There is a continuous propaganda since the Instrument of Accession was signed by Maharaja Hari Singh on 26 October 1947 to use terms like 'conditional' and 'temporary' for the accession of Jammu and Kashmir to Bharat which is a legal fact of Indian constitutional history. Irony of the matter is that this propaganda succeeded in misleading a huge number of audiences, especially in Kashmir valley of the state.
Let us examine the legality of instrument of accession. Accession of the states to the Dominions was governed by two Acts of British Parliament
Neither Instrument r of Accession by the Maharaja nor above mentioned two Acts had any provision of temporary or conditional accession. Under the Government of India Act, 1935 as in force on 15 August 1947, which was also the Constitution Act at that time, the provision was made only for accession of a State and not for secession. So the accession of Jammu and Kashmir to Bharat, as in the case of other States that acceded to Bharat, was final, absolute and indefeasible, which cannot be altered. Ruler of the State of Jammu and Kashmir was fully competent to sign the Instrument of Accession. Clause 5 of Maharaja's 'Instrument of Accession' clearly reflects that the terms of that accession could not be varied unless such amendment was executed by Maharaja Hari Singh by an instrument supplementary to that instrument and accepted by the Governor-General. In that case Maharaja was sole and absolute decision- maker and no such supplementary instrument was executed by Maharaja Hari Singh in his life time. As per the Indian Independence Act, 1947, Princely States were given an option to either remain independent or join any of the two newly formed dominions, Bharat or Pakistan. It was a right created in favour of the State of Jammu and Kashmir and not Pakistan. Pakistan was a stranger to this declaration and as such could not derive any such right. There was nothing in the Instrument of Accession to refer the question of accession to the people of Jammu and Kashmir. The ruler of Jammu and Kashmir was fully competent to sign the Instrument of Accession of Jammu and Kashmir to Bharat. There was no provision of plebiscite in Maharaja's Intruement of Accession or Indian Independence Act, 1947. Accession was executed and accepted strictly in accordance with the constitutional procedures then in force. As per Maharaja's Instrument of Accession, accession of Jammu and Kashmir to Bharat was complete and final. There was no legal requirement of plebiscite in the Instrument of Accession signed by the Maharaja of Jammu and Kashmir. The mention to ' wish' of people is in the letter written by Lord Mountbatten. Letter written by Mountbatten is not a legal document. None of the Acts supports this letter in relation to the accession of Jammu and Kashmir.
Those who challenge the legality of the Instrument of Accession of Jammu and Kashmir or ask for ascertaining the 'wish' of the people of Jammu & Kashmir under the supervision of some independent agency refer to the letter of Lord Mountbatten written to Maharaja Hari Singh on 27 October, 1947 in response to Maharaja's leter dated 26Ocober, 1947. They contest the said letter as a part of the Instrument of Accession. However, the letter of Mountbatten is a non-legal document. It is separate document from the Instrument of accession. Accession was initiated with offer of Maharaja and it concluded with the acceptance of Mountbatten. As per the terms and conditions laid down in the Instrument of Accession signed by Maharaja, any amendment to the terms of Instrument had to have the consent of the Maharaja. Therefore, for a conditional accession, the consent of the Maharaja Hari Singh was must and since it was not obtained, the letter has no significance. Mountbatten could not on his own lay down such condition. He had no legal authority to accept the accession conditionally. Technically, his letter is not a part his acceptance of the Instrument of Accession of Jammu and Kashmir. It was written after the unconditional acceptance of the Instrument of Accession by him. In his letter, he mentioned that J&K State as a State where the issue of accession was a dispute whereas the Maharaja in his letter had clearly stated that there was 'no dispute or resistance from the people of his State'. Maharaja of Jammu & Kashmir was the sole designated authority to assess the circumstances and requirements of his Princely State and he had no where given any indication that there was any objection to accession with Bharat from his people. Maharaja had said in very clear terms that the people of his State were not by and large responsible for the disturbed conditions in the State in view of the aggression from across the borders along with the newly created Dominion of Pakistan. There is no document where the acceptance of conditional accession has been endorsed by the Maharaja Hari Singh. Thus, the letter of Mountbatten has no legal status.
As far as the 'wish' of the people of Jammu and Kashmir on the question of accession of Jammu and Kashmir is concerned, it was completed when accession to Bharat was unanimously supported by the largest and most representative political party in the state, “All Jammu & Kashmir National Conference”. Secondly an election based on adult suffrage was desired by Bharat in connection with formation of a Constituent Assembly for J&K in 1951 to give an opportunity to the people to decide whether they wish to have such assembly or not. Thirdly the people of J&K adopted their Constitution in 1956 which came into effect in 1957. Section 3 of the Constitution of Jammu and Kashmir declares that the State of Jammu & Kashmir is and will be an integral part of the Union of Bharat. Again Section 147 of J&K Constitution bars any amendment in the said Section 3 of the Constitution and makes it a permanent feature of this Constitution. It establishes once for all that Kashmir's accession to Bharat is legally correct. As per Indian Constitution, Bharat is a federation, and there is no provision in the Indian Constitution that allows the acceded units to secede from the federation. To call accession of Jammu and Kashmir as temporary or conditional would be against the constitutional procedures. Instrument of Accession is a legal document of local, national and international importance.
[This article is an extract from the book “ Jammu Kashmir: A Process of Integration” authored by Sh. Avnesh. Further chapters of this book will be covered later in series.]