In a recent parliamentary debate in the Rajya Sabha, home minister Amit Shah said that Article 370 did not tie the state of Jammu and Kashmir to India. It was the ‘Instrument of Accession’, signed in 1947 two years before Article 370 was adopted, which made Kashmir a part of India.
However, it needs to be understood that Article 370, which allowed J&K a separate constitution and autonomy in internal administration, was itself a culmination of the Instrument of Accession.
British India primarily consisted of ‘British provinces’ and ‘Indian states’, ruled respectively by British governors and native princes. The Government of India Act, 1935, proposed to make an All-India Federation by embracing both British provinces and Indian states. However, it could not be realised because accession on the part of states was voluntary and rulers were apprehensive about issues of sovereignty and finances in a federal structure.
After the Second World War, members of the British Cabinet — Lawrence, Cripps and Alexander — visited India in 1946 and proposed to create a Union of India by embracing both British provinces and Indian states, divide British provinces in three groups on a communal basis and form an interim government. It further proposed to form a Constituent Assembly for drafting separate constitutions for province, groups of state and the Union.
An interim government led by Congress party leader Jawaharlal Nehru was formed and later, the Muslim League — which was demanding the creation of Pakistan — also joined it. The Constituent Assembly elected by provincial legislatures met in Delhi in December 1946 for drafting the Constitution of India.
Meanwhile on February 20, 1947, British Prime Minister Clement Attlee announced in Parliament ‘to effect the transference of power to responsible Indian hands by June 1948’ and sent Lord Mountbatten as the Viceroy to hasten the process.
Based on the Mountbatten Plan of June 3, 1947, the Indian Independence Bill was enacted which partitioned India in two dominions — India and Pakistan, and ended paramountcy of the British Crown over Indian states.
Indian states had no option of becoming independent and were asked to negotiate with the new dominions. Subsequently, Sardar Patel, the home minister of interim government, negotiated with princes and integrated more than 550 states in the Indian dominion.
However, J&K, a Muslim-dominated state ruled by Hindu Maharaja Hari Singh, did not join either dominion by August 15. VP Menon, the Political Reforms Commissioner, noted that the Maharaja was in dilemma. If he acceded to Pakistan, he apprehended the resentment of non-Muslims of Jammu and Ladakh, and of a considerable section of Muslims led by Sheikh Abdullah’s National Conference.
In these circumstances, the Maharaja toyed with the infeasible idea of an independent state. Amidst increasing pressure, J&K announced its decision to negotiate a Standstill Agreement, maintaining the existing administrative structure until new arrangements were made. Pakistan signed the Agreement, but India wanted to examine its implications.
Meanwhile, the state was attacked by Pakistani ‘tribesman’ and the Maharaja asked for the assistance of the Indian Army. Before receiving help, he signed the Instrument of Accession with India on October 26, 1947, which declared that the state would be acceding defence, communications and foreign affairs, while some other areas would be subject to the state’s concurrence.
Article 7 of the document signed by the Maharaja noted that ‘Nothing in this instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India.’
In May 1949, the rulers and chief ministers of all states agreed to accept the Constitution of India and resolved that separate constitutions for them was unnecessary.
However, representatives of J&K in the Constituent Assembly, led by Sheikh Abdullah, insisted on the principles of Instrument of Accession. Accordingly, Article 370 was incorporated into the Indian Constitution, which allowed the concurrence of state’s Constituent Assembly before applying other articles of the Constitution.
Thereafter drafting of a separate constitution for J&K began by its elected Constituent Assembly in 1951. Hence, it would be accurate to state that Article 370 was result of the Instrument of Accession.