 16, 1947, which contem-

plated surrender to the dominion of three

subjects, namely, defence, external

affairs and communications. Lord

Mountbatten also caused to be circulated

for discussion a Draft Instrument of

Accession, which explicitly provided forsurrender to the appropriate dominion

the power over the three specified sub-

jects and stated that the dominion would

have no authority over the internal auton-

omy of the State. A State could accede to

either dominion by executing an instru-

ment of accession signed by the ruler and

accepted by the Governor-General of the

dominion concerned. The decision

whether to accede or not and to which

dominion were in the exclusive right anddiscretion of the Ruler. In the Indian

dominion the accession was to be made

under Section 6 of the Government of

India Act, 1935, as adopted by Section 9 of

the Indian Independence Act, 1947.

Three optionsOn August 15, 1947, I ndia became inde-

pendent. In accordance with the Cabi-

net Mission plan of May 1946 following

the creation of the dominions of India

and Pakistan, Kashmir bordering on

both India and Pakistan had, like any

other native State, three alternatives,

viz., to assert com plete independence,

to accede to Pakistan or accede to India.

Power to take the decision vested exclu-

sively in the ruler according to the

British Governments declared policy.

Dawn, the Muslim Leagues 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 possi-

ble trouble would inevitably ensue.

This threat alarmed the Maharaja of

Kashmir. Looking at the upsurge in the

State, Sheikh Abdullah, who was in jail,

was released on September 29, 1947. On

October 20, 1947, a large column of sev-

eral thousand tribesmen armed with

bren guns, machine guns, mortars and

flame throwers attacked the frontiers of

the State of Jammu and Kashmir. Sri-

nagar trembled before the danger of the

tribesmens invasion.

The tribal invasion caused grave devas-

tation in the State. The indecision of

Maharaja Hari Singh gave place to deep-

seated alarm and concern for his person-

al safety. On October 25, 1947, the

Maharaja appointed Sheikh Abdullah as

the emergency administrator. The raiders

were fast approaching Srinagar, looting

whatever came their way. The State was

in imminent peril. Sheikh Abdullahadvised the Maharaja that if the State was

to be saved, he must accede to India and

ask for immediate military help. This

advice paved the way for accession of

Jammu & Kashmir to India. The Mahara-

ja also found no other alternative and

addressed a letter to Lord Mountbatten,

the Governor General of India, stating: I

have to inform your Excellency that a

grave emergency has arisen in my State

and request the immediate assistance ofyour Government. As your Excellency is

aware, the State of Jammu & Kashmir

has not acceded to either the dominion of

India or Pakistan. Geographically my

State is contiguous with both of them.

Besides, my State has a common bound-

ary with the Union of Soviet Socialist

Republic and with China. In their exter-

nal relations the dominions of India and

Pakistan cannot ignore this fact. I wanted

to take time to decide to which dominion

I should accede or whether it is not in the

best interest of both the dominions and

my State to stand independent, of course

with friendly relations with both.

After giving an account of the tribal

invasion, the letter continued: With the

conditions obtaining at present in my

State and the great emergency of the sit-

uation as it exists, I have no option but to

ask for help from the Indian dominion.

Naturally, they cannot send the help

asked for by me without my State acced-

ing to the dominion of India. I have

accordingly decided to do so and I attach

the Instrument of Accession for accept-

ance by your Government.

Attached to the letter was an Instrument

of Accession duly executed and signed by

the Ruler, Maharaja Hari Singh.

Lord Mountbatten, the Governor-Gen-

eral of India, indicated his acceptance in

the following words: I do hereby accept

this Instrument of Accession. Dated this

twenty-seventh day of October Ninteen

Hundred and Forty-Seven.

The execution of the Instrument of

Accession by the Maharaja and its accept-

ance by the Governor-General finally set-

tled the issue of accession of the State of

Jammu and Kashmir. It was similar to the

one executed by the rulers of other States.

Framing of the ConstitutionThe internal administration of the State

was being governed by the Jammu &

Kashmir Constitution Act, 1939. OnMarch 5, 1948, Sir Hari Singh issued a

proclamation inter alia stating: My

Council of Ministers shall take appropri-

ate steps, as soon as restoration of normal

conditions have been completed, to con-

vene a National Assembly based upon

adult suffrage, having due regard to the

principle that the number of representa-

tives from each voting area should, as far

as practicable, be proportionate to the

population of that area.The Constitution to be framed by the

National Assembly shall provide ade-

quate safeguards for the minorities and

contain appropriate provisions guaran-

teeing freedom of conscience, freedom

of speech and freedom of assembly.

The National Assembly shall, as soon

as the work of framing the new constitu-

tion is completed, submit it through the

Council of Ministers for my acceptance.

This proclamation was followed by yet

another proclamation of June 20, 1949,

issued by Maharaja Hari Singh:

Now, therefore, I hereby direct and

declare all powers and functions whether

legislative, executive or judicial which are

exercisable by me in relation to the State

and its government including in particu-

lar my right and prerogative of making

laws, of issuing proclamations, orders

and ordinances, or remitting, commuting

or reducing sentences and of pardoning

offenders, shall during the period of my

absence from the State be exercisable by

Yuvraj Karan Singh Bahadur.

Constituent AssemblyOn May 1, 1951, Yuvraj Karan Singh

issued a proclamation which inter alia

contained the following directions:A Constituent Assembly consisting of

representatives of the people, elected

on the basis of adult franchise, shall

be constituted forthwith for the pur-

poses of framing a Constitution for

the State of Jammu and Kashmir. The Vote at election shall be direct

and [by] secret ballot.

The Constitution Assembly was invested

with the authority to frame the Constitu-

tion for the State and to decide its future.

Today is our day of destiny. A day which

comes only once in the life of a nation

after centuries we have reached the har-

bour of our freedom which for the first

time in history will enable the people of

Jammu & Kashmir, whose duly electedrepresentatives are gathered here, to

shape the future of their country after

wise deliberation and mould their future

organs of the Government. No person and

no power can stand between them and the

fulfilment of this their historic task,

declared Sheikh Mohammed Abdullah in

his inaugural address to the Constituent

Assembly and added that the Assembly

shall give its reasoned conclusions

regarding accession.

The Constituent Assembly which was

convened on the basis of adult suffrage

comprising the representatives of the peo-

ple of the State and which represented the

people of the entire State in unequivocal

terms ratified the States accession to

India, through a well-considered resolu-

tion of the Constituent Assembly on Feb-

ruary 15, 1954. In the 12th session of theConstituent Assembly of Jammu & Kash-

mir held from September 29, 1956, to

November 19, 1956, the drafting commit-

tee on October 10, 1956, presented the

draft Constitution. After detailed discus-

sions the Constitution was approved and

adopted on November 17, 1956. Sections 1

to 8 and 158, which deal with the State ter-

ritory, permanent residents, and the rela-

tionship of the State with the Union of

India, came into force at once. The

remaining sections came into force on

January 26, 1957, referred to as the com-

mencement of the Constitution.

The Preamble to the Constitution of

Kashmir reads: We, the people of the

State of Jammu and Kashmir, having

solemnly resolved, in pursuance of the

accession of this State to India which took

place on the twenty-sixth day of October,

1947, to further define the existing rela-

tionship of the State with the Union of

India as an integral part thereof, and tosecure to ourselves JUSTICE, social, eco-

nomic and political;/ LIBERTY of thought,

expression, belief, faith and worship;/

EQUALITY of status and of opportunity;

and to promote among us all;/ FRATERNI-

TY assuring the dignity of the individual

and the unity of the Nation./ In our Con-

stituent Assembly this seventeenth day of

November, 1956, do hereby adopt, enact

and give to ourselves this constitution.

Self-determinationThe people of the State of Jammu &

Kashmir, thus, finally settled the contro-

versy regarding accession through the

Constituent Assembly comprising their

elected representatives. No one, not even

the worst critic, has ever doubted the rep-

resentative nature of the Constituent

Assembly. Self-determination is a one-

time slot the people of the State took a

final decision and, therefore, the question

of any further self-determination does

not arise either legally or morally.

The wishes of the people of J&K have

been duly ascertained through the duly

elected Constituent Assembly. The

States accession, therefore, cannot any

longer be questioned. The 1954 resolution

of the Constituent Assembly was followed

by incorporation of Section 3 in the Con-

stitution of Jammu and Kashmir which

reads: The State of Jammu and Kashmir

is and shall be an integral part of the

Union of India. The use of the expression

is and shall be is significant. It talks

both of the past and the future relation-

ship of the State with the Union of India.

This section is in affirmation and reitera-

tion of the desire of the people of the State

to be an integral part of India. It has been

put beyond the powers of the State Legis-

lature to amend by virtue of the mandate

of Section 147 of the Constitution. This

provision was apparently incorporated in

order to avoid and fissiparous tendencies

raising their ugly heads in the future.Thus, in conclusion, it can be said with-

out any reservation that the Accession of

Jammu and Kashmir State to India on

October 26, 1947, is legally sound, consti-

tutionally binding, irrevocable and final.

(To be continued tomorrow)

The writer is a former Chief Justice of India;

former Chairman, National Human Rights Commission;

and former Chief Justice of the J&K High Court.

Accession of J&K, a constitutional viewTHE TRIBUNE NATIONAL

SECURITY FORUM

The TribuneNational SecurityForum series onmatters ofnational interestexamines thecontroversy overthe accession ofthe State ofJammu andKashmir to Indiaand Article 370.The first in a two-part analysis bya former ChiefJustice of Indialooks at thecircumstancesand processes

that led to theaccession.

IrrevocableaccessionThe execution of the

Instrument of Accessionby the Maharaja and itsacceptance by theGovernor-General finallysettled the issue ofaccession of the State ofJammu and Kashmir.

The ConstitutionAssembly was investedwith the authority to

frame the Constitutionfor the State and to

decide its future.

Self-determination is aone-time slot thepeople of the State tooka final decision and,therefore, the questionof any further self-determination doesnot arise either legallyor morally.

A file photo of a demonstration in favour of Article 370 in Srinagar. PTI

ACROSS1 Certificate of qualification

(7)4 Striking outfit (3-2)7 Shallow river crossing (4)8 Extraordinary (8)10 A diversionary tactic (3,7)12 Firearm (6)13 Easily influenced (6)

15 Disreputable member ofgroup (5,5)

18 Obsolete (8)19 Area for skating (4)20 Without (5)21 Utterly destroy (7)

DOWN1 Pos tpon e (5)2 State of bliss (8)3 Reddish-brown hair

colour (6)4 Unfounded (10)

5 Large heavy book (4)6 Withdraw from

undertaking (4,3)9 US city famed for jazz

(3,7)11 Superficial renovation (8)12 Carry out (7)14 Admittance (6)16 Card game for gamblers

(5)17 Knock senseless (4)

Yesterdays solution calendarJULY 2, 2014, WEDNESDAY

Shri Vikrami Samvat 2071 Shaka Samvat 1936 (Aashaadh

Shaka 11) Aashaadh Parviste 18Hijari 1435 Shukla Paksha tithi 5, up to

12.49 am Sidhi yoga up to 12.26 amMagha Nakshatra up to 5.53 pm

Moon in Leo signGandamula up to 5.53 pm.

lahore,thursday,july 2,1914

The Punjab companiesIN another column we have reproduced Mr. Langley's report on

the Joint Stock Companies in the Punjab for 1913-14. The finan-

cial crisis was directly and indirectly responsible for the collapse

of a large number of companies. In March 1914 only 108 of the reg-istered companies remained out of 155 which were s hown to exist

in March 1913. Twenty-two new companies were started during

the year but ten of them collapsed during the storm. Of the com-

panies that failed 21 were banks, the paid up Capital of which

amounted to Rs. 25 lakhs and their deposits to about Rs. 2 crores.

A large proportion of these was paid out before the banks actual-

ly closed, and some part, Mr. Langley thinks, was "undoubtedly

bogus." He deducts one-half of the total deposits and considers

that the amount for which the banks are accountable still remains

a very large sum.

Private candidates and university examinationsRULE 2 of the Regulations relating to private candidates in the

Punjab University provides that bona fide teachers, not being stu-

dents of any college affiliated to the University, may be recom-

mended by the Syndicate for admission by special order of the

Senate as candidates "at any University Examination in the facul-

ties of Oriental Learning and Arts other than an examination for

Matriculation." In an explanatory note it is stated that the term

bona fide teacher is held to include the Librarians of affiliated col-

leges and the University Library. Why other Libraries in the Pun-

jab were not included we cannot say; but nothing need be said

about it as the restriction has since been removed.

YESTERDAYSSOLUTION

Across1 Blue-blooded, 9 Ill-used, 10 Crawl, 11Kick, 12 Despotic, 14Exceed, 16 Pencil, 18Panorama, 19 Opus,22 Noose, 23 Ascribe,24 Greenkeeper.

Down2 Lilac, 3 Else, 4Ledger, 5 Occupied, 6Elastic, 7 Tickled pink,8 Blacklisted, 13Retrieve, 15 Candour,17 Embark, 20 Poise,21 Acme.

quick crossword su do ku forecaston this day...100 years ago

2 7 8 1 6 3 4 9 5

1 3 4 5 2 9 6 8 7

6 9 5 8 4 7 2 1 3

7 1 9 4 8 5 3 6 2

8 2 6 3 7 1 5 4 9

5 4 3 6 9 2 8 7 1

9 6 1 2 3 8 7 5 4

4 5 2 7 1 6 9 3 8

3 8 7 9 5 4 1 2 6

4 2 7 3

8 1

3 4 1 6

4 2

1 6

9 1

2 3 6 4

9 6

6 7 2 5

Sunny Partly Cloudy Cloudy Rainy

CITY MAX MIN

Chandigarh 36 27

New Delhi 36 29PUNJAB

Amritsar 34 22Bathinda 34 24

Jalandhar 35 25

Ludhiana 35 24

Patiala 35 24HARYANA

Ambala 34 22

Bhiwani 35 26

Hisar 35 25

Karnal 33 22

Sirsa 34 24HIMACHAL PRADESH

Dharamsala 27 20

Manali 22 12

Nahan 28 15

Shimla 22 13

Solan 26 19JAMMU & KASHMIR

Jammu 34 23

Leh 29 18

Srinagar 30 17

UTTARAKHAND

Dehradun 32 23

Mussoorie 25 17Nainital 23 16

SUNSET: WEDNESDAY 7.30 PM

SUNRISE: THURSDAY 5.24 AM

TEMPERATUREIN OC