Zafar Kamili

Unit V BALLB 3rd Semester

Instrument of Accession & Special status of J&K

Instrument of Accession
The Indian Independence Act, 1947 provided for the creation of two
independent dominions: India and Pakistan from 15 th august, 1947. Jammu
and Kashmir was a princely state at the time of India’s Independence. The
relationship between the British crown and Princes was described as
‘Paramountcy’. These states numbering more than 600 (although some say:
562,565,584) had no International status, their inhabitants were British
Subjects. Foreign affairs, admiralty and maritime rights were under the control
of the paramount power. Most often subject to the restrictions indicated,
internal affairs of an Indian state were the Prince’s responsibility. In each state
there was a member of the Indian Political Department as Resident or Agent,
whose duties were to advice the ruler and report to the Viceroy.

After 1947 these States were given an option to accede to either of the two
Dominions. Under section 7(1)(b)of this Act, the Paramountcy of His Majesty
over these States lapsed and with this lapsed all treaties and agreements in
force at the date of the passing of the Act between His Majesty and the rulers
of the Indian States and all obligations of His Majesty or the , thereof. Most of
these States acceded to one Dominion or the other keeping in view the
geographical, political, cultural and economic affinity of the concerned State
with one or the other Dominion. But Kashmir with some other states remained
undecided. However Maharaja Hari Singh, the ruler of the Kashmir negotiated
a standstill agreement with both the Dominions, fearing a breakdown of the
communication system with Pakistan and rich export trade with India. The
history of the standstill agreements is contained in the series of telegrams. As a
result of the telegrams Pakistan agreed to a standstill agreement vis-a vis
State’s communication, supplies and post and telegraphic arrangement.
However the government of India did not respond immediately and desired
time.

Subsequently, Kashmir came under the Tribal attack which created abnormal
conditions in the State. Amidst these abnormal conditions the Maharaja
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desired help from India which resulted into accession with the new dominion
of India. The Instrument of Accession designated defense, external affairs and
communication as the exclusive domain of the central government with other
plenary powers to remain vested with the state government. The Governor
General of India, Lord Mountbatten while accepting the Instrument of
Accession appended a letter written to Maharaja, which provided:

In the special circumstances mentioned by your Highness, my government have

decided to accept the Accession of Kashmir state to the Dominion of India.
Consistently, with their policy that in case of any state, where the issue of accession
has been the subject of dispute, the question of accession should be decided in
accordance with the wishes of the people of the state, it is my governments wish as
soon as the law and order have been restored in Kashmir, and her soil cleared of the
invader, the question of the state’s accession should be settled by a reference to the
people….. (For full text of the Letter see S. L. Poplai, select documents on Asian Affairs
Vol.1 1959)

Meanwhile, India submitted a complaint against Pakistan under Article 35 of

the Charter of United Nations. The allegations were vehemently contested by
the Pakistan and in the process the legality of accession became the subject
matter of the debate. This resulted in a series of Security Council Resolutions
requiring a plebiscite for the people of Kashmir to decide on the country to
which they wished to accede. The issue of Kashmir in the light of these
resolutions continues to remain on the agenda of the Security Council. The
Security Council declared that the situation in Kashmir was likely to endanger
international peace and security and consequently proposed a commission of 5
members known as UNCIP (United Nations commission for India and Pakistan)
to provide their good offices towards resolution. A feature of the UNCIP plan
as it developed in practice was the creation of United Nation’s military
presence in the disputed territory who continue to remain as observers in both
areas of undivided J&K.

On the basis of the recommendations of the UNCIP, the Security Council

adopted a number of resolutions including that the question of accession will
be settled through democratic method of free and impartial plebiscite. Instead
of pursuing and implementing the resolution of the Security Council for
permanent settlement of Kashmir dispute the, Union of India unilaterally
adopted many measures including the incorporation of article 370 in the
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constitution of India and convening of the Constituent Assembly for framing

the constitution of the state. The Constituent Assembly of J&K apart from
drafting the state constitution adopted a Resolution, whereby, they ratified the
instrument of accession. However, Pakistan challenged the ratification before
the Security Council. The Security Council, on 24 Jan 1957, resolved that the
ratification of accession by the Constitution Assembly of the state can’t be a
substitute and alternative for the Security Council Resolution which provided
for a plebiscite. Since then the legality of the instrument of accession and the
relevance of the Security Council resolutions continues to remain a basic point
of discard in relations between India and Pakistan.

Special status of Jammu and Kashmir

Article 370 of the Constitution of India provided for special status for the State
of Jammu and Kashmir. This article continues to remain widely misunderstood
and misinterpreted Article.

Article 370
Temporary provisions with respect to the State of Jammu and Kashmir:-

1. Notwithstanding anything in this constitution,-

a) The provisions of article 238 shall not apply in relation to the
State of Jammu and Kashmir ;
b) The power of Parliament to make laws for the said State shall
be limited to-

(i) those matters in the Union List and the Concurrent List which, in
consultation with the Government of the state, are declared by the
President to correspond to matters specified in the Instrument of
Accession governing the accession of the State to the Dominion of
India as the matters with respect to which the Dominion Legislature
may make Laws for the State; and
(ii) such other matters in the said Lists as, with the concurrence of the
Government of the State, the President may by order specify.
Explanation -For the purpose of this article, the Government of
the State means the person for the time being recognized by the
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President as the Maharaja of Jammu and Kashmir acting on the

advice of the Council of Ministers for the time being in office under
the Maharaja’s Proclamation dated the fifth day of March, 1948;
(c) The provisions of article 1 and of this article shall
apply in relation to that State;
(d) Such of the other provisions of this Constitution shall
apply in relation to that State subject to such exceptions and
modifications as the President may by order specify:

Provided that no such order which relates to the matters specified

in the Instrument of Accession of the State referred to in paragraph
(i) of sub-clause (b) shall be issued except in consultation with the
Government of the State:

Provided further that no such order which relates to the matters other than
those referred to in the last preceding proviso shall be issued except with the
concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph

(ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of
that clause be given before the Constituent Assembly for the purpose of
framing the Constitution of the State is convened, it shall be placed before such
Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article the

President may, by public notification, declare that this article shall cease to be
operative or shall be operative only with such exceptions and modifications
and from such date as he may specify:

provided that the recommendation of the Constituent Assembly of the

State referred to in clause (2) shall be necessary before the President issues
such a notification.

The very fact that the Article 370 begins with the words, “Notwithstanding
anything in this Constitution….” Shows that it is a self-contained provision
which has a specific purpose of its own. Wanchoo J., in P. L. Lakhanpal Vs
President of India, AIR 1961 SC 1519. has observed that Article 370 clearly
recognizes the special position of the State of Jammu and Kashmir. A careful
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examination of the provisions of Article 370 clearly shows that at the time of
the commencement of the Constitution on January 26, 1950, the real basis of
constitutional relationship between the State of Jammu and Kashmir and the
Union of India was determined by :

(i) The Instrument of Accession, and

(ii) Article 370 of the Constitution.

By virtue of Article 370, the Constituent Assembly of the State as

mentioned in the Article was given authority not only to frame a separate
Constitution for the State but also to concur in the application of the Indian
Constitution. The further progress of the Constitutional relations was thus
contingent on the recommendations of the Constituent Assembly of the State.

In exercise of the power conferred by Article 370 (i) (ii), the President of
India issued the Constitution (Application to Jammu and Kashmir) Order, 1950.
The Order specified the matters with respect to which the Union would be
competent to make laws for the State. The subject matters of the order
elaborated the subjects already specified in the Instrument of Accession.

The Constitutional (Application to Jammu and Kashmir) Order 1954

In exercise of the powers conferred by clause (1) of Article 370 of the

Constitution of India, the President with the concurrence of the State
Government issued this order to implement Delhi Agreement and supersede
the Constitutional order of 1950.The order continues to remain the basic order
which elaborates the Constitutional position of the State of Jammu and
Kashmir in its relationship with the Union of India. The Constitution of India as
modified by the order 1954 applies to the State of Jammu and Kashmir subject
to such exceptions and modifications as mentioned in the order.

In part I of the Constitution of India dealing with the Union and its territory, in
its application to the State of Jammu and Kashmir, it is provided that no bill to
alter the territory or areas, boundaries or name of the State shall be
introduced without the consent of the State legislature. Therefore it seems
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that in case of Jammu and Kashmir a strict federal principle ensuring the
territorial integrity by virtue of the provision was followed.

In part II dealing with the fundamental rights, a new Article 35-A was added in
its application to the State of Jammu and Kashmir.

Article 35-A: Saving of laws with respect to permanent residents

and their rights:
Notwithstanding anything contained in this Constitution, no
existing law in force in the state of Jammu and Kashmir, and no
law hereafter enacted by the Legislature of the State, -
(a) defining the classes of person who are, or shall be, permanent
residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights and
privileges or imposing upon other persons any restrictions as
respects -
(i) employment under the state Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the
State Government may provide;

shall be avoid on the ground that it is inconsistent with or takes

away or abridges any rights conferred on the other citizens of
India by any provision of this part.

Residuary power continued to remain with the State as Article 248 dealing with
such powers of legislation was not made applicable to the state by the said
order.

Part XVIII dealing with emergency provisions was applied with some
modifications i.e., Article 356 dealing with the failure of Constitutional
machinery was not to be applicable to the State and provisions for same was
adopted by the Constitution of Jammu and Kashmir in section 92.
To Article 368 dealing with power and procedure for amendment of the
Constitution of India to clause (2) of Article 368, the following proviso
was added.
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provided further that no such amendment shall have effect

in relation to the State of Jammu and Kashmir unless
applied by the order of the president under clause (1) of
Article 370.

The Process of Erosion of the Special Status

The Constitutional position of the State of Jammu and Kashmir since it
became a constituent unit of the Union of India has not remained static. More
and more provisions of the Constitution of India have been applied to the state
through various Presidential Orders. While extending these provisions, not
only the autonomy or special status of the State has been eroded but equally
the spirit behind the incorporation of Article 370 in the constitution of India
has been defeated . In the process some basic features of the State
Constitution have been equally damaged.

In 1964, the provisions of the Constitution of India dealing with the failure
of the Constitutional machinery in states., viz, Articles 356 and 357 were
extended to the State by the Constitution (Application to Jammu and Kashmir)
Order 1964”.It is to be noted here that there was already a provision in the
Constitution of the State under which Sadar- I – Riyasat with the concurrence
of the president of India could proclaim emergency in case of failure of
Constitutional machinery in the state.

A change in the headship of the State took place in 1965, when by the
Constitution (Application to Jammu and kashmir) Second Amendment
order,1965, it was provided that reference to the Sadar- I – Riyasat in the
explanation of Article 370 would be construed as reference to the ‘Governor.’

In 1972 by the Constitution (Application to Jammu and Kashmir ) Second

Amendment order, 1972, Article248 of the Constitution of India dealing with
the residuary powers of legislation which was not applicable to the State of
Jammu and Kashmir earlier was made applicable.

Since Articles 200 and 201 of the constitution of India were not applicable
to the state of Jammu and Kashmir and there was no provision identical to
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Article 200 relating to the reservation of laws passed by the State legislature
for consideration of the President, the Constitution (Application to Jammu and
Kashmir) Amendment Order,1975 applied Article 368 in a modified form of
providing that after clause (3) in its application to the state, the following
clause were added:

(4) No law made by Legislature of the State of Jammu and Kashmir

seeking to make any change or in the effect of any provision of the
Constitution of Jammu and Kashmir relating to :-

(a) Appointment, powers, function, duties, emoluments, allowances,

privileges or immunities of the Governor; or
(b) Superintendence, directions and control of elections by the Election
Commission of India….adult suffrage and composition Legislative
Council being matters specified in section 138,139,140 and 150 of the
Constitution of Jammu and Kashmir, shall have any effect unless such
law has, after having been reserved for the consideration of the
president , received his assent.

Apart from these important Constitutional orders, a numbers of orders

extended to the State have facilitated the application of scores of
legislations to the State of Jammu and Kashmir which have to a greater
extent diluted the autonomy or special status of the State of Jammu and
Kashmir. The special status guaranteed by article 370 continued with all its
erosions till 5th of August 2019. On 5th of august the president of India
unilaterally issued a notification abrogating article 370 and giving assent to
the Reorganisation Act which made all Union laws applicable to the Jammu
and Kashmir even the state was deprived of its statehood and converted
into a Union Territory. Further Ladakh a part of the state was converted
into another Union Territory. The legality of the Order and Act were
challenged in a number of petitions before the Supreme Court.The matter is
still sub judice.