Does the scrapping of Jammu and Kashmir’s special status violate the terms of accession to India?

On August 5, after the Centre announced its decision to revoke Jammu and Kashmir’s special status, former chief minister of the state Omar Abdullah called it “a total betrayal of the trust that the people of Jammu and Kashmir had reposed in India when the State acceded to it in 1947”.

In 1947, Maharaja Hari Singh, the Dogra dynast who was then the sovereign of Jammu and Kashmir, signed an agreement with India called the Instrument of Accession. With this, the state became a part of the Indian Union with the Centre’s law-making powers over the state restricted to just three subjects. This special status took the form of Article 370 in the Indian Constitution.

On August 6, the Parliament amended this Article to obliterate the special status that Jammu and Kashmir had enjoyed for over 70 years. With the amendments, the Indian Constitution will fully apply to the state, now converted into two Union Territories.

Many observers say this move by the Bharatiya Janata Party-led government fundamentally changes the relationship between India and Jammu and Kashmir. The removal of special status without consultation with the people of Jammu and Kashmir means autonomy, which was fundamental to the accession, has been compromised.

“This is a unilateral withdrawal of a promise that was fundamental to Jammu and Kashmir’s relation to India,” said Faizan Mustafa, vice chancellor of National Academy of Legal Studies and Research in Hyderabad.

If India has indeed gone back on something so crucial to the accession of Jammu and Kashmir, could this be contested in international forums?

To answer this question, it is necessary to go back to some of the fundamental events that shaped the state of Jammu and Kashmir following the end of the British rule of India.

Instrument of Accession

Jammu and Kashmir’s modern history begins with the Treaty of Lahore that the British East India Company signed with seven-year-old Sikh king Maharaja Duleep Singh Bahadur on March 9, 1846, after the end of the first Anglo-Sikh war. Through this treaty, the British came into possession of the territory that is now known as Jammu and Kashmir.

Seven days later on March 16, the British transferred this territory to Dogra king Maharaja Gulab Singh. This area included “all the hilly or mountainous country with its dependencies situated to the eastward of the River Indus and the westward of the River Ravi including Chamba and excluding Lahol”.

Gulab Singh paid about Rs 75 lakh and accepted the supremacy of the British. As a token of this agreement, he had to “present annually to the British Government one horse, twelve shawl goats of approved breed (six male and six female) and three pairs of Cashmere shawls”.

By the 1930s, however, one of his descendants, Maharaja Hari Singh, faced a revolt from the Muslims of his kingdom, which came to be known as the Quit Kashmir Movement. During this period, Sheikh Abdullah, a future prime minister of the state, emerged as a strong leader of the Muslims of Kashmir.

In 1947, after India attained Independence from the British, it actively tried to get princely states like Jammu and Kashmir to accede to its Union. Hari Singh, after a bout of indecisiveness, decided to take India’s help in repulsing an attack by Pakistan-backed tribal forces. India laid down a condition for sending troops to Kashmir: the king would have to sign an instrument of accession joining the Indian Union.

According to official accounts, the instrument of accession, which laid the foundation for the relationship between the Indian Union and Jammu and Kashmir, was inked on October 26, 1947, before India became a republic and was still a dominion of the British. The document was signed by Louis Mountbatten, the first governor-general of Independent India. On October 27, the Indian Army landed in Srinagar to drive the invaders out.

Part of the instrument was the clause that the dominion government had rights to make laws as applicable to Jammu and Kashmir only under three subjects: defence, external affairs and communications.

In 1949, Hari Singh appointed Sheikh Abdullah as the prime minister of Jammu and Kashmir, who in turn joined the Indian Constituent Assembly to negotiate a special status for the state. Born out of this effort was Article 370.

The very application of the Indian Constitution in Jammu and Kashmir was possible only through Article 370, which gave the state its special status. On January 26, 1950, a presidential order was effected. Though the Instrument of Accession mentioned only three broad subjects under which the Centre could make laws for Jammu and Kashmir, this presidential order went into specific subjects within the three broad categories. For example, the Union could now use atomic energy for defence and exploit mineral resources for its production.

A year later, the Jammu and Kashmir Constituent Assembly was formed and was tasked with framing the state’s Constitution. By 1953, however, the relationship between the Centre led by Prime Minister Jawaharlal Nehru and the state government led by Sheikh Abdullah soured. He was dismissed as prime minister of Jammu and Kashmir and arrested.

With a friendly government led by Bakshi Ghulam Mohammad in place in the state, the president issued the order of 1954, through with many other provisions of the Indian Constitution were applied to Jammu and Kashmir.

Constitution and integration

Three years later in 1957, the Constituent Assembly of Jammu and Kashmir adopted its Constitution. The document made it clear that the state was now an integral part of India.

Sixty-two years after its adoption, the Centre moved amendments to Article 370 which effectively nullified the Jammu and Kashmir Constitution. This means the Indian Constitution applies to the state, now converted into a Union Territory, in entirety.

So what happens to the Instrument of Accession that Maharaja Hari Singh signed in 1947?

Legally, the document remains the source of Jammu and Kashmir’s integration with India. The Centre has not made any changes to this instrument. The question now being raised is whether the modification of Article 370, which gave special status to Jammu and Kashmir, affects the Instrument of accession and thereby the position of Jammu and Kashmir as an integral part of India.

Faizan Mustafa, vice chancellor of NALSAR, said that the special status, which gave the state a higher degree of autonomy compared to other states, is a promise that India made for the accession of Jammu and Kashmir. In a sense, Article 370 was more about autonomy than of integration.

“The integration of Jammu and Kashmir was completed long ago,” he said. “The autonomy, however, is a continuous element which the changes to Article 370 has brought to a close.”

Does this mean Kashmiris have the legal basis to contest the removal of special status in an international forum?

Senior lawyer Sanjay Hegde said there is no sovereign state of Jammu and Kashmir anymore. In an international forum, a dispute over territory could be considered only if it involved two sovereign states. “The sovereignty was signed away to India in 1947 by Hari Singh,” he said. “There is no way to revive it or re-operate it.”

He pointed out that when India signed agreements with princely states after Independence, one of the conditions was that the government would give regular payments called privy purses to the erstwhile royal families.

“The privy purses were abolished later,” Hegde said. “This does not mean the accession is also abolished.”