Jammu and Kashmir is a state in northern India, often denoted by its acronym, J&K. It is located mostly in the Himalayan mountains and shares borders with the states of Himachal Pradesh and Punjab to the south. The Line of Control separates it from the Pakistani-administered territories of Azad Kashmir and Gilgit-Baltistan in the west and north respectively since 1947, and a Line of Actual Control separates it from the Chinese-administered territory of Aksai Chin in the east since 1962. The state has special autonomy under Article 370 of the Constitution of India.
The Instrument of Accession was a legal document first introduced by the Government of India Act 1935 and used in 1947 to enable each of the rulers of the princely states under British paramountcy to join one of the new dominions of India or Pakistan created by the Partition of British India.
Kashmir before Instrument of Accession –
565 princely states existed in India during the period of British rule. These were not parts of British India proper, having never become possessions of the British Crown, but were tied to it in a system of subsidiary alliances. Here you can read more about How Did India Achieve The Integration Of Princely States?
The Government of India Act 1935 introduced the concept of the Instrument of Accession, wherein a ruler of a princely state could accede his kingdom into the ‘Federation of India’. The federation concept was initially opposed by the Indian princes, but accession of all the princely states was almost complete when World War II occurred.
In 1947 the British finalized their plans for quitting India, and the question of the future of the princely states was a conundrum for them. As they were not British, they could not be partitioned by the British between the new sovereign nations of India and Pakistan. The Indian Independence Act 1947 provided that the suzerainty of the British Crown over the princely states would simply be terminated, effective 15 August 1947. That would leave the princely states completely independent, even though many of them had been dependent on the Government of India for defense, finance, and other infrastructure. With independence, it would then be a matter for each ruler of a state to decide whether to accede to India, to accede to Pakistan, or to remain independent.
Maharaja Hari Singh became the ruler of the princely state of Jammu and Kashmir in 1925, and he was the reigning monarch at the conclusion of the British rule in the subcontinent in 1947. Jammu and Kashmir had a Muslim majority (77% Muslim by the previous census in 1941). Following the logic of Partition, many people in Pakistan expected that Kashmir would join Pakistan. However, the predominant political movement in the Valley of Kashmir (Jammu and Kashmir National Conference) was secular and was allied with the Indian National Congress since the 1930s. So many in India too had expectations that Kashmir would join India. The Maharaja was faced with indecision.
On 22 October 1947, rebellious citizens from the western districts of the State and Pushtoon tribesmen from the Northwest Frontier Province of Pakistan invaded the State, backed by Pakistan. The Maharaja initially fought back but appealed for assistance to India, who agreed on the condition that the ruler accedes to India. Maharaja Hari Singh signed the Instrument of Accession on 26 October 1947 in return for military aid and assistance, which was accepted by the Governor General the next day. While the Government of India accepted the accession, it added the proviso that it would be submitted to a “reference to the people” after the state is cleared of the invaders, since “only the people, not the Maharaja, could decide where Kashmiris wanted to live.” It was a provisional accession.
Once the Instrument of Accession was signed, Indian soldiers entered Kashmir with orders to evict the raiders. The resulting Indo-Pakistani War of 1947 lasted till the end of 1948. At the beginning of 1948, India took the matter to the United Nations Security Council. The Security Council passed a resolution asking Pakistan to withdraw its forces as well as the Pakistani nationals from the territory of Jammu and Kashmir, and India to withdraw the majority of its forces leaving only a sufficient number to maintain law and order, following which a Plebiscite would be held. A ceasefire was agreed on 1 January 1949, supervised by UN observers.
A special United Nations Commission for India and Pakistan (UNCIP) was set up to negotiate the withdrawal arrangements as per the Security Council resolution. The UNCIP made three visits to the subcontinent between 1948 and 1949, trying to find a solution agreeable to both India and Pakistan. It passed a resolution in August 1948 proposing a three-part process. It was accepted by India but effectively rejected by Pakistan. In the end, no withdrawal was ever carried out, India insisting that Pakistan had to withdraw first, and Pakistan contending that there was no guarantee that India would withdraw afterward. No agreement could be reached between the two countries on the process of demilitarization.
India and Pakistan fought two further wars in 1965 and 1971. Following the latter war, the countries reached the Shimla Agreement, agreeing on a Line of Control between their respective regions and committing to a peaceful resolution of the dispute through bilateral negotiations.
What is the debate over Instrument of Accession –
The primary argument for the continuing debate over the ownership of Kashmir is that India did not hold the promised plebiscite. In fact, neither side has adhered to the UN resolution of 13 August 1948; while India chose not to hold the plebiscite, Pakistan failed to withdraw its troops from Kashmir as was required under the resolution.
India gives the following reasons for not holding the plebiscite:
1. United Nations Security Council Resolution 47 on Kashmir was passed by UNSC under chapter VI of UN Charter, which are non-binding and have no mandatory enforceability. In March 2001, the then Secretary-General of the United Nations, Kofi Annan during his visit to India and Pakistan, remarked that Kashmir resolutions are only advisory recommendations and comparing with those on East Timor and Iraq was like comparing apples and oranges, since those resolutions were passed under chapter VII, which make it enforceable by UNSC. In 2003, then Pakistan President Pervez Musharraf announced that Pakistan was willing to back off from demand for UN resolutions for Kashmir.
2. India has consistently told that UN resolutions are now completely irrelevant and Kashmir dispute is a bilateral issue and it has to be resolved under 1972 Shimla Agreement and 1999 Lahore Declaration.
3. The 1948–49 UN resolutions can no longer be applied, according to India, because of changes in the original territory, with some parts “having been handed over to China by Pakistan and demographic changes having been effected in Azad Kashmir and the Northern Areas.”
4. Another reason for the abandonment of the referendum is because demographic changes after 1947 have been effected in Pakistan-administered Kashmir, as generations of Pakistani individuals non-native to the region have been allowed to take residence in Pakistan-administered Kashmir. Furthermore, India alleges that in Jammu & Kashmir state of India, the demographics of the Kashmir Valley have been altered after separatist militants coerced 250,000 Kashmiri Hindus to leave the region.
5. India cites the 1951 elected Constituent assembly of Jammu and Kashmir, which voted in favor of confirming accession to India. Also, the 2014 assembly elections saw the highest voter turnout in the state in the last 25 years, prompting Prime Minister of India Narendra Modi to claim that it reflects the faith of the Kashmiri people in the democratic system of India and that they have given a “strong message to the world”.
What does Pakistan say on Instrument of Accession –
• A statement from the British Cabinet Mission in India in 1946 confirmed that Jammu and Kashmir, a princely state at the time of partition, was a sovereign territory, and Article 7 of the Indian Independence Act of 1947 dealing with lapse of suzerainty of the British Crown over the Indian states reaffirmed this fact, so the Kashmiri people had a vested right of self-determination from the time of independence.
• The Kashmiri’s right of self-determination was further secured by the progressive development of customary international law in relation to this collective freedom. General Assembly Resolution 1514 (1960) firmly recognized the right of colonial people to self-determination; and General Assembly Resolution 2625 (1970) subsequently affirmed the right of internal self-determination, which the population of Kashmir has consistently been deprived of
• The popular Kashmiri insurgency which erupted on 1989 demonstrates that the Kashmiri people no longer wish to remain within India. Pakistan suggests that this means that Kashmir either wants to be with Pakistan or independent.
• According to the two-nation theory, which is one of the theories that is cited for the partition that created India and Pakistan, Kashmir should have been with Pakistan, because it has a Muslim majority.
• India has shown disregard to the resolutions of the UN Security Council and the United Nations Commission in India and Pakistan by failing to hold a plebiscite to determine the future allegiance of the state.
• In 2007 there have been reports of extrajudicial killings in Indian-administered Kashmir by Indian security forces while claiming they were caught up in encounters with militants. The encounters go largely uninvestigated by the authorities, and the perpetrators are spared criminal prosecution. Human rights organisations have strongly condemned Indian troops for widespread abuses and murder of civilians while accusing these civilians of being militants.
Diplomatic relations between India and Pakistan soured for many other reasons and eventually resulted in three further wars in Kashmir the Indo-Pakistani War of 1965, the Indo-Pakistan War of 1971 and the Kargil War in 1999. India has control of 60% of the area of the former Princely State of Jammu and Kashmir (Jammu, Kashmir Valley, Ladakh and Siachen Glacier); Pakistan controls 30% of the region (Gilgit–Baltistan and Azad Kashmir). China administers 10% (Aksai Chin and Trans-Karakoram Tract) of the state since 1962.
A true Copy of Jammu & Kashmir’s Instrument of Accession –
Among the more momentous of such accessions was that executed by Maharaja Hari Singh, ruler of the State of Jammu and Kashmir, on 26 October 1947. It gave control of Jammu and Kashmir to the government of India. The accession of Jammu and Kashmir was accepted by Lord Mountbatten of Burma, Governor-General of India, on 27 October 1947. The text (excluding the schedule mentioned in its third point) is as follows:
“ Whereas the Indian Independence Act 1947, provides that as from the fifteenth day of August 1947, there shall be set up an Independent Dominion known as India, and that the Government of India Act, 1935 shall, with such omission, additions, adaptations and modifications as the governor-general may by order specify, be applicable to the Dominion of India.
Read more – What Is The Kashmir Issue And How It Started?
And whereas the Government of India Act, 1935, as so adapted by the governor-general, provides that an Indian State may accede to the Dominion of India by an Instrument of Accession executed by the Ruler thereof.
Now, therefore, I Shriman Inder Mahander Rajrajeswar Maharajadhiraj Shri Hari Singhji, Jammu and Kashmir Naresh Tatha Tibbetadi Deshadhipathi, Ruler of Jammu and Kashmir State, in the exercise of my sovereignty in and over my said State do hereby execute this my Instrument of Accession and
1. I hereby declare that I accede to the Dominion of India with the intent that the governor-general of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of this my Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State of Jammu and Kashmir (hereinafter referred to as “this State”) such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India, on the 15th day of August, 1947, (which Act as so in force is hereafter referred to as “the Act”).
2. I hereby assume the obligation of ensuring that due effect is given to the provisions of the ACT within this state so far as they are applicable therein by virtue of this my Instrument of Accession.
3. I accept the matters specified in the schedule hereto as the matters with respect to which the Dominion Legislatures may make laws for this state.
4. I hereby declare that I accede to the Dominion of India on the assurance that if an agreement is made between the Governor General and the ruler of this state whereby any functions in relation to the administration in this state of any law of the Dominion Legislature shall be exercised by the ruler of this state, then any such agreement shall be deemed to form part of this Instrument and shall be construed and have effect accordingly.
5. The terms of this my Instrument of accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947 unless such amendment is accepted by me by an Instrument supplementary to this Instrument.
6. Nothing in this Instrument shall empower the Dominion Legislature to make any law for this state authorizing the compulsory acquisition of land for any purpose, but I hereby undertake that should the Dominion for the purposes of a Dominion law which applies in this state deem it necessary to acquire any land, I will at their request acquire the land at their expense or if the land belongs to me transfer it to them on such terms as may be agreed, or, in default of agreement, determined by an arbitrator to be appointed by the Chief Justice Of India.
7. Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution.
8. 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.
9. I hereby declare that I execute this Instrument on behalf of this state and that any reference in this Instrument to me or to the ruler of the state is to be construed as including to my heirs and successors.
Given under my hand this 26th day of OCTOBER nineteen hundred and forty-seven.
Maharajadhiraj of Jammu and Kashmir State.
I do hereby accept this Instrument of Accession. Dated this twenty seventh day of October, nineteen hundred and forty-seven.
(Mountbatten of Burma, Governor General of India).
India and Pakistan had both gained freedom and as many as 560 princely states were given a choice of freedom or to join either state. While most princes joined the Indian state because of obvious geographic/political reasons (being surrounded by India on all sides, very small size with respect to India, people’s sentiment etc.), the Maharaja of Kashmir tried to stall making a decision, because of a couple of reasons:
Firstly, he was geographically close to both India and Pakistan and was trying to sit out with hopes of striking a better deal.
Secondly, the state of Kashmir was one of the largest princely states in India (surpassed only by one or two other states like Hyderabad, which too did not give in easily). The rulers of these large states were not ready to easily give up their states, just because British had left. They tried to stake claims of Independent States.
There’s an anecdote that when Lord Mountbatten came to Kashmir on Jawaharlal Nehru’s insistence to persuade Maharaja to make a decision, he faked a stomach-ache and tried avoiding him. Read out 5 Biggest Blunders Of Nehru Which Costed India
Also, Congress had also been pushing for Independence of princely states during freedom movement and hence Nehru had been a vocal supporter of Sheikh Abdullah, who was the tallest leader of Kashmir and a socialist who had launched numerous agitations to overthrow the feudal rule of Maharaja.
The Maharaja might have waited longer but Pakistan lost its patience with him and sent tribal to Kashmir, in order to capture Kashmir. (The decisions to send tribal was taken as the armies of India and Pakistan had not been divided till then and were under British generals, who refused to oblige to Jinnah commands of sending troops to fight in Kashmir).
This came as a death blow to Maharaja’s dream of being an Independent ruler, and as a final resort decided to sign the Instrument of Accession to join India as India had refused to enter a foreign land.
The Instrument of Accession was later ratified by the state assembly under the leadership of Sheikh Abdullah who said in his famous speech that “Kashmir wished to be a socialist state like India implementing land reforms to help poor and could never join a feudal state like Pakistan just because of religious similarities of the majority communities.”