Post-Accession Constitutional Relationship of Jammu and Kashmir with the Union of India

My earlier post had traced the flow of sovereignty over the erstwhile princely state of Jammu and Kashmir. As I explained in that piece, Maharaja Hari Singh was the head of the sovereign State of Jammu and Kashmir under the paramountcy of the British crown at the

time of India’s independence. Enjoying plenary powers over the territories and subjects of the State, the Maharaja exercised that authority vested in him to sign the Instrument of Accession with India on October 26, 1947.

Terms of Accession

The accession was “unconditional, voluntary and absolute” as can be discerned from the operative part of the said Instrument, which reads: “I, Shriman... Maharajadhiraj Shri. Hari Singh..., Ruler of Jammu and Kashmir, in the exercise of my sovereignty in and over my said State do hereby execute this my Instrument of Accession....” The said Instrument was of a permanent nature too since it stipulated no provisions or procedures for Jammu and Kashmir to either withdraw from or terminate its relationship with India.

Besides, in Clause 1 of the said Instrument, the Maharaja further covenanted that the accession was intended to confer on and concede to the Dominion the authority to exercise, in relation to the State of Jammu and Kashmir, such functions vested in the Dominion by or under the Government of India Act, 1935, as in force on the 15^th Day of August, 1947.

Clause 3 then goes on to state that the Dominion Legislature may make laws for the State of Jammu and Kashmir with respect to the matters “specified in the schedules”, i.e., defence, external affairs, communications and other ancillary matters.

Then again, in Clause 5 of the said Instrument, the Maharaja retained his right to accept (or, on the flip side, to reject) any variance to the terms of the said Instrument “by any amendment of the (Government of India) Act or of the Indian Independence Act, 1947...”

Clearly, any interpretation of the Instrument of Accession, and the powers retained by the Maharaja therein, needs to be made necessarily within the ambit of the List I (Federal Legislative List), List II (Provincial Legislative List) and List III (Concurrent Legislative List) of the Seventh Schedule of the Government of India Act, 1935. Interestingly, List I of that Act enumerates a total of 59 matters on which the 'federal government' was empowered to enact laws.

The Indian Independence Act, 1947 too vested the Dominion with certain additional functions, such as regulation of the monetary system and matters pertaining to the Reserve Bank of India.

No Special Provisions

It is noteworthy that the two enactments (that applied to the Instrument of Accession) neither envisaged a scenario of nor made express provisions for independence of any of the princely states under the British Raj. Furthermore, the Instrument made no reference, in express terms or by implication, of either a separate Constitution for the State of Jammu and Kashmir or a plebiscite in that State as a precondition for the accession.

Hence, those who claim that the Instrument of Accession conferred comprehensive autonomy on the State of Jammu and Kashmir for managing its internal affairs are either ill-informed or perhaps have hidden agendas in spreading falsehood.   

All the same, the historical account of accession of Jammu and Kashmir in “The Story of the Integration of the Indian States”, the memoirs of Sri. V.P. Menon (Secretary of Ministry of States in post-independence India under Sardar Vallabhbhai Patel), bespeaks little or no negotiation of terms during the hurried execution of the Instrument. Thus, the terms of the Instrument, that Maharaja Hari Singh agreed to and signed, show no variance with those that, say, the Maharaja of Mysore or the Maharaja of Travancore executed. In fact, a careful scrutiny shows that the Instrument of Accession was pretty much a "template version", with boilerplate terms, used for integrating all other States.

Yet, as documented by Sri. V.P. Menon in his book, Pandit Nehru had orally committed (hence morally-binding, if not legally-binding) the holding, subject to a conducive law and order situation, of a plebiscite for determining public sentiment towards accession in the State.

So much for all the false, fictitious talk of special provisions negotiated at the time of accession!

Post-Accession Discretionary Powers of the Maharaja

Nevertheless, Clause 7 of the Instrument of Accession executed by the Maharaja outlined:

“Nothing in this Instrument shall be deemed to be a commitment in any way as to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangement with the Governments of India under any such future Constitution.”

Similarly, Clause 8 of the Instrument stipulated:

“Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or save as provided by or under this Instrument the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.”

The sum and substance of the above two Clauses of the Instrument is that the Maharaja:

1. Reserved for himself the discretion over the acceptance, and the conditions for such acceptance, of the Constitution of India being drafted at that time;
2. Ensured the continuance of his sovereignty in and over the State of Jammu and Kashmir, subject to the relinquishment of law-making powers to the Dominion Legislature of India (i.e., the Indian Parliament after the adoption of the Constitution of India), in various matters, as prescribed in the Schedule of the Instrument of Accession; and,
3. Retained all existing laws of the State of Jammu and Kashmir, except those laws applicable to areas specified in the Instrument.

In effect, the accession of the princely State of Jammu and Kashmir with the Indian Dominion was subject to no erosion or abrogation of either the authority or the autonomy of the Maharaja over the State’s “internal affairs and administration”. Nevertheless, these terms were analogous with those of accession of other princely states.

Fallout of the Instrument of Accession

The outcome of the British pullout from the sub-continent was that that the suzerainty of the British Crown had expired over the State of Jammu and Kashmir on August 15, 1947. And, with the signing of the Instrument of Accession, a new “international relationship” emerged between the erstwhile princely State of Jammu and Kashmir and the Indian Dominion.

In other words, not only did the Indian Dominion (the superior power) protect and support (as is typically expected of a “suzerain power”) the State of Jammu and Kashmir in its 1947 war against external aggressors, but it also concluded international treaties that were binding (in contrast to the scenario with a “protectorate”) on the State of Jammu and Kashmir too. Besides, neither did the Instrument of Accession make any provisions for withdrawal from or termination of the arrangement (as would, perhaps, have been the case in an “associate states” relationship).

Powers of Maharaja Hari Singh after Instrument of Accession

The execution of the Instrument of Accession would prima facie imply the transfer of sovereignty to the Dominion of India. However, in Prem Nath Kaul v. State of Jammu and Kashmir (AIR 1959 SC 749), the Supreme Court of India observed that the execution of the Instrument did not affect “in any manner the legislative, executive and judicial power in regard to the Government of the State, which then vested in the Ruler of the State.”

Again, in the case of Rehman Shagoo v. State of Jammu and Kashmir (AIR 1960 SC 1), a Five-Judge Constitution Bench of the Supreme Court confirmed that the State of Jammu and Kashmir did retain “power to legislate on even those subjects (over which law-making power had been conveyed to the Indian Dominion by virtue of the Instrument of Accession) so long as the State law was not repugnant to any law made by the Central Legislature.”

Thus, in the view of the judgments of the Supreme Court, Maharaja Hari Singh retained control over the State of Jammu and Kashmir even after accession. Hence, the Jammu and Kashmir Constitution Act, 1939 continued to be valid and subsisting. 

So too was the Proclamation of the Maharaja dated March 5, 1948.

Post-Accession Proclamations of Maharaja Hari Singh

The Proclamation dated March 5, 1948 was made in the lawful exercise of the powers vested and subsisting in the Maharaja after accession. It signified another step towards the establishment of a “fully democratic constitution based on adult franchise with a hereditary Ruler...as constitutional head of an Executive responsible to the legislature.”

The Proclamation was for the constitution of a Council of Ministers consisting of a Prime Minister. By Royal Warrant, the Maharaja appointed Sheikh Mohammad Abdullah as the Prime Minister. He also promised to set up a Constituent Assembly for the purpose of framing a Constitution for the State and its people.

The State though, continued to be governed under the Jammu and Kashmir Constitution Act, 1939.

Then again on June 20, 1949, Maharaja Hari Singh issued another Proclamation for abdicating power and nominating his son and heir-apparent, Yuvraj Karan Singh as the Ruler of the State. Thus, courtesy the abdication, all powers and functions of Maharaja Hari Singh, whether legislative, executive or judicial, including in particular the “right and prerogative of making laws, of issuing proclamations, orders and ordinance...,” passed on to the young prince, albeit temporarily.

As rightly held in the Prem Nath Kaul case (AIR 1959 SC 749), Maharaja Hari Singh, like his predecessors in the Dogra dynasty, was an absolute monarch and therefore there can be no question on either his power of delegation or the authority that Yuvraj Karan Singh derived from that Proclamation.  

Representation in the Constituent Assembly of India

Soon after assuming power from his father, the Yuvraj nominated four representatives‒ Sheikh Muhammad Abdullah; Motiram Baigra; Mirza Mohammad Afzal Beg; and Maulana Mohammad Sayeed Masoodi‒ to the 299-member Constituent Assembly of India.

So then, if at all accession had been in dispute or if independence had been an option on the table, why would Yuvraj Karan Singh, who enjoyed plenipotentiary powers as the Regent of the State of Jammu and Kashmir, designate a team to partake in the proceedings of the Indian Constituent Assembly?

Besides, during the Constituent Assembly of India debate on Article 370 (i.e., Article 306A in the draft Constitution), none of the four members ever mention that the State of Jammu and Kashmir was either contemplating independence or pursuing a plebiscite for independence. Indeed, all the four hon'ble representatives of the State of Jammu and Kashmir in the Constituent Assembly of India appended their respective signatures to the adopted Constitution on 24 January, 1950 (besides 280 other members).

Of course, this adoption shows that the Constitution of India is the Supreme Law of the State of Jammu and Kashmir, an integral part of India. Consequently, the people of the State owe allegiance to the Union of India and its Constitution, through which they reserved for themselves certain fundamental, non-violable rights.

Therefore, the question that begs to be asked is: Why do some opinion leaders still cast misgivings about the validity of the accession and integration of Jammu and Kashmir and the applicability of the Constitution of India to that State?

Nevertheless, Article 370 of the Constitution of India the came into effect on 26 January, 1950 did envisage the convening of a Constituent Assembly of Jammu and Kashmir for finalising the constitutional relationship between the State and the Union of India.

Constitution (Application to Jammu and Kashmir) Order of 1950

The President promulgated the Order of 1950 on 26 January, 1950 in exercise of powers conferred through paragraphs (i) and (ii) of by Article 370(1) (b). In essence, the Order codified the Instrument of Accession and added some other matters over which the Union Parliament could legislate. The Order specified in its First Schedule matters with respect to which the Union Parliament would be competent to make laws for the said State. Also, anything not contained in the First Schedule was within the exclusive powers of the State. In effect, this meant that the residuary power which in the case of other Indian States vested in the Center, in the case of Kashmir was to belong to the State.

The Second Schedule of the said Order tabulated the provisions of the Constitution, which in addition to Article 1 and Article 370, that were to apply in relation to Jammu and Kashmir, subject to the exceptions and modifications specified in the said Schedule.

The Order was later repealed by the Presidential Order of 1954 dated 14^th May 1954.

Proclamation of Yuvraj Karan Singh

It is noteworthy that many other princely states too had retained sovereignty even after British India had gained independent dominion status on 15 August, 1947. For instance, the princely State of Mysore had set up its Constituent Assembly for the purpose of framing a Constitution for the State. However, this Assembly passed a resolution recommending that Mysore should adopt the Constitution framed by the Constituent Assembly of the Indian Union. Hence, the erstwhile State of Mysore merged with the Republic of India as a Part-B State on 26 January, 1950.

The political leaders of Jammu and Kashmir, such as Sheikh Abdullah, driven perhaps by the motive of holding authoritarian power over the State under the garb of democracy, were not in favour of such seamless integration with the Union of India. Hence, they continued to drive the agenda of convoking a Constituent Assembly of Jammu and Kashmir to frame a Constitution for the State.

Eventually, the Yuvraj, as the Regent of the State, issued a Proclamation dated 1 May, 1951 that set in motion the process for convening a Constituent Assembly, elected on the basis of adult franchise by secret ballot, with the purpose of framing the Constitution of the State, in accordance with the provisions of Article 370. Accordingly, elections were completed by August of 1951 and the first meeting of the newly formed Constituent Assembly was held on 31 October, 1951.

The Delhi Agreement, 1952

The Constituent Assembly of Jammu and Kashmir deliberated on various aspects of the State’s constitutional relationship with India. It was deemed necessary to consult with and seek the concurrence of the Indian government on the decisions taken. So, a team of representatives of the Jammu and Kashmir government conferred with representatives of the Indian government and arrived at an arrangement, which was later referred to as the “Delhi Agreement, 1952”.

Accordingly, the Union Government consented to:

1. Residuary powers being vested in the State; 
2. The State Legislature conferring special rights and privileges on ‘state subjects’; 
3. The State of Jammu and Kashmir having a separate flag;
4. Chapter III of the Indian Constitution on Fundamental Rights being inapplicable to the State of Jammu and Kashmir; 
5. The Supreme Court of India having only appellate jurisdiction with reference to that State; 
6. Modifying Article 352 of the Constitution to enable the declaration of emergency only at the request or with the concurrence of the State government in the event of any internal disturbance in the State; and, 
7. The Head of the State, Sadr-i-Riyasat, being elected by the State Legislature (instead of being appointed by the President of India, as applicable to Governors of other states). 
8. Articles 356 and 360 of the Constitution of India being inapplicable to the State.

The important point to note here is that the Central Executive agreed to the above concessions. It is clear that the representatives of the Indian government were not empowered by the Indian Parliament to hold parleys with their Jammu and Kashmir counterparts. Hence, it is a safe conclusion that, at best, the Delhi Agreement was an informal, non-legal and non-binding understanding between the State of Jammu and Kashmir and the Union of India. Therefore, no concession extended to Jammu and Kashmir in this understanding casts a duty or obligation on the Union of India.

In fact, it may well be argued that the Delhi Agreement, which forms the basis for several essential features of the Constitution of Jammu and Kashmir, is unconstitutional and ultra vires of the Constitution of India. Why? Article 370 does not empower “representatives” of the Union Executive to negotiate and conclude matters, which fall wholly and squarely within the purview of the Legislative.

Then again, Article 370(1) (d) of the Constitution of India vests the President only with power to “specify”‒ i.e., name, state or mention‒ by order, explicitly or in detail, the exceptions and modifications to the provisions of the Indian Constitution as applicable to Jammu and Kashmir. In other words, Article 370 only confers on the President powers to notify by order, which in the general schema of the Constitution does not include powers to “amend constitutional provisions” related to “distribution of powers” between the Union and any of the States in the Union. Besides, interpreting Article 370 so widely as to vest the President with such extensive legislative powers as to enable the altering ad infinitum of fundamental and constitutional rights of people of/in the State of Jammu and Kashmir runs contrary to the very essence of our Constitution and the tenets of “separation of powers” enshrined in it. Promulgation of Orders under the Article also violates many characteristics of the “basic structure” of the Constitution as delineated in a plethora of Supreme Court judgments [e.g., Kesavananda Bharati, Raj Narain, Kihoto Hollohon and other cases).

In fact, it must be said in this context that the President’s legislative powers are confined to: (a) assent for transforming Bills passed by the two Houses into an Act, (b) rule-making for prescribing detailed provisions, (c) declaration of emergency; and (d) ordinance-making. Clearly, “specifying” by order “exceptions and modifications” to constitutional provisions falls under none of these four broad areas of legislative functions of the President. Indeed, construing “exceptions and modifications...specify by order” in Article 370(1) (d) widely to imply “rule-making to prescribe detailed provisions” is a clear transgression, by the Union Executive, of powers of the Union Legislative.

Formulation of Constitutional Relations

On 20 October, 1953, committees were set up under the aegis of the Constituent Assembly of Jammu and Kashmir. The “Basic Principles Committee” presented its report, which was adopted on 15 February, 1954. The adoption of this report embodied the ratification of the State’s accession to India. According to The Statesman (Calcutta Edition), dated 17 February, 1954, of the 75 members in the Constituent Assembly, 64 were present and voted unanimously. Of the 11 absentee members, six were under detention.

A positive outcome of the “Basic Principles Committee” report was that the Customs barrier between Jammu and Kashmir and India was removed with effect from April 13, 1954, at the initiative of the State government.

Constitution (Application to Jammu and Kashmir) Order of 1954

Be as it may, the Delhi Agreement of 1952 formed the framework within which the Constituent Assembly of Jammu and Kashmir worked to draft the Constitution of the State. On May 14, 1954, the President of India, acting under Article 370, issued the Constitution (Application to Jammu and Kashmir) Order, 1954, endorsing the relationship of Kashmir with India as defined in the Delhi Agreement.

This Order superseded the earlier Constitution (Application to Jammu and Kashmir) Order of 1950.

The Order of 1954 enlarged the powers of the Union Parliament in relation to Jammu and Kashmir; yet, the internal autonomy and unique constitutional status of the State were not interfered with.

Subsequently, a series of amendments to the Constitution (Application to Jammu & Kashmir) Order, 1954 have further strengthened the bonds of harmonious association of the State with the rest of the country. But, certain core aberrations continue to haunt the constitutional relationship of Jammu and Kashmir with the Union of India.

The Order of 1954 also introduced Article 35A to the Constitution of India, which defined the classes of persons, who were, are and shall be permanent residents of the State of Jammu and Kashmir. Article 35A also confers special rights and privileges on such permanent residents and saves laws that impose upon other persons any restrictions with reference to: (a) employment under the State Govt; (b) acquisition of immovable property in the State; (c) settlement in the State and so on.

Constitution of Jammu and Kashmir, 1957

The task of framing the Constitution of Jammu and Kashmir entered a decisive phase towards the end of 1956. On 10 October, 1956, the draft was tabled on the floor of the Constituent Assembly, which then deliberated in detail, approved and adopted the Constitution on 17 November, 1956. Subsequently, the Constitution of Jammu and Kashmir came into force on 26 January, 1957.

It is pertinent to note that Section 3 of the Constitution of the State categorically declares that “the State of Jammu and Kashmir is and shall be an integral part of the Union of India.”

Further, Section 5 states that, “The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India.” On top, Section 147 of the Constitution of Jammu and Kashmir, which provides for the Amendment process, confirms that the Sections 3 and 5 are non-amendable.

The Constituent Assembly of Jammu and Kashmir was later duly dissolved after State Assembly elections were held in March 1957.

Concluding remarks

The twin pillars of (a) the Constitution of Jammu and Kashmir, 1957; and (b) the Constitution (Application to Jammu and Kashmir) Order, 1954, have come to govern the constitutional relationship between the State and the Union of India. Ironically, both pillars have been propped up through the flawed use of the temporary provision of Article 370 as crutches.

Some authors and legal professionals, like Mr. A.G. Noorani (in his book, 'The Kashmir Dispute, 1947-2012', claim that “Hari Singh intended to assume independence...,” which is neither supported by a shred of non-hearsay evidence nor well-supported on legal principles. It is amazing how such unsubstantiated, conjectural claims get parroted as the Gospel truth.

Then, “experts”, like Mr. B.A. Khan, Former Chief Justice of High Court of Jammu and Kashmir, and Mr. Rajeev Dhavan, a “constitutional expert”, who has been respectively quoted in the Kashmir Times as having said respectively that “...abrogation of Article 370 seems impracticable” and “...(abrogation) will put the accession (of Jammu & Kashmir) in jeopardy” are well advised to consider the following arguments:

1. The Union has used “temporary provisions” of Article 370 over the years to alter the Constitutional provisions vis-à-vis Jammu and Kashmir and to acquire power, residuary or otherwise, to legislate over matters in the State List and beyond through Executive Orders. On the contrary, under Article 368, a constitutional amendment on matters of "Union-State relations" requires a two-thirds vote by both Houses of Parliament plus ratification by the States concerned. 
2. The special treatment for permanent residents of Jammu and Kashmir is indeed a violation of the generally accepted principle of ‘equality before law’. With due respects, Justice A.S. Anand explains this anomaly with a convoluted: “The special treatment has been accorded to the ‘permanent residents’ to safeguard them from exploitation from outside...” It doesn’t take a financial wizard to figure out that this discrimination is a deterrent, which has reduced to a trickle private investment into the State. In turn, the loss of economic activity has severely curtailed job and wealth creation. 
3. The permanent residents of Jammu and Kashmir are also subject to curtailment of several distinct freedoms, otherwise guaranteed by Article 19 of the Constitution of India, on the additional ground of “security of the State”, a very wide term. Further, clause (7) has been added to Article 19, by virtue of which no judicial review is possible of such restrictions on the freedoms enshrined in clauses (2), (3), (4) and (5) of Article 19, if the Legislature of that State deems such restrictions imposed as reasonable.  

The long and short of my arguments is that a Frankenstein monster has been created. The Article-370-linked twists and turns in the Constitution of India make it seem like a classic case of the tail wagging the dog. 

So much so, that it is quite natural to ask if this great nation's Constitution indeed has served the people of Jammu and Kashmir as it should have. And, wonder, why some people in the Valley are dead against a discussion on Article-370's merits and demerits, let alone its abrogation.

Therefore, I am compelled to rhetorically pose: 

“Does Article 370 truly bestow special provisions on the people of Jammu and Kashmir? Or, is it just a red herring to use gullible people of the State as pawns and puppets for selfish motives?”

Any answers?

The Pre-Independence History and Geography of Jammu and Kashmir - A Legal Perspective

Despite seeming farfetched, the history and geography of Jammu and Kashmir are intricately intertwined in the lead-up to the Instrument of Accession. Hence, a clear understanding of the 'geo-historical' backdrop is a conditio sine qua non for any meaningful dialogue on the legality, and the morality too if you like, or otherwise of Article 370.

In this piece, I analyze the legal issues surrounding the geopolitical landscape of the State of Jammu and Kashmir, if only to debunk the absurd, unfounded claims and notions of some about the validity of its accession to India. Questions are often posed on even the terms of transfer of sovereignty to the ruler of the State during the British Raj.

'Confuse, if you cannot convince' is seemingly the modus operandi of some of these intellectuals and thought leaders. Nevertheless, they have sullied and muddied the waters so much that many wrongly believe that the accession of Jammu and Kashmir is somehow faulty and flawed.

So then, for starters, let me begin with a description of the geographic region subjected to the exposition herein. The erstwhile princely State of Jammu and Kashmir, which existed in India from 1846 to 1947 during British rule, consisted of the present-day Indian State of Jammu and Kashmir (inclusive of the Ladakh region); the territories of Azad Kashmir and Gilgit-Baltistan under Pakistani control currently; and, Aksai Chin, a part of the Xinjiang Autonomous Region, which is under Chinese administration now.

Brief History of the Region

Till 1846, the Jammu, Kashmir and Ladakh regions, of the modern-day Indian State of Jammu and Kashmir, were separate and distinct areas under different rulers.

Most historians trace the history of Kashmir to the third Century BC. During the second and third century BC, it was part of Emperors Asoka (of the Mauryan dynasty) and Kanishka's (of the Kushan dynasty) empires. Later, Kashmir became the target of several attacks and invasions. So, it was under the rule of several kings and dynastic rulers, including the White Huns (Hephtalite Empire), Karkotas, Utpalas, etc.

In the 14^th century AD, Shah Mir ascended the throne of Kashmir as its first Muslim Ruler. The Shah Mir dynasty ruled the region for a couple of centuries followed by the Chak dynasty.

Then in 1586 AD, the Mughal potentate, Emperor Akbar invaded and conquered the valley. Mughal rule of Kashmir lasted for over a century and half. The Nadir Shah invasion of India in 1738 AD weakened Mughal control over Kashmir.

Then in 1753 AD, a general of Ahmed Shah Abdali’s army conquered Kashmir, including the Gilgit-Baltistan region. This brought it under the rule of Afghan / Pathan governors, whom the Durranis of Kabul appointed. Finally in 1819 AD, Maharaja Ranjit Singh of Punjab invaded Kashmir and wrested it from the Pathans. For the next couple of decades, Governors appointed by the Sikh Durbar at Lahore ruled Kashmir.

Jammu: Around the time of the Afghan / Pathan rule of Kashmir, the Jammu region was under Ranjit Deo, a Dogra chief of Rajput descent. Ranjit Deo’s death in 1780 AD sparked a succession dispute among his three grand-nephews. The Sikh Durbar of Lahore exploited the situation by annexing Jammu and turning it into a dependency in 1808 AD.

Thus, the three grand-nephews of Ranjit Deo served under Maharaja Ranjit Singh of Lahore till about 1820 AD. Pleased with the services rendered, the Sikh Durbar conferred the hereditary title of Raja on the eldest brother, Gulab Singh. Many principalities within the Jammu region were awarded to the three brothers. Eventually, whole of Jammu fell into the hands of Raja Gulab Singh.

Ladakh: The Ladakh region, on the contrary, had been a part of Tibet for centuries. Suzerainty over the province frequently changed hands between Chinese and Tibetan rulers. Then in the 17^th century AD, King Bhagan reunited Ladakh and founded the Namgyal dynasty. Despite suffering a defeat at the hands of the Mughals, Ladakh retained its independence, albeit severely restricted.

Later, in 1834 AD, Raja Gulab Singh, the ruler of Jammu conquered all of the Ladakh and Baltistan regions. The map above shows the territories under Maharaja Ranjit Singh in 1838 AD. The Jammu, Kashmir and Ladakh regions, as can be seen, were a part of the Sikh empire at that time.

Creation of the Princely State of Jammu and Kashmir

In 1845, the First Anglo-Sikh war broke out between the Sikhs and the British at Sobraon in Taran-Taran District. Despite owing allegiance to the Sikhs and being asked to extend help, Raja Gulab Singh remained aloof. He avoided attacking the British under one pretext or the other. This earned him the gratitude of British diplomats.

The British eventually routed the Sikh Durbar. Raja Gulab Singh negotiated the terms for surrender of the Maharaja of Lahore. By the Treaty of Lahore of 1846, concluded between the British and Maharaja Dhuleep Singh of Lahore, the Sikhs transferred Kashmir besides the payment of a war indemnity to the British. 

Thus, the Sikh Durbar ceded (vide Article 4 of the said Treaty), to the “Honourable Company, in perpetual sovereignty, as equivalent of Rs.10 million, all its forts, territories, rights and interests in the hilly regions situated between Rivers Beas and Indus....”

The map below shows the Sikh territories after the Lahore Treaty and cession of Kashmir in 1946. 

By dint of Article 12 of the Treaty of Lahore, the Maharaja of Lahore also agreed to “...recognize independent sovereignty of Raja Gulab Singh, in such territories...as made over to the said Raja Gulab Singh, by separate Agreement between himself and the British Government...”

A week after the conclusion of the Treaty of Lahore, the British concluded the Treaty of Amritsar with Maharaja Gulab Singh. By Article I of that treaty, the British Government transferred and made over “for ever in independent possession to Maharaja Gulab Singh and the heirs male of his body...” all of Kashmir (as defined in Article IV of the Treaty of Lahore).

Thus, the princely State of Jammu and Kashmir attained sovereignty in 1846. The 1919 AD map of the State above shows the territories that belonged to the monarchic State.

The Acquisition of Sovereignty

Before examining the legal and moral issues encompassing Raja Gulab Singh’s ascent to the throne― and their impact on the accession of the erstwhile State of Jammu and Kashmir in 1948 to the Union of India― it is pertinent to summarize the international laws related to the acquisition of territorial sovereignty.

Many methods of acquisition of sovereignty are presently recognised under international law. Some were deemed lawful in the past. These methods include:

1. Accretion: it is the physical expansion of an existing territory through geological and other natural processes, such as alluvion (the deposit of sediment) or volcanism (i.e., eruption of a volcano).
2. Cession: The acquisition of sovereignty over territory through a transfer to it by another state is cession. Typically, cession is brought into effect through treaties (of cession or accession). Examples include the transfer of Hong Kong Island to United Kingdom under the Treaty of Nanking, 1842; the United States’ purchases of Alaska and the Louisiana territory through treaties with Russia (1867) and France (1803) respectively. Another example is the Convention of 1917 between the United States and Denmark for cession by transfer (i.e., sale / purchase) of the Danish West Indies (i.e., Virgin Islands). 
3. Conquest: It refers to acquisition of territory by way of force or through armed aggression. If such military intervention entails territorial cession, then there is often a peace treaty or settlement. However, on occasion, wars end in an armistice without any formal peace treaty covering it, e.g., the Korean War. Title to territory by conquest specifically involves: (a) possession of territory by force; (b) display of intention to hold; and (c) ability to retain the territory as its sovereign power. A most recent example of conquest is Israel’s capture and annexation of the Golan Heights in 1967. 
4. Occupation: It is the acquisition (or attribution) of territory either in defiance of or due to the absence of a proper sovereign. Effective occupation is the control of free, newly-discovered territory. The occupying power has typically no sovereign title or right to such land. E.g., Spain’s colonization of the Americas. Undoubtedly, by immemorial usage having the force of law, besides the animus occupandi, the actual (and not the nominal) taking of possession is a necessary condition of occupation. It usually requires that there be an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis. 
5. Prescription: It connotes the effective control of territory of another acquiescing state. Similar to occupation, it refers to the acquisition of sovereignty by way of the actual exercise of sovereign functions, over the territory in question, for a reasonably prolonged period of time. It involves the open encroachment by the new sovereign upon a territory, without either protest or other contest by the original sovereign or objection from other states. This doctrine legalizes de jure the de facto transfer of sovereignty caused by the original sovereign's extended negligence and/or neglect of the area in question. E.g., In Grisbadarna Case (1909), both Sweden and Norway based their claims on maritime territories on prescription. 
6. Adjudication: Sometimes, sovereignty over a territory is determined through legal or quasi-legal proceedings. Such adjudication is, at times, judicial. For instance, in 1908 AD the International Court of Justice transferred the Bakassi peninsula to Cameroon (from Nigeria). Other times, such adjudication is made through arbitration. For e.g., an arbitral award was made in 1899 to settle the boundary dispute between British Guyana and Venezuela.

Principles of International Law for Treatment of Territory

Roman property regime and its equitable principles of uti possidetis juris (Latin for ‘as you possess under law’) and terra nullius (again Latin for ‘land belonging to no one’) have been applied in so many different contexts that they have truly become the bedrocks of modern international law for the treatment of territory.

In the past only unoccupied territory could be legally acquired. Yet, the Americas were colonized in contravention of this prevailing principle. So, the ‘Rule of Inter-temporal Law’ was conceived to prevent judging of past actions with contemporary standards. This rule of prospective application is vital since it deems that all actions need to be judged in the strict temporal context in which they occurred. The prime aim is to prevent the finding of past injustices (e.g., colonization) against the vagaries of legal evolution. Thus, retrospective application of more modem and progressive ideas, to acts and deeds that occurred before such ideas developed, is proscribed.

Further, the doctrine of uti possidetis, which solidifies the sanctity of boundaries, does allow territorial adjustment due to consent. Yet, this consent is required between existing sovereign states. Non-state actors have no explicit right to demand territorial change even though the right to self-determination is enshrined in the two international covenants of 1966 that are the blueprint for the human rights regime.

Therefore, existing states have sought to minimize the impact of the right of self-determination by declaring it as a right that only exists in an 'internal' guise. So, in bid to access the right to self-determination, groups (of unrepresented people) often seek secession by attempting to pierce the veil of domestic sovereignty and internationalizing their conflicts with their respective state governments.

In view of the foregoing, it is clear that sovereignty over the territory of Kashmir was acquired, first by the British, through conquest and then, by Raja Gulab Singh, through a purchase. By virtue of Article 12 of the Treaty of Lahore, Raja Gulab Singh also acquired absolute sovereignty over the dependencies of Jammu, Baltistan and Ladakh too, which he already possessed.   

Critics of the Kashmir Transfer

KM Panikkar, in his 1953 book “The Founding of the Kashmir State”, says (as Justice AS Anand quotes in his book), "in discussing this question of the transfer of Kashmir, it is... important to remember (that) there was no sale of Kashmir at all." Thus, he implies that the transfer of Kashmir to Maharaja Gulab Singh was null and void because of the anomaly, to quote him, of ‘...no sale of Kashmir...’ simply because ‘no consideration’ was offered by the British (to the Lahore Durbar).

That is a preposterous argument. The Lahore Durbar relinquished its sovereignty over Kashmir in the Treaty of Lahore, thus, paving the way for the British to negotiate the terms of sale of Kashmir to Raja Gulab Singh. Hence, the transfer of sovereignty over Kashmir can be deemed to consist of two phases: (a) the cession of Kashmir to the British (as reparation for the First Anglo-Sikh War); and, (b) the sale of Kashmir to Raja Gulab Singh.

The Treaty of Lahore left it to the British Government to enter into a separate arrangement with Raja Gulab Singh for the Kashmir sale. In effect, the purchase of Kashmir (by Raja Gulab Singh) was a tripartite arrangement that was executed through two bipartite agreements, viz., the Treaty of Lahore and the Treaty of Amritsar.

Indeed Justice AS Anand submits rightly (in his book, "The Constitution of Jammu and Kashmir - Its Development & Comments")... “When you accept money in consideration for a transfer of a material thing, the transaction is nothing but ‘sale’. Undisputedly, a person cannot purchase something unless it has been sold to him and if it is sold...the transaction is a sale...”

However, Justice Anand goes on to allege that, “...at the time of the ‘sale of Kashmir’ no consideration was given to the moral effects of the deed. Millions of people were sold like sheep and cattle and the whole transaction was made behind their backs... The Treaty of Amritsar consisting of 10 articles made no mention whatsoever, of the rights, interests or the future of the people of the State. Unlimited power was transferred to a Dogra Hindu Ruler to rule over the Muslim majority population.”

With due respect to the former Chief Justice of India, this argument is untenable too. It is a red herring in toto. The Hon’ble Justice perhaps missed the forest for the trees. Indeed, from a “contracts law” perspective, the sale being of territory, the argument has some validity. However, we are talking acquisition of sovereignty over territory, not just title over property here.

The Hon’ble Justice adds, “Since, in the Indian Native States, absolute autocracy was the principal characteristic of the political life at that time; no voice was raised against this transaction in the State...but outside the State sympathy was shown towards the masses in Jammu and Kashmir.”

Again, the rationale does not hold water, if one were to go by the many examples (the Virgin Islands purchase; Alaskan purchase, etc.) cited above for acquisition of sovereignty over territory.

Concluding Remarks

It is abundantly clear that Raja Gulab Singh’s acquisition of sovereignty over Jammu and Kashmir was absolute once the Treaty of Amritsar was signed and the territory ceded to him by the British.

Thus, as the monarch of the erstwhile kingdom, he wielded supreme power and authority over the territories, resources and people of the State. As can be seen from the text of the Treaty of Amritsar, that inheritable right was passed on to Raja Hari Singh by succession (i.e., through “...the heirs male of his body...,” as specified in Article 1 of the Treaty of Amritsar).

Once Maharaja Hari Singh ascended the throne and became the sovereign head of the State, he had all powers and authority, legally, morally or otherwise, to sign the Instrument of Accession on October 26, 1947, acceding the whole of his princely state (including Jammu, Kashmir, Northern Areas, Ladakh, Trans-Karakoram Tract and Aksai Chin) to the Dominion of India.

A careful reading of The Jammu and Kashmir Constitution Act, 1934 (in particular, Article 4), will further show that the aforementioned Act did not cut, limit or curtail any of the Maharaja Hari Singh’s rights or powers over the State.

So, I pose: “Why do some thought leaders present vague, convoluted logic to question the validity of the Kashmir purchase and subsequent accession?”

Counter-arguments welcome, please!