THE TRIBUNE

CHANDIGARH | WEDNESDAY | 2 JULY 2014

OPED-SECURITY

09

Accession of J&K, a constitutional view

shall give its reasoned conclusions
regarding accession.
The Constituent Assembly which was
convened on the basis of adult suffrage
comprising the representatives of the people 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 resolution of the Constituent Assembly on February 15, 1954. In the 12th session of the
Constituent Assembly of Jammu & Kashmir held from September 29, 1956, to
November 19, 1956, the drafting committee on October 10, 1956, presented the
draft Constitution. After detailed discussions the Constitution was approved and
adopted on November 17, 1956. Sections 1
to 8 and 158, which deal with the State territory, permanent residents, and the relationship 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 commencement 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 relationship of the State with the Union of
India as an integral part thereof, and to
secure to ourselves JUSTICE, social, economic and political;/ LIBERTY of thought,
expression, belief, faith and worship;/
EQUALITY of status and of opportunity;
and to promote among us all;/ FRATERNITY assuring the dignity of the individual
and the unity of the Nation./ In our Constituent Assembly this seventeenth day of
November, 1956, do hereby adopt, enact
and give to ourselves this constitution.

Adarsh Sein Anand

THE TRIBUNE NATIONAL

SECURITY FORUM

The Tribune
National Security
Forum series on
matters of
national interest
examines the
controversy over
the accession of
the State of
Jammu and
Kashmir to India
and Article 370.
The first in a twopart analysis by
a former Chief
Justice of India
looks at the
circumstances
and processes
that led to the
accession.

HE Indian native States, of

which the State of Jammu and
Kashmir was one, were those
areas in the Indian subcontinent 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 paramountcy 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 Cabinet 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 the
States which flowed from their relationship with the Crown would no longer be
possible to exist and the rights surrendered by the States to the paramount power 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 government or governments and evolve a
scheme of the precise form of their relationship. On February 20, 1947, the
British Government announced that
independence would be granted to
British India. This was followed by another 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 princely States were to become independent.

Chamber of Princes

Irrevocable
accession
The execution of the

Instrument of Accession
by the Maharaja and its
acceptance by the
Governor-General finally
settled the issue of
accession of the State of
Jammu and Kashmir.
The Constitution

Assembly was invested

with the authority to
frame the Constitution
for the State and to
decide its future.
Self-determination

is a
one-time slot the
people of the State took
a final decision and,
therefore, the question
of any further selfdetermination does
not arise either legally
or morally.

Lord Mountbatten, as the Crown representative, addressed the Chamber of

Princes on July 25, 1947. He advised the
princes and their representatives that
although legally they had become independent, 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 Memorandum of May 16, 1947, which contemplated 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 for
surrender to the appropriate dominion
the power over the three specified subjects and stated that the dominion would
have no authority over the internal autonomy of the State. A State could accede to
either dominion by executing an instrument of accession signed by the ruler and
accepted by the Governor-General of the
dominion concerned. The decision

on this day... 100 years ago

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

whether to accede or not and to which
dominion were in the exclusive right and
discretion 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 options
On August 15, 1947, India became independent. In accordance with the Cabinet 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 complete independence,
to accede to Pakistan or accede to India.
Power to take the decision vested exclusively 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 possible 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 several thousand tribesmen armed with
bren guns, machine guns, mortars and
flame throwers attacked the frontiers of
the State of Jammu and Kashmir. Srinagar trembled before the danger of the
tribesmens invasion.
The tribal invasion caused grave devastation in the State. The indecision of
Maharaja Hari Singh gave place to deepseated alarm and concern for his personal 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 Abdullah
advised 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 Maharaja 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

as practicable, be proportionate to the

population of that area.
The Constitution to be framed by the
National Assembly shall provide adequate safeguards for the minorities and
contain appropriate provisions guaranteeing freedom of conscience, freedom
of speech and freedom of assembly.
The National Assembly shall, as soon
as the work of framing the new constitution 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 particular 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.

grave emergency has arisen in my State

and request the immediate assistance of
your 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 boundary with the Union of Soviet Socialist
Republic and with China. In their external 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 situation 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 acceding to the dominion of India. I have
accordingly decided to do so and I attach
the Instrument of Accession for acceptance 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-General 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 acceptance by the Governor-General finally settled the issue of accession of the State of
Jammu and Kashmir. It was similar to the
one executed by the rulers of other States.

On 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 purposes 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 Constitution 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 harbour of our freedom which for the first
time in history will enable the people of
Jammu & Kashmir, whose duly elected
representatives 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

The internal administration of the State

was being governed by the Jammu &
Kashmir Constitution Act, 1939. On
March 5, 1948, Sir Hari Singh issued a
proclamation inter alia stating: My
Council of Ministers shall take appropriate steps, as soon as restoration of normal
conditions have been completed, to convene a National Assembly based upon
adult suffrage, having due regard to the
principle that the number of representatives from each voting area should, as far

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

The Punjab companies

IN another column we have reproduced Mr. Langley's report on
the Joint Stock Companies in the Punjab for 1913-14. The financial crisis was directly and indirectly responsible for the collapse
of a large number of companies. In March 1914 only 108 of the registered companies remained out of 155 which were shown to exist
in March 1913. Twenty-two new companies were started during
the year but ten of them collapsed during the storm. Of the companies 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 actually 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.

forecast

Sunny

3 4
4

1 6
2

1
1
6 4

18
19
20
21

Obsolete (8)
Area for skating (4)
Without (5)
Utterly destroy (7)

DOWN
1 Postpone (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)

8
4
5
9
6
3
1
2
7

1
5
8
4
3
6
2
7
9

6
2
4
8
7
9
3
1
5

3
9
7
5
1
2
8
6
4

4
6
2
3
5
8
7
9
1

9
8
1
6
4
7
5
3
2

5
7
3
2
9
1
4
8
6

MIN
27
29

34
34
35
35
35

22
24
25
24
24

34
35
35
33
34

22
26
25
22
24

HARYANA

calendar

Yesterdays solution
7
3
9
1
2
4
6
5
8

Amritsar
Bathinda
Jalandhar
Ludhiana
Patiala

6
7

Cloudy

PUNJAB

9
6

Partly Cloudy

CITY
MAX
Chandigarh 36
New Delhi
36

6
9
2 3

2
1
6
7
8
5
9
4
3

WEDNESDAY 7.30 PM
THURSDAY 5.24 AM

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

ACROSS
1 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 of
group (5,5)

SUNSET:
SUNRISE:

Private candidates and university examinations

RULE 2 of the Regulations relating to private candidates in the
Punjab University provides that bona fide teachers, not being students of any college affiliated to the University, may be recommended by the Syndicate for admission by special order of the
Senate as candidates "at any University Examination in the faculties 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 colleges and the University Library. Why other Libraries in the Punjab were not included we cannot say; but nothing need be said
about it as the restriction has since been removed.

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.

su do ku
YESTERDAYS
SOLUTION

lahore,thursday, july 2, 1914

The people of the State of Jammu &

Kashmir, thus, finally settled the controversy regarding accession through the
Constituent Assembly comprising their
elected representatives. No one, not even
the worst critic, has ever doubted the representative nature of the Constituent
Assembly. Self-determination is a onetime 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 Constitution 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 relationship of the State with the Union of India.
This section is in affirmation and reiteration 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 Legislature 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 without any reservation that the Accession of
Jammu and Kashmir State to India on
October 26, 1947, is legally sound, constitutionally binding, irrevocable and final.
(To be continued tomorrow)

Constituent Assembly

Framing of the Constitution

quick crossword

Self-determination

JULY 2, 2014, WEDNESDAY

Shri Vikrami Samvat 2071
Shaka Samvat 1936 (Aashaadh

Shaka 11)
Aashaadh Parviste 18
Hijari 1435
Shukla Paksha tithi 5, up to
12.49 am
Sidhi yoga up to 12.26 am
Magha Nakshatra up to 5.53 pm
Moon in Leo sign
Gandamula up to 5.53 pm.

Ambala
Bhiwani
Hisar
Karnal
Sirsa

HIMACHAL PRADESH

Dharamsala
Manali
Nahan
Shimla
Solan

27
22
28
22
26

20
12
15
13
19

JAMMU & KASHMIR

Jammu
Leh
Srinagar

34
29
30

23
18
17

32
25
23

23
17
16

UTTARAKHAND

Dehradun
Mussoorie
Nainital
TEMPERATURE IN OC

Rainy