Historical Perspective on Accession

Saraf analyses Omar Abdullah's recent statement in light of Kashmir's political history

(Mr. Bhushan Lal Saraf, 65, was born in Batapora, Shopian. He finished his schooling from the Government Higher Secondary School in Shopian, and completed his professional degrees in B.Sc. (Hons.), Diploma L.L.B., and KCS (Judicial) from the University of Jammu and Kashmir, and from the University of Lucknow. Mr. Saraf retired as a Principal District & Sessions Judge. He is presently an Honorary Member of the J&K State Consumer Commission. He has authored a book, "New Lexicon for the Kashmiris," published by UPS in New Delhi. In his leisure time, Judge Saraf, provides complimentary legal counselling, campaigns for legal awareness, and enjoys reading and writing.)


Merger or Accession ?

Omar Abdullah’s speech in the Legislative Assembly, made few days back, has created a controversy. At this juncture, he could have done well without it. He has said that Kashmir has only acceded to and not merged with India. We don’t know what crossed his mind when he made the distinction, whereas materially there is none. He made another point that it makes no sense in repeatedly saying, “Kashmir is an integral part of India” because no one says so about any other State of India. The knowledgeable tell us that this is beleaguered C M’s attempt to regain some of the lost political ground in the Valley. Merger or Accession –the fact is that relationship of Kashmir with India is, admittedly, of a unique nature brought about in unique circumstances.

Omar’s speech should make us look afresh on the circumstances preceding and surrounding the fact of the union of Kashmir with India.

Traveling some distance with the Muslim Conference, Sheikh Muhammad Abdullah came to realize that his struggle against the autocratic rule of Maharaja would not be all inclusive and purposeful unless every section of the J&K population was taken on board. His interaction with the nationalist leadership of British India, in Lahore, comprising Jawaharlal Nehru, Dr Saifudin Kichloo and Abdul Gaffar Khan, widened his vision about the political need of the hour. Writing in his autobiography Aatish-e-Chinar about his meeting with Jawaharlal Nehru and other nationalist leaders Sheikh Abdullah says, “Soon after meeting the nationalist leaders I felt the deliverance of the Kashmiris lies in coming out of the narrow confines and aligning with the national mainstream ….”( P,.210). He further writes that in order to garner support of the Indian Nationalist forces it was imperative to change the name and Constitution of Muslim Conference. Sheikh Abdullah found a good deal of commonality between the Indian Nationalists, who were fighting the British rule, and his struggle against the autocratic Maharaja.

Accordingly, on 28th June, 1938, the Working Committee of the Muslim Conference, on his resolution, changed the name of the Muslim Conference to ‘National Conference ‘, with a view to enable the Hindus and Sikhs to join the struggle against the autocratic rule. Therefore, the bedrock of Indo- Kashmir association is the vision that developed during the freedom struggles of the two. It was of a socio-political set-up which would provide for a safe, tolerant and egalitarian space to every section of the populace, and respect their religious beliefs. It, thus, became an idea central to the both. Only history will tell whether this association did strengthen the shared values or become a festering sore--a flashpoint for the bloody wars in the subcontinent. Did the parties hold on to the promises made?

Kashmir’s association with India was on some conditions. The Maharaja, while acceding to India had, in terms of Clauses 7 & 8 of the Instrument of Accession, reserved a right not to commit himself to accept Constitution of India in toto or fetter his discretion to enter into arrangement with Govt. of India, and his sovereignty would continue as provided under this Instrument. This was indicative of a special position Kashmir would have within the Indian Union. Delhi Agreement of 1952 reiterated this position and Article 2 of the Constitution of India permitted it. At the time of accession J & K was governed by the Jammu and Kashmir Constitution Act of 1939, with Delhi’s jurisdiction extending only to External Affairs, Defence and Communication. The Maharaja wanted the continuation of the Act while the popular leaders differed. The Constituent Assembly was made aware that the State’s association with India would be on terms of accession, acknowledging this special position and the problems with which the government of J&K was, then, faced. Constituent Assembly adopted Article 306A which became Article 370 in the final Constitution. Thus a special provision for constitutional relationship of the State with the Union came into the existence. The geographic position, difference in the religions of the Ruler and the Ruled and the demographic character of the State dictated the course. Apart from that popular support was needed for the accession which came through Sheikh Abdullah. For some the conditions around the accession are for India and Kashmir to settle. Others see international dimension to it and think that fulfillment of the conditions is a sine quo non for Kashmir’s association with India to survive. This is a big subject in itself. Much can be said on both sides. Let us leave it for other time and the place to deliberate upon.

India is a union of States. The Indian Society is multi - cultural and multi- lingual. The language and ethnicity are the broad parameters on which the States, within the Indian Union, came to be reorganized. The Constitution of India is federal in nature where the States can exercise legislative and executive powers independent of Union Government, subject, however, to some limitations. Jammu & Kashmir is a constituent unit of Union of India as described in Article 1 of Constitution of India and Section 3 of Constitution of J&K . We must remember that all the Princely States that acceded to India or Pakistan signed the instruments of accession before joining either dominion. However, most of the Princely States got merged with the British India Provinces following the reorganisation of the States, post accession. Nearer home, Patiala and Kapoorthala; Jaipur and Alwar in Rajasthan are the examples. The State of J&K retained its geographical boundaries as distinct identity, except those occupied by Pakistan. While acceding to India, it did not merge itself with any pre- existing Province in British India. The State retained its distinct identity as a separate entity , with a separate Constitution and flag .In any case the relationship of Kashmir with India is indestructible. There is no need to sharpen the edge of competitive politics by quibbling over the meaning of words “Accession”, “Merger” or “Union” .

One cannot be sure whether Omar Abdullah had this in mind when he made the speech because most people don’t credit him with the knowledge of turbulent Kashmir. But when seen in the aforementioned background his statement in the Assembly, to this extent, is a narration of the fact. Regarding his other part of the speech that there should be no repeating of , “ Kashmir is an integral part of India” he must go through Sec 3 of the State Constitution , which boldly mentions this fact. Mr CM, there is no separate constitution for any other State in the country.

The young CM would do well to recall what his illustrious grandfather told the Press in Delhi in Sept 1948., “We have burnt our boats. There is no place in Kashmir for a theocratic state. Kashmir will never make a plaything of India’s honour.” (Source - Kashmir: Behind the Vale—M.J Akbar). Omar Abdullah must realize that a word said in prevailing surcharged atmosphere may cause more harm than the intended good. Yes, Kashmir’s relationship with India needs to be reassessed and some promises made redeemed. But broad parameters of the values that, initially, defined the relationship must remain same.