In this article, we will examine the instrument of accession and the questions arising after the introduction of the Jammu and Kashmir Reorganization Bill. The fact that the government introduced the Jammu and Kashmir reorganization bill in haste is evident because the Home Minister introduced the bill at 11:06 am in Rajya Sabha but members received the copies of the bill at 11:18 am. When the bill was introduced in Rajya Sabha, everybody was expecting that the Government was going to do some kind of ‘misadventure’ with the state of Jammu and Kashmir but no one ever thought even in their wildest dreams that it will be reduced from a ‘state with special status’ to a Union Territory in India. Now the misadventure, cynism and arbitrariness will go on in Jammu and Kashmir for some years after which the Supreme Court will decide its fate as to what happens next after the abrogation of Article 370.
We should look at the document which despite being the thread that binds the state of Jammu and Kashmir with India is not much discussed at the moment. Black’s law dictionary defines Instrument as ‘A written legal document that defines rights, duties, entitlements, or liabilities, such as a contract, will, promissory note, or share certificate.’ It further elaborates that ‘An instrument seems to embrace contracts, deeds, statutes, wills, orders in council, orders, warrants, schemes, letters patent, rules, regulations, bye-laws, whether in writing or in print or partly in both; in fact, any written or printed document that may have to be interpreted by the Courts.’ (Edward Beal, Cardinal Rules of Legal Interpretation 55 (A.E. Randall ed., 3d ed. 192)).
It also defines the word accession or accessio(roman) as ‘The doctrine by which something of lesser size, value, or importance is integrated into something of greater size, value, or importance.’ The same dictionary thus defines Instrument of Accession as ‘A document formally acknowledging the issuing state’s consent to an existing treaty, and exchanged with the treaty parties or deposited with a designated state or international organization.’
From these definitions, we can ascertain the following points:
Let us now examine whether India and J&K have signed any such instrument of accession? The answer is big yes, they signed an IOA after South Waziristan’s people attacked Kashmir on 22 October 1947 and took control of important towns like Mirpur, Muzaffarabad, Uri, Baramulla before being stopped by Indian forces near the airport of Kashmir at Budgam on 28 October 1947.
Now, for understanding the essence of the Instrument of Accession, we have to first know the value of this document. If there is one single document which requires everybody’s attention after 1947 Kashmir, it is this document as it is the foundation of the relationship between J&K and India. Some scholars and politicians have termed Article 370 as the bridge between J&K and India. It is also of utmost importance that Instrument of Accession is the foundation of this bridge and those who don’t agree with the assertion that Article 370 is the bridge then it is binding on them to acknowledge the same.
The Government of India signed this document with Maharaja Hari Singh of Jammu and Kashmir on 26 November 1947 which later served as the basis for Article 370. It was drafted by the constitution-makers after some meetings between Sardar Patel and Sheikh Abdullah at his former residence at the insistence of Nehru who was on a tour of the US during these meetings. Patel was also in favour of letting go of Kashmir to Pakistan in exchange of Junagarh but later changed his stance when Junagarh acceded to India. Now let’s look at IOA briefly whose text is given below.
The Maharaja through this document had formed a relationship with India in which he and his state were sovereign and Government of India had control only over Defense, Foreign Affairs and Telecommunications. This gives us the impression that J&K will always remain a part of India but on its own terms.
Although Sheikh Abdullah opposed the Maharaja throughout the 1930s and 1940s for undermining the rights of Kashmiris with the dominance of Dogras in state administration and fought against the Maharaja which later resulted in the reverse discrimination with Jammu region. The Maharaja made Sheikh his PM after IOA on the recommendations of Nehru and Sheikh took control of the state and made the teenage son of Maharaja as Sadr-e-Riyasat who was later made Governor of state after the title was abolished in the mid-1960s. The constitution of India was extended to state in 1954 although the state declared its own constitution on 26 January 1957. Article 370 was placed in part XXI of the constitution and was declared as a temporary provision. It was inserted through a presidential order which paved the way for 46 other presidential orders which have extended most of the provisions of the Indian constitution to the state of Jammu and Kashmir.
93 out of 95 union subjects and most parts of the concurrent list apply to J&K. In fact, now the central government can impose President’s rule in J&K for more period as compared to any other state. The only provision which did not change until 2019 presidential order is 35A which defined permanent citizens of Jammu and Kashmir but President order of 2019 have paved the way for its removal. Now the question which arises after J&K Reorganisation Act 2019 is that does it fulfil the promise made to the state of Jammu and Kashmir? Does the state want it? Does the constitution allow the president to amend Article 370 itself? No, it not only completely broke the promise given to the people of Jammu and Kashmir but also had put a seal of tyranny on their future against their will.
They have always stood against the continuous corrosion of art. 370 which alienates them from the centre. India as a matter of right has to ensure their autonomy not on the basis of Article 370 but because of Instrument of Accession which she signed and cannot take the plea that it was a new nation back then and provisions for minor changes were applicable on her which makes her unable to contract and hence it is not binding on her.
It is a slap on the face of the majority of people of Jammu and Kashmir who believed in the idea of India from the last 72 years, who stood with India every time, be it in 1947, 1965 or 1999. Sometimes they come as Maqbool Sherwani, at times as Sheikh Abdullah, Ikhwan, and Umar Faiz and sometimes as J&K militia which is now an infantry regiment of Jammu and Kashmir by the name of JAKLI.
In my opinion, it is a betrayal of India towards countless people belonging to all the strata of Jammu and Kashmir. Coming to the next question – does the state want it? No, I don’t believe it does, because they joined India with assurance and hope that their distinct identity, culture, social structure, religion, diversity will be protected in India.
They were promised the right to live by their own rules, subject to certain fundamental conditions, with which they lived, but the conditions on them kept mounting and simultaneously took their distinct identity away in bits and pieces. Therefore, when they were subjected to the dictatorship in 1987, they reacted and got rid of their secular identity. We can hold them responsible for the exodus of Kashmiri Pandits but it is a reality that our government forced them by rigging elections to do away with democracy. But despite all this, the majority never joined them and they too raised voices not for Pakistan but for their autonomy which got snatched eventually.
Now coming to the final set of questions which will be important for the government and the state’s people.
1.Whether the President or even parliament has the power to replace the ‘constituent assembly of the state’ with ‘legislative assembly of the state’?
2.Whether the federal structure of a state be changed without concurrence or consultation of the state legislature?
3. If 370 cannot be amended by President on his own then who will be treated as ‘constituent assembly of Jammu and Kashmir’?
4. If the President cannot amend 370 then is it part of the basic structure?
5. Does the constituent assembly of Jammu and Kashmir intend to make 370 permanent?
If the state mainstream parties were consulted then India would not have lost so much of ground in Jammu and Kashmir even though concurrence is not mandatory but consultation is the essence of a democratic set up and it becomes more important when you are taking all the powers of a state away from them and reducing a part of country having special status and turning it into a Union Territory.