British Institute of International and Comparative Law

Kashmir and the Indian Union: The Legal Position

Author(s): Paras Diwan
Source: The International and Comparative Law Quarterly, Vol. 2, No. 3 (Jul., 1953), pp.
333-353
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
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KASHMIR AND THE INDIAN UNION: THE LEGAL
POSITION

As was feared in some quarters, the problem of Kashmir

dragged on for several years without any prospect of im
solution. A feeling, rightly or wrongly, is growing here
that the United Nations, the broad based organisation
nations of the world, has not treated us fairly; and prob
more than a mere expression of emotional resentment tow
organisation, on whose side India has always stood. Som
go even to the length of saying that we were not wise in
our case before the Security Council.' On the other hand
Kashmir, some matters are coming to a conclusion speed
What then are precisely the relations of Kashmir w
and what position does it hold in the Indian Union? With this
question are linked the issues of internal competence 3 and external
limitations.4 Or, the question may be put in this form: What is
the legal position of the State of Jammu and Kashmir vis-ai-vis the
Indian Union? In the opinion of the present writer, neither

1 Replying to the debate on Kashmir in the House of People on June 26, 1952,
wherein some members said that the Kashmir case should be withdrawn from
the United Nations, the Prime Minister of India said that members talked of
withdrawing the case from the U.N. He did not understand how that could
be done. Of course, India could break with the U.N. when she wanted to and
take the consequences. But he did not think that would be a right thing. It
would be wrong either on the broader grounds of policy or the narrower
grounds of opportunism. Therefore, he said, the question of withdrawal did
not arise. The Prime Minister further said: " There is no question of our
submitting to any direction which we consider wrong. But, apart from that,
we have made it clear that we will, in our desire of peace, accept any advice
or mediation, even though it is often enough, rather oppressive, distressing and
disheartening to have to carry on interminable talks without end, when often
enough the major issues are put aside and long arguments take place over
trivial detail."
2 The Constituent Assembly of Jammu and Kashmir has already, on Augus
1952, passed a resolution abolishing the monarchy from the State. By t
Big Landed Estate Act it has abolished the Zamidari system from the Sta
Further, it is about to take decision about the fundamental rights of th
Kashmiri people and the jurisdiction of the Supreme Court of India.
3 A question has been recently posed by eminent persons and leaders how
the Constituent Assembly of the State can proceed. Can it frame Funda-
mental Rights for the State subjects? Can it decide that the Emergency
Powers of the President of India embodied in the Part XVIII of the Constitu-
tion of India would not be applicable to the State? etc. To these questions t
leaders of Kashmir have replied " Yes."
4 Sometimes the leaders of the State of Jammu and Kashmir have said that the
State can secede from the Indian Union by a unilateral act. In the month of
May, 1952, Sheik Abdulla, in a public speech at Ranbirsinghpura, in Kashmir
said that State can secede from the Indian Union on its own accord.

333

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334 International and Comparative Law Quarterly [VOL. 2

the United Nations nor Indian Union, nor the State of Jammu and
Kashmir, can determine any issue with respect to Kashmir unless
and until the picture is clearly seen and understood.

INDIAN FEDERATION

India is a Union of States,5 of which there are at least three

varieties. In the first category are those States, which were
previously the provinces of the British India, which are now known
as the Part (A) States under the Indian Constitution of 1949, and
are headed by the Governors who are periodically nominated by
the President of the Indian Union.6 The second category is of those
States which were, hitherto, known as the Indian States and were
ruled by the feudal princes. At present they are known as Part (B)
States, whose executive heads are, even now, princes, called
Rajpramukhs, and who, once appointed, can in normal circum-
stances remain in office for life. Next are Part (C) States: these
are headed by Lieutenant-Governors or Chief Commissioners, who
are also appointed by the President of the Indian Union for a
specified period. Though the Part (C) States are constituent
members of the Indian Union, yet, as a matter of fact, they are
similar to the administrative units of the Union, for they are directly
ruled by the Union and do not possess any internal autonomy.7
Parts (A) and (B) States, in normal circumstances,8 possess full
autonomy over the subject-matter of the State List of powers.
They also have concurrent power over the subject-matter of the
List II or concurrent List of powers; this, in the opinion of the
present writer, means that the Part (B) States can legislate on
those subjects as long as there is no federal statute, but as soon as a
federal legislation is passed on that subject the State concerned must
withdraw.

It has been an established principle of federalism that the

component units of a federation are, more or less, equal inter se.
But under the Constitution of India this principle has not been
followed. The Part (A) States differ from Part (B) States in many

5 Article 1 of the Constitution of India reads: -

" (1) India, that is Bharat, shall be a Union of States.
" (2) The States and the territories thereof shall be the States and their
territories specified in Parts A, B and C of the First Schedule."
6 Article 155 of the Constitution of India runs: -
"The Governor of a State shall be appointed by the President by warrant
under his hand and seal."
7 See Part VIII of the Indian Constitution.
8 Under Part XVIII of the Constitution of India, in the case of emergency th
Parliament may take over any or all of the subjects of the State List.

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JULY 1953] Kashmir and the Indian Union 335

respects, and Part (C) States differ from Parts (B) and (A) Sta
entirely.
The Constitution of India places the State of Jammu and
Kashmir among the Part (B) States. But it is not a Part (B) State
in the sense in which the States of Madhya Bharat and Mysore
are. As we shall see shortly, it holds a peculiar position.

EVOLUTION OF PART (B) STATES

The Indian States had possessed a peculiar position in the scheme

of the Indian Empire of Great Britain. When the East India
Company was establishing its foothold in India it saw a spectacle
of a house divided in itself, each local prince trying to squeeze
out the other; and the company was not loth to utilise this
opportunity in advancing its own political ambitions in this
country. But soon it and its successors found it more expedient
and convenient to permit those States to exist which accepted its
dominating position or which were considered as not dangerous, and
to isolate and annihilate those which refused to fall into the general
line. In the Mutiny of 1857, the power of these local princes was
finally smashed. But the then rulers of India permitted 682 local
princes to exist as their allies, though subordinate in position.
Explaining the position of the Indian States, in his letter of
March 27, 1926, to H.E.H. Nizam of Hyderabad, Lord Reading
wrote: " The sovereignty of the British Crown is supreme in India,
and therefore no Ruler of an Indian State can justifiably claim to
negotiate with the British Government on an equal footing. Its
supremacy is not based on treaties and agreements, but exists
independently of them, and quite apart from its prerogative in
matters relating to foreign powers and policies, it is the right and
the duty of the British Government, while scrupulously respecting all
treaties and engagements with the Indian States, to preserve peace
and good order throughout India. . . . The right of the British
Government to intervene in the internal affairs of the Indian States
is another instance of the consequences necessarily involved in the
supremacy of the Crown. The British Government have indeed
shown again and again that they have no desire to exercise this
right without grave reason. But the internal, no less than external,
security which the ruling princes enjoy is due ultimately to the
protecting power of the British Government, and where imperial
interests are concerned, or the general welfare of the people of a
State is seriously and grievously affected by the action of its

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336 International and Comparative Law Quarterly [VOL. 2

government, it is with the paramount power that the ultimate

responsibility of taking remedial action, if necessary, must lie." 9
One thing is very certain, that the Indian States under the
British Raj did not possess an iota of external sovereignty; they
could not maintain any diplomatic relations with foreign countries,
nor could they communicate upon any matter with any foreign
State or any other Indian State save through the agency of the
British Government. The scope of their sovereignty was a matter
of some confusion and dispute. Perhaps, without hazarding any
risk of over-simplication, it could be said that they possessed some
sort of internal sovereignty though it was not the whole of internal
sovereignty, like that of the State of New York or Province of
Ontario. The Indian States were permitted to exercise sovereignty
over internal matters provided these matters were not considered to
be injurious to the British interests in India. This situation comes
out in clear relief from the following passage of the Indian Year
Book of 1922:

" The native States are under an obligation not to enter int
relations with foreign nations or other States; the authority of
rulers has no existence outside their territories. Their subjects
outside their dominions become for all intents and purposes British
subjects. Where foreign interests are concerned, the paramount
power acts so that no just cause of offence is given by its
subordinate allies. All native States alike are under an obligation
to refer to the British Government every question of dispute with
other States. . . . Although old and unaltered treaties declare
that the British Government will have no manner of concern with
any Maharaja's dependents or servants, with respect to whom the
Maharaja is absolute, the logic and public opinion have endorsed
the principle which Lord Canning set forth in the minutes of 1860
that 'the Government of India is not precluded from stepping in
to set right such serious abuses in a Native Government as may
threaten any part of the country with anarchy or disturbance nor
from assuming temporary charge of a native State when there shall
be sufficient reasons to do so. Of this necessity the Governor-General
is the sole judge, subject to the control of Parliament .. .." 10

9 See note 8.
10 Government of India, Ministry of States' White Paper on Indian States, p. 150.
The White Paper has brilliantly summed up the whole position of the
Indian States in the following passage, at p. 133:-
" The problem of Indian States was the most difficult of the legacies of the
British Rule which devolved on independent India. For over a century the
States had dotted the political map of India as disruptive patches retarding the

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JULY 1953] Kashmir and the Indian Union 337

But it was realised that these native States, with their mediev
structure and autocratic government, would not be able to carry o
for a very long period. In the meanwhile the National Movement
in British India was advancing by leaps and bounds. Under these
circumstances the British Parliament passed the Government
India Act in 1935.

For the first time, the Government of India Act, 1935, stipula
for the creation of a federation in India, consisting of the Provin
of British India and the Indian States. While the Provinces

automatically became the members of the impending fede

as soon as it was to be proclaimed, it gave an option to the
Indian States to become or not to become members. Any State
desiring to become a member of the federation could do so by
executing an Instrument of Accession, to be accepted by His
Majesty, on the conditions and terms which the rulers concerned
might think desirable and expedient, the only limitation being
that the instrument should not be incompatible with the general
scheme of the federation as propounded in the Government of
India Act, 1935. From the point of view of the federal law the
federation was not workable. The reasons were many: not only
there was great disparity between the units inter se, but at the same
time it was filled with so many safeguards and additional powers
of the Governor-General and Governors. From the national point
of view, too, it was most unsatisfactory, going as it did against
national interests, and it led to practically unanimous rejection and

political and economic integration of the life of her people. When the British
appeared in India, the Moghul Empire, which had held the States together,
was disintegrating and the States were swaying in the wind of history. With
the establishment of the British as the dominant power in India a strange
process overtook the States. The representatives of the powerful East India
Company rescued a number of States from the wreckage that followed the
collapse of the Moghul Empire; some Princes were lifted from chaos; others
confirmed in their possession, whether acquired legitimately or otherwise; yet
others were sent into oblivion. The Subsidiary System of alliance imposed on
the States broke their internal strength and independence. The authority and
prestige of the larger of the States was further undermined by the stabilisation
of the position of the small feudatory States and by the interposal of British
power as the supreme arbiter between them and the parent States. Having
thus broken the strength of the States, the dominant power then set itself to
guarantee and perpetuate their existence. So effective was the enforcement of
the Pax Britannica, and so abrupt its effect that, guarded against the normal
evolutionary and revolutionary processes, the States assumed in the first quarter
of the nineteenth century the 'appearance of a sea suddenly petrified in a
condition of stormy unrest and disquietude.' Firmly set under the external
pressure of a resourceful foreign power, the monarchical system in India,
which was as old as India's history itself, shifted from its traditional moral
plane and lost its own innate strength. Inevitably the Indian Ruleship
turned into a product and a prop of British Imperialism."

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338 International and Comparative Law Quarterly [VOL. 2

condemnation of the Constitution under the Act.1l It is note-

worthy that the Government of India Act did not contemplate
provide for the change of the status of the Indian princes in
respect to suzerain power. This was done subsequently by the
Indian Independence Act of 1947.

THE INDIAN INDEPENDENCE ACT

The Indian Independence Act stipulated for the division of India

into two dominions: India and Pakistan. According to section 2
of the Act the territories of the Indian Dominion shall be " . . . the
territories under the sovereignty of His Majesty which, immediately
before the appointed day, were included in British India except
the territories which . . . are to be the territories of Pakistan." The
Act excluded the Indian States from being a part of the Indian
Dominion or Dominion of Pakistan. The States were left free to
join either of the Dominions by executing Instruments of Access
Thus, the Indian States did not become automatically a part
the territories of either Dominion, though at the same time th
could become part of either of the Dominions voluntarily. Sectio
(4) expressly leaves them free to join or not to join either of t
Dominions; if the States liked to remain independent they could
so. Thus the Act sowed the seeds whose germination would hav
led to division not only into two but several parts.
Even though Lord Reading so categorically proclaimed tha
" the sovereignty of the British Crown is supreme in India
therefore no ruler of an Indian State can justifiably claim to
negotiate with the British Government on an equal footing," the
Act of 1947 virtually gave powers to these rulers whereby they
could easily negotiate on an equal footing with the power or
powers which succeeded the British Crown in India. Section 7 (b)
of the Indian Independence Act provides:
" The suzerainty of His Majesty over the Indian States lapses,
and with it all treaties and agreements in force at the date of
the passing of this Act, between His Majesty and the rulers of the
Indian States, all functions exercisable by His Majesty at the
date with respect to the Indian States, all obligations of His
Majesty existing at that date towards Indian States or the rulers
thereof, and all powers, rights, authority or jurisdiction exercisable
by His Majesty at that date in or in relation to Indian States by
treaty, grant, usage, sufferance or otherwise."

11 Subsequently, when in the year 1937 the Indian National Congress accepted
ministries in some Provinces, it accepted them Wvith the express intention of
wrecking the Constitution from within.

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JULY 1953] Kashmir and the Indian Union 339

Speaking in the House of Lords on July 16, 1947, the

Secretary of State for India, Lord Listowel, said:
" From that moment (the coming into force of the Act of 1947)
the appointment and functions of the Crown representative and his
officers will terminate and the States will be the masters of their
own fate. They will then entirely be free to choose whether to
associate with one or the other of the Dominion Governments or to
stand alone, and His Majesty's Government will not use the
slightest pressure to influence their momentous and voluntary
decision." 12
At the same time he expressed a hope that "in the fullness of
time all the States should find their appropriate place with one or
the other of the new Dominions."
The Prime Minister, Mr. Attlee, made a similar statement on
July 10, 1947:
" With the ending of treaties and agreements, the States regain
their independence. But they are part of geographical India, and
their rulers and people are imbued with a patriotism no less great
than that of their fellow Indians in British India. It would, I think,
be unfortunate, if, owing to the formal severance of their
paramountcy relations with the Crown, they are to be islands cut
off from the rest of India." 13

The net result of the Indian Independence Act is that, though

it might be unfortunate if the States wanted to remain outside the
Dominions, there is nothing in law to prevent them from doing so.
That this was also the desire of the British Government is clear
from the precise words of Lord Mountbatten, the then Viceroy,
spoken by him in his farewell address to the princes of Indi
"The States have complete freedom-technically and legally
they are independent." 14
That this has been the British policy since the Cripps Mission
which was reiterated through the Cabinet Mission and finally
achieved by the Act of 1947, is also clear from the followin
passage which embodied the aims of the Cabinet Mission:
" That the Indian States should be free to accede to either
Pakistan or the Union of India or to remain outside both the
Dominions." 15

The Government of India also accepts the result of the Indepen

dence Act. It was said on behalf of the Government of India on the
floor of the Union Parliament on March 15, 1948:

12 Quoted by Clyde Eagleton: "The Case of Hyderabad before the Security

Council," 44 The American Journal of International Law, at p. 282.
13 Ibid., at p. 283.
14 White Paper, p. 161.
15 See White Paper, pp. 152-3.

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340 International and Comparative Law Quarterly [VOL. 2

"In regard to them [Indian States] the Government of India's

policy is clear and unequivocal. There is no desire on our part, in
any way, to coerce them into merger or integration. If they wish
to remain as separate autonomous units, we would have no
objection." 16
The right of the State of Jammu and Kashmir, after the Act of
1947, was the same as that of other States, to remain independent
or to join one of the Dominions.

THE POSITION OF KASHMIR AFTER INDEPENDENCE ACT

The position of the State of Jammu and Kashmir later on assume

a rather complicated shape. But before we come to that a brie
review of the merger and integration process of the States i
necessary.
After the coming into force of the Independence Act, States
hesitated to join or not to join the Dominions; some also thought
of declaring themselves independent. But once they were free from
the tutelage of the British Crown and from direct British influence,
they began to take a realistic stock of their position.
The six hundred odd States were of various sizes, some big,
others very tiny. According to the Butler Committee the Indian
States could be divided into three distinct categories:
(a) States, the rulers of which were the members of the Chamber
of Princes 17 in their own right (108 in number);
(b) States, the rulers of which were represented in the Chamber
of Princes by 12 members of their order elected by themselves
(127 in number);
(c) Estates, Jagirs and others (327 in number).
In these circumstances it was obvious that the integration
and merger of the States did not follow a uniform pattern.
Integration followed three forms: Merger of the States in the
Provinces geographically contiguous to them; the conversion of the
States into centrally administered areas; and the integration of their
territories to create new viable units known as Unions of States.
Each of these forms has been adopted according to size, geography
and other factors relating to each State or group of States.18
After some hesitation, after some attempts to snatch some
privileges and benefits for themselves as a condition of accession,
and after some vacillations and delays, ultimately all the States,
except the State of Jammu and Kashmir and Hyderabad State,
joined the Dominion of India or Pakistan. It was the invasion of
16 The Statesman, March 16, 1948.
17 White Paper, p. 20.
18 White Paper, p. 58.

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JULY 1953] Kashmir and the Indian Union 341

Kashmir which hastened the process of accession of that Stat

the Indian Dominion, and in the case of Hyderabad it necessit
a "police action " to bring about the accession.
The States joining the Indian Union agreed to send their re
sentatives-though in most cases the representatives were nomi
by the princes-to the Constituent Assembly of India and ultim
accepted the Constitution of India and became the units of the
Indian Federation.
The Maharaja of Jammu and Kashmir entered into a standst
agreement with Pakistan; and he also tried to enter into a simil
agreement with India.
But then came the invasion of Kashmir and the flight of th
Maharaja with his entourage from Srinagar to Jammu. After
departure of the Maharaja, the National Conference, the prem
political party of the State, which was from the last two deca
struggling for democratic and social reforms in the State, took
the administration and became the de facto government of
State.

Faced with this acute crisis and clearly comprehending that

even his title was in danger, the Maharaja acceded to India on
October 27, 1937. The accession was accepted by the Government
of India; but the Prime Minister of India, Pandit Nehru, declared
that the accession was subject to a plebiscite.19 In other words,
Pandit Nehru gave an assurance to the world and to the peoples
of India and Jammu and Kashmir that though by accession the
State became part of the Indian Union, yet the people of the State
were free to confirm it or decide otherwise by a plebiscite. It is to
be noted that this declaration by the Prime Minister of India was
made after the acceptance of the accession, and accession was not
subject to that condition.20
Speaking on the floor of the House of the People, the Prime
Minister of Indian Union, Mr. Nehru, said:
" Let me be quite clear about something about which there seems
to be a good deal of misunderstanding, this business of accession
to India. The other day I said in this House that accession was
complete in law and in fact. Some people-from newspapers chiefly
abroad-seemed to think that something that has happened in the
19 In his reply to the debate on Kashmir in the House of People on August 7,
1952, Prime Minister of India, Pandit Nehru, said: "The Government of
India had to honour the pledge they gave to the people of Jammu and
Kashmir. This was a two-fold pledge. The Government were pledged to
protect them from invasion and loot and arson and everything else that
accompanied invasion. The other part of the pledge-given unilaterally-was
that it would be for the people of the State to decide finally what their future
was to be." The Statesman, August 8, 1952.
20 See Pitman B. Potter, " The Principal Legal and Political Problems Involved
in the Kashmir Case," 44 The American Journal of International Law.

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342 International and Comparative Law Quarterly [VOL. 2

last week or fortnight or three weeks had made this accession

complete. What I said was that accession was complete in law
and in fact in October, 1947. It is patent. No argument is
required. All the States in India acceded in July or August or
later that year on these three basic subjects-foreign affairs, com-
munication and defence. Can anybody say that accession of any
State was not complete in August or September or later in 1947
because they came in only on those three subjects ? Of course not.
It was a complete accession in law and in fact. So the accession
of Jammu and Kashmir was complete in law and in fact on a
certain date in October. . . . There the matter rests and it is not
open to doubt or challenge." 21
Subsequently the representatives of the State of Jammu and
Kashmir took their seats in the Constituent Assembly of India an
participated in the deliberations of that Assembly.

POSITION OF KASHMIR AFTER ACCESSION

According to the Constitution of India the State of Jammu and

Kashmir forms a part of the Indian Union: it is Indian territory.
It has been assigned a place among the Part (B) States of Indian
Union by the Constitution.22 Among Part (B) States it has a
unique place; it is not like the States of Rajisthan and Travancore-
Cochin, which are also Part (B) States. It is similar to them in
the sense that it is also headed by a prince. It differs from them
in many respects: the provisions of Part VII of the Constitution,
which provides for the Constitution of Part (B) States, do not
apply to the State of Jammu and Kashmir; the Union Parliament
cannot legislate on all subjects of the Union and Concurrent Lists-
as it can in respect of all the other Part (B) States-but only on
those subjects in those lists which have been delegated to the Union
by the Instrument of Accession; and the Chapters of the Constitu-
tion on Fundamental Rights and the Directive Principles of State
Policy do not apply to the State; at the same time the jurisdiction
of the Supreme Court of the Indian Union is also limited.23
The powers of the Indian Union Parliament to legislate for the
State of Jammu and Kashmir extend to defence, communications
and foreign affairs-the subjects delegated to the Indian Union by
the Instrument of Accession; these subjects have now been incor-
porated in details in the Constitution (Application to Jammu and
Kashmir) Order, 1950. These powers can be augmented by the
bilateral act of the Union Government and the Government of the

21 The Statesman, August 8, 1952.

22 See First Schedule and Article 370 of the Constitution of India.
23 See the Constitution (Application to Jammu and Kashmir) Order, 1950.

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JULY 1953] Kashmir and the Indian Union 343

State; but this augmentation is subject to the final approval

the Constituent Assembly of the State, if and when it comes in
being.24
The State of Jammu and Kashmir is part of Indian territory in
the sense that no one else can claim it against India; in other words
no one else can rightfully claim for a better title over the State.
If a country invades it, it would amount to an act of aggression
against the Indian Union.25 But the Indian Union is a Government
of limited powers. It means that with respect to any foreign
country the sovereignty of the Indian Union is absolute over its
territories, including the State of Jammu and Kashmir. But in
relation to the constituent States of the Union, its sovereignty is not
absolute. In normal circumstances, the sovereignty of the Union
does not extend to the subject-matter of the State List in respect
to Parts (A) and (B) States. With respect to Part (C) States,
its sovereignty is again absolute, for these States are directly
ruled by the central government. Recently, with respect to three
Part (C) States, some modification has been made.26 The States
of Delhi, Ajmer and Bhopal have been given a Legislative Assembly
and a Council of Ministers. In some States the post of Union
Adviser has been abolished.27 Then there are the territories of
India comprised in Part (D) of the First Schedule of the Con
tion; under the Constitution they have their distinct indivi
and are directly governed by the President of the Indian U
through a Chief Commissioner or any other authority appoin
the President. Thus, the component parts of the Indian Fed
are of varied nature and in their status they vary markedly i
Thus, the sovereignty of the Indian Union is not absolute
the State of Jammu and Kashmir. It extends only to those
subjects which have been delegated to the Union by the Instrument
of Accession or by the Constitution (Application to Jammu and
Kashmir) Order, 1950. Over the residual subject-matter the State
is sovereign, over which the Indian Union possesses no power
whatsoever, and any attempted legislation with respect to any of
those subjects on the part of the Indian Union would be unconstitu-
tional, hence null and void.

24 Article 370 (2) of the Indian Constitution.

25 The Indian Government sent its troops tb help the State of Kashmir to quell
the invaders in October, 1947, only when the State acceded to the Indian
Union. Subsequently the tribal raiders were helped actively by the Pakistan
troops. The whole basis of India's complaint before the Security Council is
that the Pakistan Government committed an act of aggression on Indian
Union, for by the execution of the Instrument of Accession the State became
part of Indian territory.
26 Article 240 of the Constitution of India.
27 For example, in the State of Mysore.

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344 International and Comparative Law Quarterly [VOL. 2

With respect to the residual powers there is a marked difference

between the State of Jammu and Kashmir on the one hand and all
other Part (B) States and Part (A) States. Under the Constitution
of India, the States can legislate with respect to all subjects
mentioned in the Lists II and III, while the Union possesses all
residual powers in addition to its power of legislating upon the
subject-matter of the Union List and the Concurrent List.28 With
respect to the State of Jammu and Kashmir the Union Parliament
can legislate only on those subjects which have been expressly
delegated to it; on all the other matters the State has full power of
legislation. In his statement before the Constituent Assembly of the
State, on August 11, 1952, the Chief Minister of the State, Sheikh
Abdulla said:
" It was agreed that while under the present Indian Constit
residuary powers vested in the centre in respect of all the S
other than Jammu and Kashmir, in the case of our State they
vested in the State itself." 29

THE CONSTITUENT ASSEMBLY OF JAMMU AND KASHMIR

As has been said above, the internal Constitution, as embodied in

Part VII of the Constitution of India for Part (B) States, is not
applicable to Jammu and Kashmir. The State has been left free
to frame its own constitution; moreover, if the State purports to
delegate further powers to the Union, the Constitution of India by
Article 370 (2) provides that if such delegation is made " before
the Constituent Assembly of the State is convened, it shall be placed
before such Assembly for such decision as it may take thereon."
Article 370, which is the main Article dealing with the relations
of the State with the Union, provides:
(a) The territories of the Indian Union shall include the terri-
tories of the State of Jammu and Kashmir; and the Union
Parliament shall have power to make laws with respect to
Kashmir on those subjects, and only those subjects, which
have been expressly assigned to the Indian Union by the
Instrument of Accession or the Constitution (Application
to Jammu and Kashmir) Order, 1950. These matters
(defence, communications and foreign affairs) are outside
the competence of the Constituent Assembly of Jammu and
Kashmir.

(b) Before the inauguration of the Constituent Assembly of

the State, if need be, the Government of Kashmir can
28 Article 248 of the Constitution of India reads: "Parliament has exclusive
power to make any law with respect to any matter not enumerated in the
Concurrent List or State List."
29 The Statesman, August 12, 1952.

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JULY 19531 Kashmir and the Indian Union 345

further augment the powers of the Indian Union by delega

ing those subjects to the Union, provided the President o
the Indian Union agrees to it; but as soon as the Constituen
Assembly of the State comes into being, these matters are
be placed before it for its approval or rejection.
(c) With respect to all other matters, not delegated to the Ind
Union, the Constituent Assembly of the State possesses fu
power of making laws; this includes the power of framin
a Constitution for the State.

The Constituent Assembly of the State was convened in

October, 1951. The important legal questions which now arise
are: What are precisely the powers of the State Constituent
Assembly? Can it declare the State a sovereign independent State ?
Can it by a unilateral act secede from the Indian Union?
The Constituent Assembly is perfectly within its powers so far
as it frames laws for the internal administration of the State, for
the social and economic welfare of the people and the State, and
for intra-State trade and commerce. It can also provide for the
Fundamental Rights and the Directive Principles of the State
policy. The powers which have been delegated to the Union by
the State Government beyond the Instrument of Accession are also
subject to revision by the Assembly. But that it can declare the
State a sovereign independent State, it is submitted, is difficult to
maintain.

It is true that after the coming into force of the Indian

Independence Act, 1947, the position of the State of Jammu and
Kashmir, like any other State, was that it was free to join either
Dominion or to remain independent. By the execution of the
Instrument of Accession on October 27 the sovereign of the State
exercised that choice. Further, by sending its representatives to
the Constituent Assembly of India, the State agreed to become the
member-State of the Indian Union. Thus, the people and the
sovereign of the State, through their representatives in the Con-
stituent Assembly of India, have willingly and voluntarily delegated
some powers to the Indian Union and become part of that family of
States.

Starting on the assumption that after August 15, 1947, the

State of Jammu and Kashmir, like any other Indian State, became
an independent State, the negotiations about the accession of the
State to India assumed the character of international negotiations
between the two sovereign States.30 It follows from this that the

30 See Clyde Eagleton's paper, loc. op. cit. But see Tarkanath Dass, " Status of
Hyderabad During and After British Rule in India," 43 The American
Journal of International Law, wherein he has taken a different view.

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346 International and Comparative Law Quarterly [VOL. 2

Instrument of Accession was nothing but a treaty between two

States. It also follows that all the principles of international law
applicable to treaties will apply to the Instrument. Under that
Instrument the sovereign State of Jammu and Kashmir decided to
relinquish its sovereign status voluntarily and agreed to accept
the sovereignty of the Indian Union. For that purpose it delegated
some powers to India and retained the rest. Thus, even according
to the principles of international law, the State or its Constituent
Assembly is not competent to abrogate the Instrument by a
unilateral act provided the situation does not materially change.
The declaration of independence by the State, in the submission of
the present writer, would amount to a breach of treaty. Just as
the Indian Union cannot unilaterally extend its powers beyond the
scope of the Instrument, similarly neither the State of Jammu and
Kashmir nor its Constituent Assembly can take away the powers
of the Union given to it by the Instrument.
The bond was further tightened, when by sending its repre-
sentatives to the Constituent Assembly of India, the State of Jammu
and Kashmir accepted the Constitution of India. In a federation
there is a mutuality of benefits and responsibilities. A member
joining the federation shares the common burdens and enjoys the
common benefits. On the one hand it surrenders some of its rights,
on the other it enjoys some advantages. In exchange for sovereign
status, the State of Jammu and Kashmir has shifted its burden of
defence, foreign relations and communications to the Indian Union.
The Constitution of India is applicable to Kashmir. How far it
is applicable is the matter which would be determined by the Con-
stitution itself. Under the federal scheme of India no State can
secede from the Union by its unilateral act; the Indian Union is an
indissoluble union. A State can go out of the Union only with the
mutual consent of the State concerned and the Union. Similarly
the Union cannot turn out a State by its unilateral act.
In this country, and more outside this country, an argument is
advanced that legally the accession of Kashmir to India is subject
to the condition of plebiscite; that the accession would be complete
only on the outcome of the plebiscite in favour of India. In the
submission of the present writer that declaration has no binding
force in law, though morally and politically it may be of some value.
For that declaration was made at a time when the accession was
complete, and accession was not made subject to that condition.
It is further submitted that there is nothing legalistic in this view
about that, as is sometimes alleged. It is true that the State acceded
to India at a very critical time, when, perhaps, it had no other
choice, but to join India and seek her protection. But that fact

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JULY 1953] Kashmir and the Indian Union 347

cannot make the accession less effective or less lawful. That also
cannot make a lawful act "legalistic." One may, further, argu
that the State joined the Indian Union under the duress of circum-
stances. But as far as the present writer is aware, duress largely
comprises physical coercion or intimidation. That it includes such
moral coercion as taking advantage of the other party's distress,
economic or otherwise, is, in the present state of public inter-
national law, difficult to maintain. Even if the State was forced to
take shelter in the lap of India, no force was exercised by India.
The accession of the State was complete " in law and in fact " on
October 27, 1947.
The Instrument of Accession, can, of course, be changed or
abrogated by a bilateral act of the State and the Union. It is con-
ceived that the secession of the State of Jammu and Kashmir from
the Indian Union will not need more than a Presidential declaration
to that effect on the request of the Kashmir Government. Article 370
of the Constitution of India can be terminated without amending
the Constitution 31; though it would render some of the provisions
of the Constitution redundant.32

Time and again the leaders of India have professed their

adherence to the right of self-determination. If the Constituent
Assembly of Kashmir decides to proclaim Kashmir a sovereign
independent State, it can count on those professions. It is conceived
that given favourable conditions, the Indian Union, its leaders and
people would not be averse to the sentiments and aspirations of the
Kashmiri people.
Pandit Jawaharlal Nehru, the Prime Minister of India, speaking
from the floor of the House of People on August 7, 1952, said:
"... the other fact-it has nothing to do with law-also
remained, namely, the Government of India's pledge to the people
of Kashmir, or if you like, to the people of the world that this
matter (the matter of accession) can be reaffirmed or cancelled or
cut out by the people of Kashmir if they wish to.
" We want no people in the territory of India against their will
and with the help of armed forces. If the people of Jammu and
Kashmir State wish to part with us, they can go their way and we
shall go ours. We want no forced marriages and no forced unions.
This great Republic of India is a free, voluntary, friendly and
affectionate union of the States of India ....

" We openly said to them (the people of Jammu and Kashmi

and to the world that we will give them a chance to decide, and
31 Article 370 (3) of the Constitution of India.
32 First Schedule. Part B. Entry No. 2; and the Article 266 (21) b) of the
Constitution of India.

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348 International and Comparative Lawz Quarterly [VOL. 2

will stand by that decision in this matter. Therefore, we must

honour that pledge." 33
ABOLITION OF MONARCHY

The next question is about the competence of the Constituent

Assembly to abolish the monarchy. Or, can the Constituent
Assembly proclaim the State a republic within the Indian Republic?
Though the Indian Union is a Republic, many of its component
parts are monarchies, though Constitutional monarchies. The
annual payment made to these rulers is known as the Privy Purse,
the amount of which varies from monarch to monarch. The heads
of the units of the Indian Union are similar in one respect, that
none of them is an elected head; either they are hereditary princes
or the periodically nominated Governors or Chief Commissioners.
Speaking from the floor of the House of People on May 22, 1952,
the Prime Minister of India, Mr. Nehru, said that except for the
three subjects, foreign affairs, communication and defence, the
Constituent Assembly of the State has every right to pass any law
it chooses.

The Constitution (application to Jammu and Kashmir) Order,

1950, provides for the application of Article 262 of the Indian Con-
stitution to the States. That Article lays down that while making
rules or passing laws the State and the Union Government shall have
regard to the assurances given under any covenant or agreement.
This Order was passed by the President of the Indian Union in
consultation with the Government of Kashmir. As has been said
above, Article 370 (2) of the Indian Constitution specifically lay
down that any such interim arrangement or order passed by th
President shall be placed before the Constituent Assembly of th
State and that Assembly is competent to take any decision on tha
Thus the question of abolition of the monarchy from the State
a matter which relates to the internal arrangement of the State
Jammu and Kashmir; as such, in the submission of the writer,
whether the State wants to become a republic or wants to remain
monarchy is a matter over which the State Constituent Assemb
possesses full competence. The sovereignty of the Constitue
Assembly is limited only with respect to the three subjects whi
have been delegated to the Indian Union. It may quash the 1950
Order of the President; may abolish the monarchy, may provid
for another hereditary head of the State; may provide for a
permanently or periodically nominated or elected head of the State;
may augment the powers of the Union; and, in short, may do any-
thing which does not infringe the three reserved subjects.
.3 The Statesman, August 8. 1952.

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JULY 1953] Kashmir and the Indian Union 349

In some quarters it has been asserted that the termination of the

monarchy in the State could only be done by changing the Indian
Constitution and that it is against the grain of the Constitution.
Reliance is placed on the Explanation to Article 370 (1) (ii), which
runs :

" For the purpose of this Article, the Government

means the person for the time being recognised by th
the Maharaja of Jammu and Kashmir acting on the a
Council of Ministers for the time being in office
Abdulla's ministry) under the Maharaja's Proclamat
fifth day of March, 1948."
The protagonists of that view, it appears, have for
general scheme of the Constitution in which this Artic
also the other provisions of the same Article. Article
in Part XXI of the Constitution, which is entitled
and Transitional Provisions." The very title clearly
bold relief the nature of the provisions of the Part. E
provision of this Part could be terminated without nec
amendment to the Constitution. The clause (3) of
reads:

"Notwithstanding anything in the foregoing provisions of t

Article, the President may, by public notification, declare that t
Article shall cease to be operative or shall operate only with suc
exceptions and modifications and from such date as he may speci
" Provided that the recommendation of the Constituent Assem
of the State referred to . . . shall be necessary before the Presid
issues such a notification."

Thus this Article, which contains practically the whole of the

provisions relating to Jammu and Kashmir in the Indian Constitu
tion, can be altered, modified, or abrogated by a simple publi
notification of the President, without necessitating any Constitu-
tional amendment, though the President alone cannot do any o
those things by a public notification. He can do so only on th
recommendation of the Constituent Assembly. It is conceived tha
when once that Assembly makes recommendations it would b
rather difficult for the President not to comply with them. The
only ground, in the opinion of the present writer, on which such
refusal could be made would be that the proposed recommendations
are not within the competence of the Assembly. Otherwise, it is
submitted, such a refusal would be unconstitutional.
That the Constituent Assembly is competent to declare the
State a republic also becomes clear when we realise that it is in
accordance with the spirit of the Constitution of India and the
National Movement of Kashmir and India.
.C.L.Q.-2 23

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350 International and Comparative Law Quarterly [VOL. 2

The national movement in the State of Jammu and Kashmir

was fought on the demand for the abolition of its medieval and feudal
structure and the establishment of a democratic and progressive
regime. In " New Kashmir," the policy document of the National
Conference, the following words appear:
" Freedom from all forms of economic exploitation is the only
true guarantee of political democracy and, without it, political
democracy is a mere shibboleth."34
That the establishment of a democratic regime throughout India
has been the basis of the Indian national movement becomes clear
from the resolution of the Indian National Congress, passed in its
Haripura Session:
" The Congress stands for the same political, social and economic
freedom in the States as in the rest of India and considers the States
as an integral part of India which cannot be separated ....
"The Congress therefore stands for the full responsible govern-
ment and the guarantee of civil liberties in the States and deplores
the present backward conditions and utter lack of freedom and
suppression of civil liberties in many of these States." 35
It was under the treaty of Amritsar that Maharaja Gulab Singh
acquired the Kingdom of Jammu and Kashmir from the British
on the payment of 75 lakhs of rupees. Thus, to overthrow the
sovereignty of the Maharaja, so acquired over the people under a
commercial deal, was naturally the first and foremost aim of the
national movement of the Kashmiri people. This was very
succinctly maintained by the National Conference in its memo-
randum submitted to the Cabinet Mission:
" No deed of sale, however sacrosanct, can condemn more than
four million men and women to the servitude of an autocrat when
the will to live under his rule is no longer there."
Now when the people of Kashmir and Jammu have got the reins
of the government in their own hands, they are perfectly within
their powers to put into effect their cherished aims and ideals. In
his inaugural address to the Constituent Assembly, the Chief
Minister of the State, Sheikh Abdulla, outlined four major issues on
which the Constituent Assembly will have to take decision: the
future of the ruling dynasty; payment of compensation for the
land transferred to cultivators under the Big Landed Estate Act;
ratification of the State's accession to India; and the framing of a
34 See the policy document of the National Conference of Jammu and Kashmir,
"New Kashmir," published by the Kashmir Bureau of Information. And
also see " The Kashmir Problem: Political and Economic Background," by
P. N. Dhar, in Indian Quarterly, Vol. VII, No. 2, pp. 143-62.
35 Quoted by late Sardar Vallabhbhai Patel, the Home Minister of India, in
his speech made before the Constituent Assembly of India in October, 1949.
See White Paper, p. 131.

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JULY 1953] Kashmir and the Indian Union 351

constitution for the State. Subsequently the Constituent Assem

appointed a Basic Principles Committee to go into the matter. T
Basic Principles Committee presented its interim report on the
future of the ruling dynasty on June 10, 1952. The Chairman o
the Committee speaking before the Assembly said:
" Sovereignty, which is the right of the people, cannot b
usurped by any one person. Forty lakhs of people of this St
can elect anyone, whomsoever they want, as their head ....
"From the beginning of human history people have struggle
to obtain their right of sovereignty against those who have bee
usurping it and if today the people of Kashmir take this decisio
of abolishing the ruling dynasty it is not under any sense o
vindictiveness or provincial or religious feelings, but it is on th
basis of the principle that the sovereignty rests with the people."
The Committee in its Report said:
" (a) the form of the future Constitution of Jammu and Kashm
State shall be wholly democratic;
" (b) the institution of the hereditary rulership shall be
terminated, and
" (c) the office of the head of the State shall be elected." 37
The Committee further said:

" The Basic Principles Committee feels that the time has com
when a final decision should be taken in regard to the institution
hereditary rulership." 38
Subsequently, in the second week of August, 1952, the repre-
sentatives of the Constituent Assembly came to India to discuss
with the Government of India the constitutional relationshi
between the State and the Indian Union; as a result of these
talks the representatives of the State Assembly and the Government
of India reached an agreement with respect to these issues.
In his report to the Constituent Assembly about the Delhi Pact,
on August 11, 1952, Sheikh Abdulla said:
" I am glad to inform this House that the Government of India
have appreciated the principle proposed by the Basic Principles
Committee as adopted by this Assembly in regard to the abolition
of the hereditary rulership of the State. In order to accommodate
this principle, the following agreement was mutually agreed upon:
' (i) The head of the State shall be the person recognised by the
President of the Union on the recommendation of the
legislature of the State.
(ii) He shall hold office during the pleasure of the President

36 See The Hindustan Times, June 10, 1952.

37 Ibid.
38 Ibid.

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352 International and Comparative Law Quarterly [VOL. 2

(iii) He may, by writing under his hand addressed to the

President, resign his office.
(iv) Subject to the foregoing provisions, the head of the State
shall hold office for a term of five years from the date he
enters upon his office:
Provided that he shall, notwithstanding the expiration
of his term, continue to hold office until his successor
enters upon his office.' " 39
Embodying the above agreement, the Constituent Assembly of
Jammu and Kashmir on August 21, 1952, unanimously passed a
resolution providing for the abolition of the monarchy from the
State and for an elected head of the State.40

Thus, the institution of monarchy, which was, in the words of

the Report of the Basic Principles Committee, " a relic of the feudal
system which was based on mass exploitation of the resources of a
country, and the labour of its people for the self-aggrandisement
of an individual and a limited class of his associates," has been
happily abolished from the State and with the full support and
concurrence of the Government of India.4

CONCLUSION

By virtue of the Instrument of Accession and under the Indian

Constitution, the State of Jammu and Kashmir is part and parcel
of the Indian Union. It is a Part (B) State of the Indian Union.
But the Indian Union is not a federation whose component parts
are equal inter se. Not only do we have three broad categories of
them, but each category in itself contains varieties. This is most
prominent among Part (B) States. Under Article 371 of the
Constitution, Part (B) States " shall be under the general control
of, and comply with such particular directions, if any, as may from
time to time be given by, the President." This Article is now not
applicable to all States. By a proviso to the same Article, the
President has been given power to exempt any State from the
application of that Article on the request of the State concerned.42
The conditions on which the princes still exist in the States are not
identical in all States. The State of Jammu and Kashmir is also
an entirely different type of Part (B) State.

39 The Statesman, August 12, 1952.

40 The Statesman, August 22, 1952. The new head of the State has been named
as "Sadar-I-Riyasat." It has been proposed by the Constituent Assembly
of the State that the first elected should be the present prince of the State.
41 In the first week of August, 1952, the national leaders of Kashmir and the
representatives of the Government of Kashmir came to Delhi for consultation
with the Government of India and settled the various Constitutional issues.
42 Article 371.

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JULY 1953] Kashmir and the Indian Union 353

The Part (C) States are also not equal inter se. Some of the
have now been provided with some sort of responsible governmen
while others have not been; thus at present there are at least tw
distinct categories of Part (C) States.
It has been argued that if the State of Jammu and Kashmir i
"permitted " to have an elected head it would create an anomalou
position.43 But, if we talk of anomalies, there already exist man
anomalies, and it would not add much to them. Probably it wou
be a welcome anomaly for the lovers of democracy.
It is also argued that such a position would have serious politic
repercussions.44 If we start on the assumption that throughout o
national movement we fought for democracy and progress
thought, then the abolition of monarchy from Kashmir should n
worry us; sooner or later all monarchies must go from Indi
Viewed in this perspective the State of Jammu and Kashmir is b
a pioneer in this great task-the democratisation of the whole of
India-and hence their step is to be acclaimed and applauded
There are many issues with respect to Kashmir which are yet
emerge with clarity; much would depend upon the Constitue
Assembly of the State which is in the process of framing a Consti
tion for the State. The chapter on the Fundamental Rights of th
Indian Constitution is not applicable to the State; so also the
jurisdiction of the Supreme Court of India extends only in a limi
sense. It is conceived that the Constituent Assembly would fram
its own Fundamental Rights and several other things. It is cl
from the deliberations of the Assembly and the speeches of some
its members that the State of Jammu and Kashmir is to have a
unique place in the constitutional scheme.
Thus the picture of the new Kashmir which is unfolding itself
gradually and slowly is of a Kashmir possessing wide autonomy, a
member of the Indian Union, a Republic within Indian Republic;
and a Kashmir whose defence, foreign affairs and communications
will be ruled by the Indian Union, and for the rest it would be
sovereign of its own fate, builder of its own destiny.
PARAS DIWAN.*

43 The Hindustan Times, August 21, 1952.

44 Ibid.
* B.A., LL.M., Lecturer, Faculty of Law, University of Delhi.

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