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The Accession
When the Maharaja of Kashmir executed the Instrument of Accession to India and Lord Mountbatten, the then Governor General of India, accepted the Instrument, the whole of Jammu and Kashmir became an integral part of India, legally and constitutionally.
On the eve of independence there were more than 560 Princely States which were semi-independent and which were protected by the United Kingdom by the doctrine of paramountcy. This meant that the King of England was the paramount lord as far as these Princes were concerned and in return for the fealty pledged by them, the King Emperor gave them protection. When the Indian Independence Act was passed by the British Parliament, British power was transferred to the people of India as far as British India was concerned and Britain put an end to paramountcy, leaving it to the Princes to arrive at such arrangements as they thought proper with the Governments of India and Pakistan. It is necessary to record all this in some detail to refute Pakistan's allegation that Kashmir's accession to India by the Maharaja was not legal. At the time of Partition, Pakistan was a new State which came into existence, but the present Government of India was the successor government to the Government of the United Kingdom. It was provided that it was open to every princely State to accede either to India or to Pakistan. The law did not provide that the Instrument of Accession could be conditional. Once the accession was accepted (as it was done in Kashmir by the Governor General of India Lord Mountbatten), the particular Princely State became an integral part of one or the other of the two Dominions.
Significantly, there was no provision for consulting the people of the Princely state concerned. Nor was there any provision that the accession had to be ratified by ascertaining the wishes of the people of the acceding State. Several Princely States acceded under this law to India or Pakistan. It was never suggested that these accessions were, in any way, incomplete or require some action to be taken before they became conclusive. The partition of India was confined to British India alone and in drawing the lines of the frontier, the question of Muslim majority provinces on North West and Eastern India was taken into consideration only with regard to British India. There was no question whatsoever of taking into account the religious complexion of the population of any Princely States. Whether a Princely State should accede to India or Pakistan was left to the choice of the ruler of that State Pakistan's proposition that the State of Jammu and Kashmir, by reason of its large Muslim majority and of the fact that Pakistan came into existence as a Muslim State, should naturally form part of Pakistan, is not tenable. This is wholly wrong in view of the legal and constitutional position.
Author:M.L.Kotru
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