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Irrevocably an Indian state - The Observer

K Francis ()
October 24, 1998

Title: Irrevocably an Indian state
Author: K Francis
Publication: The Observer
Date: October 24, 1998

What are the criteria which make a region an integral part of a nation
state? The creation of a nation state is a recent development in
history.

The founding fathers of India, while creating the Indian nation state,
had to face a number of problems; but no region, except Jammu and
Kashmir, evokes criticism. As it is, the disputes on its integration
with the rest of India are of a great concern to many of our
compatriots.

There are two ways by which a particular state is made a part of the
nation state. One is by way of consent, which is quintessentially the
foundation of a democratic polity. The other is by way of conquest. And
quite a few leaders in different times and climates have adopted this
method.

But once a hitherto independent state joins another nation state to
become a part of the latter with the consent of the existing government
or with the consent of the people, the integration of that province or
erstwhile independent entity is final. This does not, of course, mean
that there may not emerge further disputes over the same question at a
later point of time.

An important turn in the history of modern India took place on August
15, 1947, when India became politically independent and the British
paramountcy came to an end. By virtue of section 7 (1) (b) of the Indian
Independence Act, 1947, the Indian states regained absolute sovereignty
that they had been enjoying prior to the assumption of suzerainty by the
British Crown.

Thus, the rulers of the Indian states became competent to accede either
to the Dominion of India or to that of Pakistan, or they could choose to
remain independent. The ruler of Kashmir could not take any decision on
this account immediately. Therefore, he declined to sign the Instrument
of Accession until he was forced to do it on October 26, 1947 in the
face of tribal invasion supported by Pakistan. Thus, took place the
accession of the princely state as an integral part of the Indian union.

The signing of Instrument of Accession by the Maharaja of Jammu and
Kashmir and acceptance of the same by Lord Mountbatten on the advice of
Nehru satisfied the statutory requirement as desired in the Indian
Independence Act of 1947. Since the offer of accession has been made in
a constitutionally valid manner and the offer has been accepted in a
constitutionally valid manner, the accession is complete and valid.
Hence, it is unconstitutional on the part of Pakistan or any other
country to challenge the validity of accession.

What about Pakistan-occupied Kashmir? Is it right on the part of
Pakistan to retain it under its control? Is there anything special about
Kashmir? Most of the regions in India as well as in other countries have
gone the same way to be an integral part of the newly emerged nation
states.

A Constitution represent the will of the people. For fulfilling the
pledge of giving a democratic Constitution to the people of the state
and for doing away with the legacies of the constitution made by the
Maharaja in the past, the National Conference passed a resolution on
October 27, 1950 asking for the composition of a Constituent Assembly by
the votes of the people.

The election held to elect people's representatives to draft the
constitution gave a statutory definition to the relationship of the
state with the Union of India. As a result, on April 30, 1950, the
prince issued a proclamation to found the Constituent Assembly on the
basis of adult franchise by secret ballot.

Thus, elections took place in September/October 1951 in order to have 75
delegates - 45 from Kashmir and Ladakh and 30 from Jammu region. It may
be noted that 43 candidates elected unopposed as the nominees of the
Praja Parishad candidates were rejected on the grounds of irregularity.
The Constituent Assembly began to work from October 31, 1951 and
completed its job within a period of five years.

On November 20, 1951 it adopted an interim constitution known as the
Jammu and Kashmir Constitution Act that took away all powers of the
Maharaja and made him a figurehead. The government was made responsible
to the Assembly and the principle of state autonomy, within the national
constitutional framework, was reaffirmed excluding defence, foreign
affairs and communications.

Sheikh Abdullah, the popular leader of the people, took an active part
in the discussions of the Constituent Assembly constituted for Jammu and
Kashmir until his ouster from power in August, 1953. The constitution of
Jammu and Kashmir became operational on January 26, 1957.

The preamble of the Jammu and Kashmir constitution affirms the consent
of the people of the state over its accession to India that took place
on October 26, 1947 and thereby making it an integral part of India.
Questioning the integration of Jammu and Kashmir with the rest of India
has no political and legal validity as it has joined the Indian union
through the accepted norms which have made the integration final and
legitimate.

The bond is further cemented when the leader of the people, Sheikh
Abdullah, agreed to the political process of conducting elections for
drafting the constitution of the state. This means that the integration
of Jammu and Kashmir has become legal as the constitution is the law of
a state framed by its own people.

>From the above, it follows that Pakistan has no right to talk about
Kashmir. In fact, it is India which has a more genuine grievance. This
is because the so-called Azad Kashmir is a part of India illegally
occupied by Pakistan.

Pakistan should, therefore, take care of its own problems and not worry
about the internal affairs of India. For, Kashmir has joined the Indian
union with the consent of the people and consent is the basis of the
legitimacy of the union of the independent province with the newly
emerged nation state of India.

Nor does India need involve Pakistan in settling the Jammu and Kashmir
issue. In fact, Jammu and Kashmir is just like any other state in India.
The so-called Jammu and Kashmir issues are created by interested parties
like Pakistan and other countries which feel jealous of the political
and social stability India has achieved since independence in the midst
of numerous problems.

Any region that joins a nation state to constitute a federation cannot
ask for its separation if that province joins the federation through the
consent of the people. No doubt, many republics do suffer the fate of
disintegration in course of time. Call it historical destiny or an
important aspect of natural law. When massive upheaval emerges in a,
particular region with a strong determination to assert its sovereign
right to be an independent republic, any national government will be
helpless. This is exactly what happened in the former Soviet Union.

However, there is no international law which gives power and authority
to an outside country to question the validity of the covenant by which
a province or even an erstwhile independent entity undertook to join a
newly emerged nation state. Such an agreement is between that
particular province and that national government. Therefore, it is an
internal political matter of that particular nation.

>From this legal perspective, it may be said that when the leadership of
Kashmir signed the Instrument of accession, the first phase of accession
to India was over. In order to retain the cultural identity of Kashmir
in a more intact form, the Government of India gave consent to the
leadership of Kashmir to frame their own constitution through a duly
constituted Constituent Assembly.

Once the constitution became operative, within the framework of the
Article 370 of the Indian Constitution, the accession of Jammu and
Kashmir with the Union of India was complete and final. There is no
international law which gives other countries the right to interfere in
Kashmir which is an internal affair of India.


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