KASHMIR'S 1 ACCESSION TO INDIA

ADARSH SEIN A N A N D 2
1. Historical background
(a) The origin and political situation in Jammu and Kashmir before
Indian Independence
Situated at the apex of the Indo-Pakistan sub-continent, Kashmir
is of great strategic importance owing to the fact that to its east lies
Tibet; to the north-east, Sinkiang provinces of China; to the north-
west Afghanistan and a few miles from Afghanistan lies Russian
Turkestan ; to its west lies Pakistan and to its south lies India. The
actual and potential importance invites the covetous attention of its
neighbours.
Ever since the emergence of the two independent States of India
and Pakistan in the Indo-Pakistan sub-continent on August 15, 1947,
Kashmir has figured as the most critical problem in the relations
between them. This issue of Kashmir arises out of its accession to
India. In these pages an attempt is made to study the events leading
to Kashmir's accession to India and the validity in law of that
accession.
The State of Jammu and Kashmir as it exists today was created
by the British in 1846. In order further to 'weaken the Sikhs5 3 after
their defeat at Sobraon, the British Government separated Kashmir
from the Sikh empire and 'sold' it to Raja Golab Singh, Ruler of
Jammu. By the Treaty of Amritsar 4 —notoriously referred to in
Kashmir as the Sale Deed of Kashmir—the British Government made
over to Raja Golab Singh and the heirs male of his body for ever and
in independent possession, the State of Jammu and Kashmir for a
consideration of seventy-five lakhs of British Indian Rupees.

1. The term ' K a s h m i r * as it is generally used, applies to the entire State of

Jammu and Kashmir, although in actual effect it is the name of only one part.
2. The author was a Research Student in the Faculty of Laws at the University
College, London, from where he obtained Ph.D. on his thesis " The development of
the Constitution of Jammu and Kashmir " in May, 1963.
3. Hardinge to Ripon, 19 February, 1846, Ripon Papers (B.M.) Add. Mss.
40875—*' A Rajpoot State independent of the Sikhs on the right flank of our«Beas
frontier would strengthen us and weaken the Sikhs—and this I consider most
desirable ".
4. Treaty of Amritsar, March 16, 1846.

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70 KASHMIR'S ACCESSION TO INDIA

The Dogra Rulers (i.e. Raja Golab Singh and his heirs) thus
secured not only the 'sovereignty* over the State of Jammu and
Kashmir but also its 'ownership' and so they did not hesitate to levy
very heavy taxes. Everybody and everything was taxed. " Carpenters,
boatmen, butchers, bakers, even prostitutes were taxed ". 6 At the
time of the transaction, no consideration was given to the moral effects
of the deed. An area of 84,471 square miles with a population of 2J
million was passed on to one single individual " for ever and in
independent possession". Since absolute autocracy was the principle
of political life at that time in the Indian Native States there was no
voice raised against this transaction in the State, but outside the State
there was some sympathy for the masses in Jammu and Kashmir.
"Towards the people of Gashmeer we have committed a
wanton outrage, a gross injustice, and an act of tyrannical
oppression which violates every human and honourable senti-
ment, which is opposed to the whole spirit of modern civilisation,
and is in direct opposition to every tenet of the religion we
profess ". 6
However, the rule of the Dogra rulers was " autocratic and
oppressive". 7 All high offices in the state were filled either by members
of the Ruler's own community or by men imported from the neigh-
bouring Punjab. As education spread, resentment arose against this
outside encroachment and for the first time the people of the State
united and demanded protection of their basic fundamental rights.
As a result of this demand the Maharaja gave a definition of the term
"State Subject" in 1927 and further provided that 'mulkis' (people of
the State)\vould be preferred to outsiders. This gave a new hope to
the people of the State and they began to struggle for their rights. In
1931 there was a revolt in Kashmir by Muslims, who were the
oppressed class, against communal discrimination. As a result of this
popular revolt, the Maharaja was compelled to set up an inquiry
commission under the chairmanship of Mr. (later Sir) B. J. Glancy.
The commission recommended that Muslims should be given more
representation in the services and that an Assembly should be

5. Lord Birdwood, Two Nations and Kashmir (Robert Hale, London, 1956),
p. 31.
$> Robert Thorpe, Cashmeer mis government, (Longmans Green, London, 1870),
p. 66.
7. Government of I n d i a : Kashmir^-a factual survey, p» 22.

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 ADARSH SEIN AN AND 71
8
established in the State . The Maharaja, on the recommendations
of the commission in 1934 established a Legislative Assembly in
Kashmir, called the 'Praja Sabha'. However the recommendation
of an elected majority in the Assembly was ignored; there was no
official majority and the legislative powers of the Assembly were very
restricted.
Previously there had been no political party in the State but in
October 1932 there was formed the All Jammu and Kashmir Muslim
Conference, which for the first time met under the presidentship of
Sheikh Mohammed Abdullah in Srinagar. The Conference protested
to the Maharaja against his failure to implement the recommenda-
tions of the Commission but no notice was taken of the complaint.
On January 29, 1934, Sheikh Abdullah said :
" T h e people of this country did not spill their blood for such
a mock show What hopes can the people of this country have
in this kind of representative Assembly where the dead weight of
the official and nominated majority will always be ready to crush
the popular voice " 9 .
In the same year the Conference sent another memorial to the
Maharaja demanding 'responsible government 5 but as was expected,
the Maharaja refused to consider this request either. The Muslim
Conference then called on the people to observe a 'responsible
government day1. The day was observed but very few non-Muslims
participated, so Sheikh Abdullah decided to seek non-Muslims
support. He appealed to the non-Muslims in the State to join hands
with the Muslim Conference to fight against the Government in 1937,
but unfortunately his suggestion was misrepresented as ca clever move
to deceive the minorities' 10 . However, this did not put Sheikh
Abdullah off and he kept on striving for unity among all
communities.
In 1938, Sheikh Abdullah moved a resolution in the working
committee of the Muslim Conference that the Conference should
change its name from Muslim Conference to National Conference and
that it should throw open its doors to non-Muslims. On 28th June, 1938

8. Report of the Commission appointed under the Order of His Highness the
Maharaja Bahadur, dated 12th November, 1931, to enquire into grievences and com-
plaints (unpublished).
9. All India State People's Conference: Kashmir, Bombay, 1939, p. 12.
10. Kashmir, p. 14.

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72 KASHMIR'S ACCESSION TO INDIA

a meeting of the working committee was held to reconsider this

resolution which was passed by a majority of 17 against 3 votes. 11
Hindus and Sikhs were now able to join in the national struggle.
Realising that the people of his State were now united, the
Maharaja of Kashmir promulgated a Constitution for the State but its
most striking feature was that all powers, legislative, executive and
judicial, were inherent in His Highness 12 and the Council of
Ministers was responsible to him and not to the Praja Sabha1^.
Although the Maharaja had hoped that after the promulgation of the
Constitution the people would abandon their struggle, yet the people
of the State did nothing of the kind and continued in their struggle
for a responsible government in the State.
The " Quit India " movement, demanding the total withdrawal
of the British from the sub-continent, was started by Congress in
August 1942 in British India and found supporters in Kashmir. " I n
Kashmir the Nationalists did their best to kick up a row in support of
the Congress ", observes Bazaz u. However, the movement in India
did not have the sympathy of the All India Muslim Leauge, of which
Mr. Jinnah was the President and in Kashmir the non-nationalist
Muslims separated from the National Conference and again revived
the Muslim Conference under the Presidentship of Mr, Ghulam Abbas
with a policy similar to that of the All India Muslim Conference. An
open conflict between the National Conference and the Muslim
Conference was now inevitable. The National Conference was
fighting for responsible government in the State but the Muslim
Conference offered no co-operation.
In 1944 Mr. Jinnah, who was by then pretty certain to attain his
object of a separate State for Pakistan, visited Kashmir. He advised
the Muslims of the State to organise themselves under one banner
and on one platform 15. The Nationalists expressed themselves totally
opposed to this idea and the National Conference commanded so

11. Ibid,, p. 19. Shivpuri, S. N . : The Grim Saga, Calcutta, 1953, p. 32. Shiv-
puri's suggestion that Gulam Abbas seconded the resolution recommending the con-
version of Muslim Conference into the National Conference is not supported by any
other writer, so far as is known, and nor do the latter events lend any support to it.
12. Section 5 : Act X I V of s. 1996 (A.D. 1939).
13. Ibid, Section 7.
14. Bazaz, P. N . History of Struggle for freedom in Kashmir, Kashmir Publishing
Company, Delhi, 1954, p. 197.
15. Bazaz, P.N., op. cit, p. 212.

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much respect in the State that the only public meeting which
Mr. Jinnah attended broke up amidst shouts of 'Go back Jinnah '. It is
on record that Mr. Jinnah had to be escorted to a place of safety by
the State police 16 . Mr. Jinnah was shocked and outraged at such
treatment from the predominantly Muslim population of Kashmir.
But it was obvious that, whereas in 1931 religion had played the
dominant role in arousing the passions of the Muslims of Kashmir,
by 1944 religion had been consciously divorced from politics 17. Sheikh
Abdullah, whose "whole background is one of nationalism,
secularism and left wing socialism" 18 now started the " Q u i t
Kashmir " movement in imitation of Congress's " Q u i t India " move-
ment, designed to expel the Maharaja from the State. The Muslim
Conference opposed this Movement and Gulam Abbas, the President
of the Muslim Conference described the " Quit Kashmir " movement
as a'council of despair 519 . In other words the Muslim Conference
was compelled to support the actions of the Maharaja's Government,
which it had hitherto been opposing. The Muslim Conference could
not control the tenacious resistance of the people of the State to
Mr. Jinnah's ideology and, as Brecher observes, at this stage, *' the
Muslim Conference was confronted with a profound dilemma, namely
its virulent opposition to the secularism of the National Conference,
and the realisation that its rival (Sheikh) was indispensable to its goal—
the integration of Kashmir into Pakistan " 20. Gulam Abbas appealed
to the Maharaja to release Sheikh 21 ; The Maharaja was quick to
realise the danger from the group and so the prominent Muslim
Conference leaders were also arrested 22 .
Thus, while reaction and persecution were in complete charge of
the political movement in Kashmir, the fight for independence was
in full swing in British India. On the eve of Indian Independence
two political organisations in Kashmir—the National Conference and
the Muslim Conference—were both Muslim led and largely Muslim
supported. The former claimed the support of all sections of the
people and the latter of the non-nationalist Muslims. But to achieve
anything substantial the two had to be brought together. Attempts to

16. Govt, of J a m m u and Kashmir : A conflict-between two ways of life (n.d,,

Srinagar), p. 6
17. Bazar, P.N op. cit , p . 237.
18. Lord Birdwood, "Kashmir Dilemma" in Fortnightly Review, August, 1952.
19. Times, London, 30/7/1946.
20. Brecher, Michael: The Struggle for Kashmir, p. 16.
21. Dawn, (New Delhi), 17/9/1946.
22. Civil and Military Gazette, (Lahore), 29/10/1946.

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74 KASHMIRIS ACCESSION TO INDIA

reconcile Sheikh Abdullah with Mr. Jinnah " failed because, both
men being conscious of their own position and importance, neither
could bring himself to make the first move " 23. The bad blood
between the two groups continued and later events showed that this
bad blood was largely responsible for what happened in the state
after Indian independence. Sheikh himself admitted to Mr. Joseph
Korbel in September 1948 that " t h e split in 1939 had been the
beginning of all their troubles 'V24 The significance of these events
for the purpose of this study is this: the demand of the Kashmir
people to have a responsible Government and their struggle to achieve
it are the basic causes of the constitutional changes in Kashmir since
Indian independence. Kashmir's accession to India must, it is
contended, be viewed in the general context of Kashmir's struggle for
a responsible Government, taking into account the manner in which
that struggle achieved its objective.
A British Cabinet Mission consisting of Lord Pethick-Lawrence,
Sir Stafford Cripps and Mr. A. G. Alexander, arrived in India on
March 23, 1946, in order to find a solution for the 'problem of India'.
As soon as it arrived in India, it received a telegram from Sheikh
Abdullah:
" As the Mission is at present reviewing the relationship of
the Princes with the paramount power with reference to treaty
rights, we wish to submit that for us in Kashmir re-examination
of this relationship is a vital matter because a hundred years ago
in 1846 the land and people of Kashmir were sold away by the
British for 50 lakh of British Indian Rupees. The people of
Kashmir are determined to mould their destiny and we appeal to
the Mission to recognise the justice and strength of our cause." 25
A few days later the National Conference submitted a memo-
randum to the Cabinet Mission reiterating the demand :
" Today the National demand of the people of Kashmiris
not merely the establishment of responsible Government, but the
right to absolute freedom from autocratic rule. The immensity
of the wrong done to our people by the sale deed of 1846 can only
be judged by looking into the actual living conditions of the

23. Lord Birdwood, op. cit,, p. 65

24. Joseph Korbel, Danger in Kashmir, (Princeton University Press), p. 23.
25. As quoted by Sheikh Abdullah : Address to the Jammu and Kashmir Constituent
Assembly, (November 5, 1951), p . 7.

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 ADARSH SEIN ANAND 75

people. It is the depth of our torment that has given strength to

our protest '\ 2 6
However, the Cabinet Mission, while admitting the claims of the
Muslim League, and Congress in British India, refused to consider the
grievances of the State's people. On 25th May, 1946, the Mission
issued a Memorandum dated May 12, 1946, regarding the State
Treaties and Paramountcy. 27 Paragraph 5 reads:
" When a new fully self-governing or independent Govern-
ment or Governments come into being in British India, His
Majesty's Government's influence with these governments will not
be such as to enable them to carry out the obligations of para-
mountcy His Majesty*s Government will cease to exercise the
powers of Paramountcy. This means that the rights of the States
which flow from their relationship to the Crown will no longer
exist and that all the rights surrendered by the States to the
Paramount power will return to the States "
This clarified the position of the State. Since the British had
dealt with the Rulers only, to the exclusion of the State's people,
therefore sovereignty would revert to them and them alone. Although
measured by the standards of western democracy it was unjust;
that was the position taken by the British Government—the pioneer of
the Western Free Democracy. The "Chamber of Princes 5 ', which
the British Government recognised, was the " Chamber of Rulers "
and not of the States' people.
His Majesty's Government made a statement on June 3, 1947, 28
and gave the plan of the transfer of power. Inter alia it provided for
the creation of two independent dominions out of the provinces com-
prising British India. The plan provided that the Muslim majority
provinces should constitute the dominion of Pakistan and the Hindu
majority provinces the dominion of India. The position of the States
was dealt with in a small paragraph :
" H i s Majesty's Government wish to make it clear that the
decisions announced above (about the partition of British India)
relate only to British India and that their policy towards Indian
States contained in the Cabinet Mission Memorandum of 12th
May, 1946 (Cmd. 6835), remains unchanged ".

26. Ibid.t p. 7.
27. Cmd. 6835.
28. Cmd. 71-36,

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76 KASHMIRIS ACCESSION TO INDIA

This made it still clear that the communal basis of the partition
of India was not to affect the States at all, and that on the transfer of
power the States were to become independent with sovereignty vested
in the Ruler alone. The Cabinet Mission had indicated in its
Memorandum of May 12, 1946, that the States could enter into
relationship with the successor Government or Governments in
British India and Lord Mountbatten, the Governor-General of India,
addressing the Chamber of Princes on July 25, 1947, 29 told the
assembled Princes and their representatives that legally they were
independent but he advised them to accede to one or the other
Dominion before the transfer of power to ensure the continuance of
the existing relationship. He told them that they (the Rulers) were
free to accede to either Dominion and that they alone had the power
to take a decision for their States but he advised them that there were
certain "geographical compulsions " which could not be evaded. To
negotiate with the Rulers, two States Departments were established,
one for each Dominion. All except 3 Rulers acted on Lord Mount-
batten's advice and acceded to either Dominion before the date of
transfer of power. Kashmir was one of the three States which did not
accede to either Dominion, the other two being Hyderabad and
Junnagadh. In the Indian Dominion the Accession was to be made
under Section 6 of the Government of India Act, 1935, as adapted by
Section 9 of the Indian Independence Act, 1947.
A state could accede to either Dominion by executing an instru-
ment of Accession signed by the Ruler and accepted by the Governor-
General of the Dominion concerned. Legally the interest of India or
Pakistan in a particular State had no relevance; the decision whether
to accede or not and to which Dominion were not only independent of
such considerations but an exclusive right of the Ruler. 30
In Kashmir most of the leaders of the Muslim Conference and
the National Conference were in prison on 15th August, 1947, the day
of the transfer of power. But the imprisonment of their leaders did
not deter the people of the State from raising their voices and demand-
ing the establishment of responsible government. 31 Deprived of
British help, to which the Maharaja had hitherto been entitled to

29. Mouhtbatten, Lord, of Burma : Time only to look forward (Nicholas Kaye,
London), p. 52.
30. See Taraknath Das: "Status of Hyderabad during and after the British
Rule ia India " in 43 American Journal of International Law,
31. The Khidmat, (Urdu) Srinagar, 15/3/47.

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 ADARSH SEIN ANAND 77
u
supress internal rebellion and external aggression ", his position was
precarious. " He disliked the idea of becoming a part of India, which
was being democratised, or of Pakistan which was Muslim He
thought of independence 53 . 32 He offered to sign a standstill agreement
with both India and Pakistan with the object of continuing the exist-
ing relationship pending his final decision regarding the future of the
State. Though a standstill agreement was concluded between Kashmir
and Pakistan, for a variety of reasons no standstill agreement was
concluded between India and Kashmir. The " absence of a formal
agreement between India and the Maharaja was interpreted by the
Pakistan to mean that ultimately Kashmir would become a part of
Pakistan. 33 Lord Birdwood while dealing with this agreement has
remarked that it was just a device " which any prince could sign with
one or other of the Dominions in order to ensure that in cases where
the ruler needed more time to make up his mind, the normal services
...should continue, 31 and it would seem that Pakistan has exaggerated
the significance of the standstill agreement. But Pakistan started
putting pressure on the Maharaja to join Pakistan. Mr. Jinnah's
Private Secretary came to Srinagar and " H i s Highness was told that
he was an independent sovereign, that he alone had the power to give
accession ; that he need consult nobody, that he should not care for
the National Conference or Sheikh Abdullah that he need not
delegate any of his powers to the people of the State and that Pakistan
would not touch a hair of his head or take away an iota of his
power ", 35 if n e acceded to Pakistan. Indeed the National Conference
leaders feared that, if the state joined Pakistan, the Maharaja would
still retain his absolute power and this they resented. However, since
the Maharaja was toying with independence, he refused to take promises
literally. ".*.... that procrastinating prince hoped to triumph by
delay". 36 However events started moving faster on the Pakistan side and
on August 24,1947, Dawn, the Muslim League's official organ, wrote
"the time has come to tell the Maharaja of Kashmir that he must take
his choice and choose Pakistan. Should Kashmir fail to join Pakistan,

32. Brown, W. N. The United States and India and Pakistan, p. 162.
33. Brecher, Michael, op. cit., p. 23.
34. Birdwood, Lord, op cit., p. 45.
35. Mahajan, M. G. Accession of Kashmir to India, p. 2 (the inside story)
Mr. Mahajan was the Prime Minister of Kashmir in 1947. After that he was the
Chief Justice of the Punjab High Court and retired as the Chief Justice of India.
36. Moraes, Frank : Jawaharlal Nehru : a Biography, 1956, New York. The
Macraillan Co.* D. 385.

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78 KASHMIR'S ACCESSION TO INDIA
i;
t h e gravest possible trouble will inevitably ensure". This threat
alarmed the Maharaja, caught on the horns of a dilemma. Pakistan
started an economic blockade against the State with a view to coerc-
ing the Maharaja to accede to Pakistan. Charges and counter-charges
were exchanged between Pakistan and Kashmir; 3 7 to substantiate or
disprove these were difficult; because of the economic blackade, there
were fresh uprisings in the State; so the Maharaja, on the advice of
his Prime Minister, released Sheikh Abdullah on September 29, 1947.
Soon after his release Sheikh Abdullah addressed a public meeting in
Srinagar. He reiterated that the main demand of the Kashmiris
was ' Freedom before accession'.33 However, he emphatically expressed
his resentment against Mr. Jinnah and said :
" How can Muslim League or Mr. Jinnah tell us that we should
accede to Pakistan ? They have always opposed us in every
struggle. Even in our present struggle (Quit Kashmir) he (Mr.
Jinnah) carried on propaganda against us and went on saying
that there was no struggle of any kind in the State. He even
termed us Goondas '\3<J
Athough this was his feeling, he told the leaders of Pakistan in the
Security Council:
"...that, whatever had been the attitude of Pakistan towards
our freedom movement in the past, it would not influence us in
our judgment. Neither the friendship of Pandit Nehru and of
Congress nor their support of our freedom movement would have
any influence upon our decision if we felt that the interests of
four million Kashmiris lay in our accession to Pakistan." 10
From a strictly legal standpoint this statement is irrelevant, for the
people had no real right to be consulted on the issue of accession.
(b) Events leading to Kashmir's accession
While all this was going on, Pakistan jumped the gun. Tribes-
men, who in language or culture had nothing in common with the
people of Kashmir, were transported across Pakistani territory to attack
the people of Kashmir and subsequently the invasion was followed

37. White Paper on Jammu andKashmir, (1948), pp. 6-14.

38. Interview with Mr. Banerji as reproduced in Banerji, J . K . : I Report on
Kashmir, (The Republic Publication, Calcutta, 1948), p. 7*
39. As quoted by Kaula and Dhar: Kashmir Speaks, New Delhi, p. 54.
40. S/P. 241 Dated 5/2/1948, p. 2.

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 ADARSH SEIN ANAND 79
41
up by the Pakistani Army itself. The State of Kashmir was at this
time in imminent peril and the Maharaja saw his dream of ' inde-
pendence ' collapsing like a house of cards, and as Campbell Johnson
observes, " I t is probable that nothing short of a full scale tribal inva-
sion to the gates of his capital would have induced the hesitating
Maharaja to accede at all ". 42 The tribal invasion started on 22nd
October, 1947. The State forces were not well equipped to stop the
invaders. As the position then stood, the Government of Kashmir
could ask for military help from either India or Pakistan or from any
of its other neighbours. However, to ask the military aid from
Pakistan was out of question, as the tribesmen were attacking the
State at the instance of the Pakistan Government. Margaret Bourke
White v/no has done some research on the attack records:
" Certainly these miniature ballistics establishments (the
small factories in the tribal areas) would hardly explain the
mortars, other heavy modern weapons and the two aeroplanes
with which the raiders were equipped. In Pakistan towns close to
the border arms were handed out before daylight to tribesmen
directly from the front steps of Muslim League Headquarters.
This was not quite the same as though the invaders were being
armed directly by the Government of Pakistan. Still Pakistan is
a nation with one political party—the Muslim League *\43
Therefore, the only course open to the Maharaja of Kashmir was to
ask for help from India. The Deputy Prime Minister of Kashmir
with a letter from His Highness went to the Prime Minister of India
asking for help. 14 October 24 and 25 were the most anxious days for
the State. On October 25 Mr. V. P. Menon, the Secretary of the
State Ministry of India was sent to Srinagar to " m a k e an on the spot
study' 1 by the Defence Committee. Menon stayed in Srinagar till
the morning of 26th October and then returned to Delhi to report
his impressions of the situation to the Defence Committee. He
" pointed out the supreme necessity of saving Kashmir from the
raiders" 45 and suggested sending of troops to Kashmir. The Press
Attache to Lord Mountbatten records in his diary on 28th October:

41. It has been admitted that Pakistan had given help to the tribesmen and
t ater had followed up the invasion itself. See S/955,13/9/48 and S/UOO, para 40.
42. Campbell-Johnson, Alan, op. cit, p. 240.
43. White, Margaret Bourke, Halfway to Freedom, p. 208.
44. Mahajan, M. C. op. cit, p. 14.
45. Menon, V P. The Integration of Indian States, pp. 397-99.

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80 KASHMIR'S ACCESSION TO INDIA

" He [Mountbatten] considered that it would be the height

of folly to send troops into a neutral State where we had no right
to send them, since Pakistan could do exactly the same thing,
which would only result in a clash of armed forces and in war". 46
The only basis on which the Indian troops could go to Kashmir was
that Jammu and Kashmir State should become a part of India.
Menon had advised the Maharaja of Kashmir to leave Srinagar and
go to Jammu for the reason that ceif the Government of India decided
not to go to his rescue there was no doubt about the fate that would
befall him and his family in Srinagar 47 at the hands of the raiders,
who were in Baramula, very near Srinagar.
After the Defence Committee meeting on October 26, Menon
flew to Jammu to advice the Maharaja of the Government of India's
views, taken at the Defence Committee meeting. Had Menon not
arrived in time, the then Prime Minister of Kashmir, Mahajan
records;
" We have decided by the 25th evening to go to India if we
could get a plane, or else to Pakistan for surrender". 48
The Maharaja wanted to save the State from destruction and was
prepared to accede if necessary, as is clear from his letter to Lord
Mountbatten:
" I have accordingly decided to do so (accede to India) and
I attach the Instrument of Accession for acceptance by your
Government. The other alternative is to leave my State and my
people to free-booters. On this basis no civilised Government
can exist or be maintained. This alternative I will never allow

46. Campbell-Johnson, Alan, op. cit., pp. 244-5 ; Menon. V. P., op, cit., p. 397
records substantially the same with a difference that he does not say as to why Lord
Mountbatten did not think it proper for the Indian troops to march to Kashmir. In
fact, the statement " a s Pakistan could do just the same..." which is recorded by
Campbell-Johnson appears nowhere in Menon's book. The present writer believes
this statement to be important as otherwise there does not seem to be any justification
for the Government of India's stand that ' only if the State acceded to India could
army be sent there \ Kashmir was neutral at that time and had asked for help from
India on 'humanitarian grounds'. (Mahajan, M. C , op. cit., p. 14). It was the
fear of Lord Mountbatten that if the Indian army went to Kashmir there might
occur a war between India and Pakistan (and that he desired to avoid) which made
him demand a legal right to go to Kashmir's help.
47. Menon, V. P., op. cit., p. 398.
48. Mahajan, M. C , op. cit., p. 16.

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 ADARSH SEIN AN AND 81

to happen as long as I am Ruler of the State and I have life to

defend my country." 49
When Menon arrived on 26th October, an Instrument of Accession
was executed and signed by the Ruler, and Menon, accompanied by
Mahajan, left for Delhi with the Instrument of Accession and the
Maharaja's letter to Mountbatten. Mahajan, as the Prime Minister
of Kashmir, solicited army help and asked that the army be flown to
Srinagar at once. There was a long discussion at the Defence
Committee meeting regarding the acceptance of accession and it was
decided that the accession should be accepted. Lord Mountbatten,
however, insisted on coupling acceptance of accession with the will
of the people being ascertained. 50 Mahajan observes that the
Government of India was not keen about accession.51 The accession
of Kashmir to India was supported by Sheikh Mohd. Abdullah,
the leader of the All Jammu and Kashmir National Conference. 62
The reasons for Abdullah's support seem to be that he was desirous
of the State being democratised and he hoped that accession to
India would make this possible.53 Later events showed that this
was not unreal optimism, as after the accession of the State to India,
the Monarchy was abolished in Kashmir.
2. Legality of Kashmir's Accession
The Instrument of Accession, executed by Maharaja Hari Singh
and accepted by Lord Mountbatten as the Governor-General of India
was in no way different from that executed by some 500 other states.
It was unconditional, voluntary and absolute. It was not subject to
any exceptions; it bound the State of Jammu and Kashmir together
legally and constitutionally. However, after the Instrument of
Accession had been accepted by the Governor-General of India,
Lord Mountbatten wrote a semi-official letter to Maharaja of

49. White Paper on Jammu and Kashmir, p. 47.

50. Mahajan, M. C , op. cit., p. 225.
51. Mahajan, M. C , op. cit., p. 17.
52. See Mahajan, M. C, op. cit, pp. 16-17 and Menon, V. P.; op. cit., p. 400.
53. See Mahajan, M. C , op. cit., and Banerjee, J. K., op. cit, p. 9, National
Conference was the only representative party in the State actively functioning in
1947 as its only opponent—the Muslim Conference had ceased to function because
almost all its leaders were in prison. (See also Brecher, Michael, p. 108).

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82 KASHMIR'S ACCESSION TO INDIA

Kashmir. Among other things written in the letter it was provided

that,
" it is my Government's wish that, as soon as law and order
have been restored in Kashmir and its soil cleared of the invader,
the question of Kashmir's accession should be settled with
reference to the people." 54
This statement has figured as the most controversial feature of
Kashmir's accession to India. Critics of the accession have steadfastly
maintained that this stipulation renders the accession conditional.
The present writer is of the opinion that this statement does not and
cannot affect the legality of the accession which was sealed by India's
official acceptance. This statement is not part of the Instrument of
Accession.
" T h e Indian Independence Act did not envisage conditional
accession. It could not envisage such a situation as it would be
outside the Parliament's policy. It wanted to keep no Indian
State in a state of suspense. It conferred on the Rulers of the
Indian States absolute power in their discretion to accede to
either of the two Dominions. The Dominion's Governor-
General had the power to accept the accession or reject the offer
but he had no power to keep the question open or attach condi-
tions to it..." 55
The only documents relevant to the Accession were the Instrument of
Accession and the Indian Independence Act and, as the Constitutional
documents did not impose any conditions, there can be no question of
the accession having been conditional. " Finality which is statutory
cannot be made contingent on conditions imposed outside the powers
of the statute. Any rider which militates against the finality is
clearly 'ultra-vires' and has to be rejected". 56 But although this is
the position from the strictly legal point of view, let us consider the
effect of the 'wish* to ascertain the wishes of the people, to which
Lord Mountbatten referred. Lord Mountbatten, in expressing the
wish, was probably expressing a pious hope a declaration without
legal effect. At best it was a formal declaration of the policy of the
Government of India at that moment. But even if it was only that,
there was never any agreement between the Maharaja of Kashmir
and the Government of India regarding the ascertainment of the
wishes of the people. It was a unilateral declaration—a declaration

54. White Paper on Jammu and Kashmir, 1948, p. 47.

55. Mahajan, M. C , op. cit., pp. 19-20.
56. Ibid.,p. 21.

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 ADARSH SEIN ANAND 83

to which the Maharaja was never asked to agree. For any contract
to be binding, law requires ' offer ' and 'acceptance'. In this case it
would seem that Lord Mountbatten made an offer but the Maharaja
did not signify his acceptance. Lord Mountbatten's unilateral
declaration cannot be regarded as a condition attached to the
Accession; 'wish' cannot be regarded as a proposal within the meaning
of the Indian and Pakistan Contract Act.
However, Pakistan refused to recognise this accession.67 Mr. Liaquat
Ali Khan later said :
" We do not recognise this accession. The accession of
Kashmir to India is a fraud prepetrated on the people of Kashmir
by its cowardly Ruler with the aggressive help of Indian Govern-
ment". 58
The same thesis was presented by Sir Mohammed Zafarullah Khan,
Pakistan's Foreign Minister in the Security Council in 1951 and ever
since.59
It is difficult to regard this charge as anything more than abuse.
Fraud is causing a person to do something to his detriment or another's
advantage by deceit and if it be conceded that India secured an ad-
vantage by Kashmir's accession, there is no evidence of any deceit
practised by India on Kashmir. If by fraud it is meant that the
Government of India should not have accepted the Instrument of
Accession signed by the Ruler of Kashmir unless it had been endorsed
by the people, it is submitted that the Government of India had no
authority to question the right of the Maharaja to accede to the Indian
Dominion. To accede or not to accede to a particular Dominion was
the exclusive right of the Rulers. The Government of India had no
authority to ask the Maharaja to establish his right to sign the Instru-
ment of Accession. To have done so would have meant that the
Government of India was going to meddle with the internal politics
of the State. Law does not permit any such intervention in the affairs
of another State. India had no claim on Kashmir before that State
acceded to it. Pakistan has alleged that the accession of Kashmir was
procured by force. Campbell-Johnson observes, " .indeed, the
State Ministry, under Patel's direction went out of its way to take no

57. It must, however, be remarked that recognition by either Dominion was

not required for the legality of the accession. The accessidn of a State was purely a
matter between the State's Ruler and the Dominion concerned.
58. Dawn, Karachi, 5/11/1947.
59. Security Council {Vtrhatim Report) 534 ; dated 6/3/1951, pp. 6-15,

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84 KASHMIR'S ACCESSION TO INDIA

action which could be interpreted as forcing Kashmir's hand and to

give assurances that accession to Pakistan would not be taken amiss by
India*'. 60 On his return to London Lord Mountbatten narrated :
" H a d he [Maharaja of Kashmir] acceded to Pakistan before
August 14, the future Government of India had allowed me to
give His Higness an assurance that no objection whatever would
be raised by them". 61
The Government of India would not have been in a position to raise
any objection in any case but this statement was to reassure the Ruler
that he should exercise his discretion without any fear of consequences.
When at his meeting with Lord Mountbatten on November 1,
Mr. Jinnah claimed that the accession of Kashmir to India was based
on violence, Lord Mountbatten replied "accession had indeed been
brought about by violence but the violence came from tribesmen, for
whom Pakistan, and not India was responsible". 62 Indian Law recog-
nises as voidable a contract procured by coercion but only when the
coercion was exercised by or for the party to the contract other than
the party coerced. India exercised no coercion; the tribesmen were
not acting on behalf of India and whatever their objective, it was not
to compel Kashmir to accede to India.
After Lord Mountbatten had expressed his government's 'wish',
it is argued, India might be regarded as under a moral obligation to
honour that pledge. But law does not permit any such moral
obligation to be given effect to. With the accession of the Jammu
and Kashmir State to India, jurisdiction in matters of External
Affairs, Defence and Communications was transferred to the
Government of India and the Dominion Parliament was given power
to make laws for the purposes of the three subjects only. The
Dominion Parliament, as such, had no jurisdiction in any other matter.
Sovereignty, in so far as the internal administration of the State was
concerned, remained with the Ruler by virtue of clause 8 of the
Instrument:
"Nothing in this Instrument effects the continuance of my
sovereignty in and over this State, or save as provided by or under

60. Campbell-Johnson, Alan, op. cit., p. 223.

61. Speech to the members of the East India Association, London, on June 29,
1948, reproduced in Lord Mountbatten; Time Only to Look Forward, London, 1949*
p. 269.
62. Campbell-Johnson, Alan, op*cittfpt 229.

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 ADARSH SEIN AN AND 85

this Instrument, the exercise of any power, authority and right

now enjoyed by me as Ruler of this State or the validity of any
law in force in this State ",
and by virtue of Clause 7 the State did not commit itself to the
acceptance of any future constitution of India. 63 The association of
Kashmir with India was based on the Instrument of Accession and
subject to its terms and conditions, which did not give any authority
to the Government of India to hold any sort of referendum in Kashmir.
In 1950 the Constitution of India was adopted. Indian States,
other than Kashmir, executed supplementary Instruments of Acces-
sion64 and accepted the Constitution of India as the constitution for
their States and the " Instrument of Accession became a thing of the
past for those states." 65 Kashmir did not execute any supplementary
Instrument and insisted that its association should remain confined to
the terms of the Instrument of Accession, because of the peculiar posi-
tion in which the State was placed. Article 370 (Article 306-A in the
Draft Constitution) was based on the terms of the Instrument of
Accession and provided that "the power of the Parliament to make
laws for the State shall be limited to
(1) 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 that State "
It was further provided that any exceptions and modifications in the
relationship of Kashmir with India would be made by the President
in consultation with the Government of the State.
Thus, even after India became a Republic and adopted its own
Constitution, it had no powers unilaterally to change the status of
Kashmir as Kashmir's association was still based on the Instrument of
Accession and subject to its terms and conditions.

63. It must be pointed out that the Instrument of Accession executed by the
Ruler of Kashmir was in no way different from the standard form of the Instrument
of Accession and these clauses were included in the standard form.
64. White Papers on Indian States, (1950).
65. Constituent Assembly Debates, {India), Vol. x, No, 10, p. 422.

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86 KASHMIR'S ACGESSION TO INDIA

After 1952 more parts of the Constitution of India were applied

to the State with the concurrence of the Government of that State
but even then effect would not be given to a "moral obligation" which
was not embodied in the constitutional documents. Mahajan holds,
" t h e moral grounds cannot override constitutional and statutory
provisions. Even the Directive Principles of the Indian Constitution
confer no such authority ". 66 He goes on to say, "such promises
cannot bind India They cannot deprive Rulers of their constitu-
tional powers " to accede to any Dominion they desire. Thus no
moral obligation can affect the legality of the accession. Legally no
court can take notice of a moral obligation not embodied in the Con-
stitutional documents. Moreover, the obligation is binding, if at all,
on India, but it cannot bind Kashmir. Kashmir cannot be asked to
do what the then Ruler of Kashmir never agreed to do. As such, if
there is a "moral obligation" on the Government of India to ascertain
the wishes of the people of Kashmir, it is binding on that Govern-
ment and the Indian Constitution has no provisions for such a step
in the process of amendment of a State's constitution. Although
such a rigidity in the Constitution might appear to ignore the facts of
life, that is the position.
Legally Pakistan has no locus standi in so far as the State is con-
cerned. If it claims a right over the State on the basis that the
population of the State are mostly Muslims, it is submitted that the
communal basis of partition did not effect the State ; if it claims a
right on the basis of the territory under its illegal occupation then it
is submitted that, it was the whole State of Jammu and Kashmir
which acceded to India and the fact that certain regions were made
to break away was an illegal action which cannot confer any right on
Pakistan or on anybody else for that matter. 67 The accession of the
State to India completely excluded Pakistan from the picture. Pakistan
cannot become a self-styled protector of the rights of the people of
Kashmir.
The accession of Kashmir to India, is not only legal and consti-
tutional but it is also perpetual and irrevocable. It is fully in accord
with what has happened with regard to the accession of some 500
other states. This legal aspect of the Kashmir situation, though
relevant to its solution, is often ignored.

66. Mahajan, M. C, op. cit., pp. 21-22.

67. See also Ferguson, J. P.: Kashmir—An Historical Introduction, (1961), p. 91.

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