Jammu and Kashmir acceded to the Union of India when its Maharaja signed the Instrument of Accession on 26th October, 1947 in the presence of the then Secretary of the Union, Shri V.P. Menon. India’s Governor-General Lord Louis Mountbatten accepted the accession on the morning of 27th October, 1947. The Indian Army was dispatched by the then available Dakota plane to Srinagar to resist the aggression from the newly created Pakistan. The Instrument of Accession which Maharaja Hari Singh signed had the same language as those signed by more than 550 rulers of other states in India.

This part of the accession history with the Union of India deserves to be noted without bias. Around 550 states whose rulers signed a similar Instrument of Accession as signed by the ruler of J&K were merged into the Union, but not J&K. Baroda, ruled by Gaekwad family, acceded to the Union of India in 1948, and was merged with the Union of India. Thus the argument that Maharaja Hari Singh was late in signing the Instrument of Accession fails. The State of Hyderabad and Junagarh were merged into the Union of India even though their rulers never signed the Instrument of Accession.

The Constitution of India, promulgated on 26th January 1950, was born with a tumour in its womb - Article 370. Article 306 in the draft Constitution was introduced to deny J&K the status of the other states. Dr Bhimrao Ambedkar, Chairman of the Constituent Assembly, insisted repeatedly against its inclusion. Mahatma Gandhi was no more on the scene. Had he been alive in 1949, when Article 306 was finalised as Article 370, he would have never allowed such a blunder.

Dr Ambedkar’s resistance to this Article made the Constituent Assembly decide to keep it as a Temporary, Transitional and Special Provision. The people of J&K have been victim of this temporary provision. The political vested interests have been exploiting the people of the state in the name of this Article. No research has been done by thinkers or law makers on the three words and the reason of their insertion in this Article. The word, ‘temporary’ could not have meant 68 years; ‘transitional’ would never mean permanent and ‘special’ could not mean to be continued for all time. This situation needs to be studied and understood in the light of historical and political developments vis-à-vis J&K.

a)     J&K was ruled by the Dogra Rajput family of Maharaja Gulab Singh, and there was a movement in the Kashmir Valley against the Dogra rulers, which they called ‘Quit Kashmir’ movement, which was supported by the Indian National Congress because Pandit Jawaharlal Nehru, as interim Prime Minister of India in 1946, was detained during Maharaja Hari Singh’s rule when he tried to trespass into the state from Rawalpindi via Kohala Bridge. He was deported back to Delhi, and could never get over the episode.

b)    There was a understanding between Pt. Jawaharlal Nehru and Congress leaders to grant separate state status to J&K for reasons which need separate elaboration; therefore Pt. Nehru never wanted J&K to be treated at par with other states which were declared merged into the Union by November, 1949.

c)     All the Maharajas/rulers/nawabs lost their status and the territories they governed became part of the Union of India except J&K. Maharaja Hari Singh, though forced into exile in Bombay, was allowed to continue as a Monarch of J&K. This needs careful analysis because the Maharaja was pushed out of J&K by the Nehru-Abdullah combine and subjected to humiliation and insults. Under pressure from Nehru on the plea of Sheikh Abdullah, the Sheikh was installed as Prime Minister of the State and Yuvraj Karan Singh, son of Maharaja Hari Singh, appointed Regent of the state. Why was J&K not merged into the Union of India?

d)    A parallel Constituent Assembly of J&K was constituted under the signs and signatures of Yuvraj Karan Singh, representing his father, the Monarch of the state, in 1951, naturally with the consent and approval of the Constituent Assembly of India and its leaders. This Constituent Assembly was headed by Sheikh Mohammad Abdullah. This was justified by Congress leaders as necessary to create a mechanism to control /check the powers of the Monarch who had signed the Instrument of Accession.

The idea was floated was that Monarch may create an undesirable situation for the Union. The Maharaja’s integrity and credibility as nationalist was ignored. In 1931, during the Round Table Conference, he was the only ruler from the Indian States who dared the British Crown saying, “I am Indian first and then a Maharaja”.

The Maharaja’s secular credentials were slighted, even though he was the only ruler in the history of Indian states who at the time of his coronation in 1925 declared, “My religion as king is justice”. Both Pt. Nehru and Sheikh Abdullah were scared of the Maharaja’s popularity and acceptability among the Muslims in J&K.

Sheikh Abdullah was in a hurry to take over the reins of power. He was prompted by the Anglo-American Bloc to take up the Dixon Plan for the creation of ‘Islamic Republic of Kashmir’. Jawaharlal Nehru had rejected the Dixon Plan. But on 20th August, 1952, Sheikh Abdullah under the pressure of Anglo-American Bloc got a resolution passed in the so-called J&K Constituent Assembly abolishing the Monarchy.

This left several unanswered questions on the validity of the resolution which was never signed by the Regent himself. But, the special status of J&K also came to an end and Article 370 turned infructuous. This was obvious from the fact that Article 370 expressly states that the President of India may sign any law for the king of J&K only if the concurrence /consent is given by the Govt. of J&K created by virtue of the Maharaja’s Royal Decree dated March 5, 1948.

Maharaja Hari Singh, before leaving for exile, had installed Sheikh Abdullah as a Prime Minister of J&K. When Maharaja/Monarchy was abolished,. This Royal Decree also came to an end. Secondly, Sheikh Abdullah, the Prime Minister installed by the Royal Decree, was dismissed on the morning of 9 August 1953 under the instructions/ directions of Pt. Nehru himself and put in jail. This clearly supports the above mentioned argument that after 1953 there was no more a government created by Maharaja’s Royal Decree. Therefore, Article 370 was no longer in existence as there was no special status of J&K. It was transitional and meant only to contain the Maharaja.

e)     Article 370 in its concluding provision stated that the President of India could bring any alteration, change or amendment in the Article. A proviso inserted added that such a change/amendment would be done only after the recommendation of the Constituent Assembly of J&K, which was terminated on 26 January 1957, when the State Constitution was promulgated in J&K. The State Constitution in Section 3 clearly and without reservation or ambiguity states, “Jammu and Kashmir is and shall be an integral part of the Union of India”.

It is most unfortunate that the High Court of J&K which has not declared itself as the High Court of Judicature (as is the case with all High Courts of the Union of India) and has no jurisdiction or competence to give its opinion/verdict on the validity of any provision of the Constitution of India, has declared Article 370 as permanent.

Article 370 is part of Constitution of India and so is Article 35(A). Once Article 370 becomes redundant or infructuous or a dead letter, all other provisions including 35(A) become irrelevant.

Jammu and Kashmir acceded to the Union of India in accordance with the procedure laid down in the Indian Independence Act of the British Parliament. The ruler was the only competent authority to accede to the Union. Article 370 was inserted only under special reasons and the Monarchy was allowed to continue. It ended per the decision of the Constituent Assembly of the state. Article 370 became infructuous in 1953.

Sixty-eight years have passed since Maharaja Hari Singh signed the Accession. There is a pending dispute vis-à-vis J&K with Pakistan and China. Nearly 32,000 sq. miles of India’s territory (including Gilgit-Baltistan and Occupied Kashmir) is under illegal occupation of Pakistan and 22,000 sq. miles of India’s territory (Ladakh region) continues under illegal occupation of China. In 1994, the Parliament of India under the leadership of the then Prime Minister PV Narasimha Rao, in a unanimous resolution declared that there is a dispute with Pakistan as nearly 1/3rd of India’s territory is under the illegal occupation of Pakistan.                                               

The author is a senior advocate in the Supreme Court of India and chief patron of the National Panthers Party