The Kashmir Document

The Story behind the Instrument of Accession and its signing, by India’s first war correspondent, the late Sati Sahni, who was there.

The Instrument of Accession signed by Sir Hari Singh, Maharaja of Jammu & Kashmir State on 26 October 1947 is legally and constitutionally a valid document. Time and again this is questioned by many people and having been in Kashmir at that crucial time, I have observed and have also written about the events closely. Here are the facts;

In 1947 and before the partition of India, the constitutional relationship between British India and the Government of India Act of 1935 was on a federal basis. Under this act accession by states was to be voluntary while for provinces it was automatic. The ruler of a state had the power to sign the Instrument of Accession and the Paramount Power signified its acceptance. It was the Cabinet Mission Memorandum of 12 May 1946, announced by Lord Mountbatten, which was to be the basis of the policy of the government towards the states to decide on the partition. This document provided that the paramountcy of the British over the Indian States would lapse on 15 August 1947. “This void could be filled over either by the states entering into a federal relationship with the Successor Government or Governments

in British India, or failing this, entering into particular political arrangements with it or them.” The Indian Independence Act 1947 accepted this as its guiding and main principle. Except for a few states, all 562 states acceded either to India or Pakistan before 15 August 1947.

Sat Paul (Sati) Sahni, who was born in Rawalpindi in 1922,
participated in the Indian freedom struggle and later became
one of the few multimedia journalists of his generation.
He was a pioneer photojournalist, and worked for leading
international publications and news agencies. An 
experienced war correspondent, he covered all the four major
wars India was involved in, and has written many 
books – his last book was titled Nehru’s
Kashmir. He passed away in October 2010.

One such state was Jammu & Kashmir which failed to take a decision as Maharaja Hari Singh could not make up his mind. In June 1947 it was Lord Mountbatten who travelled to Srinagar and attempted to persuade the Maharaja to decide between one of the two dominions before 15 Aug 1947. Mahatma Gandhi too travelled to Srinagar two weeks before that date in another attempt to enable the Maharaja to make up his mind. I have been told that the Viceroy
had conveyed to the Maharaja that the Indian Government would not mind if it acceded to Pakistan but felt that the only trouble that could have been raised was by non – accession and this was the very course followed by the Maharaja. Barrister Mohammad Ali Jinnah, President of the Muslim League, subsequently the creator of Pakistan and later its Governor General, had clearly accepted the absolute right of the ruler of a state to decide on choosing one of the two dominions. In June, 1947 he had said “Constitutionally and legally, the states will be independent sovereign states on the termination of paramountcy and they will be free to decide for themselves to adopt any course they like. It is open to them to join the Hindustan or Pakistan Constituent Assembly or to remain independent. I am clearly of the opinion that the Cabinet Mission’s memorandum of 12 May ’46 does not in any way limit them in this choice.” In August ’47 he spoke at a Muslim League meeting about the rulers of the Indian states, saying, “They are free to join either of the two dominions or remain independent. The Muslim League recognises the right of each state to its own destiny.”

The Standstill Agreement

The Indian Independence Act 1947 had provided that a state could conclude a “standstill agreement” with either of the dominions or both. Taking advantage of that, the Prime Minister of Jammu & Kashmir at that time, M.C Mahajan, sent on 12 August ’47 two telegrams, one to Karachi and another to New Delhi, requesting for continuance of existing arrangements under this agreement. In reply the Indian Government desired an authorised representative to be deputed to visit New Delhi and finalise this agreement. Very strangely no one was deputed from Srinagar to go to Delhi.
However the Pakistan Government agreed telegraphically to the standstill agreement with the State of Jammu & Kashmir. The Indian government continued all services and supplies to the state even when there was no standstill
agreement signed or accepted; however, the Pakistan Government which had accepted the agreement, started to restrict the supply of essential commodities and in some cases to stop it completely in a bid to “strangulate the state”, creating untold hardships for the people. It must be remembered that the main road to the Kashmir valley was through what is now Pakistan. By starving the state for essential supplies, Pakistan had hoped to be able to coerce the Maharaja to accede to Pakistan. Along with this strangulation they started to make armed incursions all along the Jammu border. New Delhi and particularly Mr Nehru feared that the strategy of Pakistan was to inflict sporadic incursions till winters when a big attack would take place. This prophecy proved correct as by making small but determined forays into
the J&K state territory, Pakistan managed to disperse the limited state forces to penny packets so that at no one place would they be able to hold back a full frontal attack. The state was mostly starved of petrol which was most essential for transportation.

Pakistan’s Persuasion

Pakistan deftly moved on two counts, governmental and political, to “persuade” the Maharaja to accede to it. Apart from the Maharaja the other obstacle in their paths was Sheikh Abdullah. In early October, the Muslim League sent two emissaries to meet Sheikh Saheb and persuade him to align with Pakistan. The two were Sheikh Sadiq Hassan (President
of the Punjab Provincial Muslim League) and an intellectual, Dr Mohammad Din Taseer (who was the Principal of my alma mater, the Sri Pratap College in Srinagar, and so well known in Kashmir circles). There was a long meeting where they hoped to win over Sheikh Saheb– the then tallest leader of the largest political party of Jammu & Kashmir. Sheikh Abdullah stuck to his long-standing principle that unless the people of Jammu & Kashmir achieved selfrule, no decision could be taken by its people to join either of the two dominions. Obviously the two emissaries failed to persuade him, it was well known that Sheikh Saheb was threatened by Dr. Taseer that if required “other means could would be used”. They also “advised” him to visit Karachi and meet Mr Jinnah. Sheikh Saheb did not travel but instead sent his close
colleague Mr Ghulam Mohammad Sadiq to Lahore for these talks and discussions. Nothing much came about as Mr Sadiq could only meet the middle rung of the Muslim League, and not the deciding hierarchy. It was fortunate that he returned to Srinagar just in time (a day) before Pakistan launched an attack in the Uri area to test the defences. It was as if was all pre-determined and pre-meditated. Some say that there was a plan to detain Sheikh Saheb in Pakistan and forcibly get him to agree to what the Muslim League wanted of him. In October ’47, Pakistani Prime Minister Liaquat Ali Khan asked Col A S B Shah, Joint Secretary, Ministry of Foreign Affairs, Government of Pakistan, to travel to Srinagar
to meet with senior officials of the state. There he met with the state Prime Minister, Meher Chand Mahajan. It is known that Col Shah had brought with him a duly drawn up Instrument of Accession to be signed by the Maharaja. On
his failure to get that signature, he returned to Pakistan. Soon after, a full-scale invasion of Jammu & Kashmir was launched on 22 October ’47.

In the forenoon of 24 October, New Delhi received a request from the J&K government for armed assistance against an “organised invasion from Pakistan”. The next day the Defence committee considered this request and felt that arms and ammunition needed to be rushed to Srinagar for its defence immediately. It was pointed out at that meeting that it would lead to a full-scale war with Pakistan if such assistance was given before the Maharaja of Jammu & Kashmir had formally signed on the Instrument of Accession and acceded to the Union of India. The chiefs of the Indian Army (General R.M.M Lockhart), Navy (Rear Adm J T S Hall) and Air Force (Air Marshall T W Elmhirst, all British officers) were given directions “to examine and prepare plans for sending troops to Kashmir by air and road in case it became necessary to stop the incursion”. Around the same time V P Menon of the State Ministry was flown to Srinagar to take an on-the-spot assessment, meet the Prime Minster and the Maharaja of the state, and return the same evening to New
Delhi to report on the situation. On Mr Menon’s advice the Maharaja and his family left Srinagar for Jammu that same night – 25 October ’47. Mr Menon and Mr Mahajan flew to New Delhi at dawn on 26 October ’47 and went straight to the Defence Committee meeting where he reported the critical ground situation. Apparently, Mr Mahajan met the PM Mr Nehru and Sardar Patel immediately upon arrival. Mr Mahajan requested immediate assistance on any terms as the town of Srinagar had to be saved at any cost. Seeing Mr Nehru’s hesitation (ostensibly needing time to arrange
for the army’s airlift) Mr Mahajan offered to get the Instrument of Accession signed immediately, however on condition that the airlift of troops must begin that day itself. Upon instructions from the Maharaja himself it was conveyed to Mr Nehru that Mr Mahajan was to decide on the spot depending on whether Mr Nehru was willing or not to do the needful.
In case Mr Nehru refused, Mr Mahajan was to go straight to Pakistan and to Mr Jinnah to negotiate. Sardar Patel and Sheik Saheb (who was in the next room) prevailed and the die was seemingly cast. Sardar Baldev Singh, the then Indian defence minister, informed Mr Mahajan that a decision had been taken to send two companies of Indian troops to Srinagar immediately. Later that evening Mr Menon and Mr Mahajan were asked to fly back to Jammu immediately
to get the Instrument of Accession and some supplementary documents signed from the Maharaja. In Jammu the Maharaja gave a letter to Mr Menon addressed to Governor General Lord Mountbatten asking for urgent armed
assistance from the Indian Government. This letter along with the Instrument of Accession was brought back immediately to Delhi by Mr Menon where it was presented to the Defence Committee by Sardar Patel. On 27 October,
the actual airlift of the Indian troops began for the defence of Kashmir. The decision of the Maharaja to accede to India and for New Delhi to send in troops for the defence of Kashmir had the full support of Sheikh Abdullah, the leader
of the largest political party of the state.

No Plebiscite Condition
Pakistan and some others have been alleging that the Accession was conditional on holding of a plebiscite. They also said that the Maharaja’s accession was a violation of the standstill agreement with Pakistan and that it was secured under force and by fraud. On 30 October ’47 Pakistan issued a statement that the state’s accession was “based on fraud and violence and as such cannot be recognised”. The facts are as follows: The standstill agreement (under the India Independence Act of 1947) was an interim arrangement which put no curbs on the legal and constitutional rights of the Maharaja. Thus there was no question of barring the Maharaja from signing the Instrument of Accession, as it automatically revoked the standstill agreement. In any case, Pakistan had failed to abide and discharge her obligations of the standstill agreement and thus lost the moral authority. Thus, under the Government of India Act 1935, the Memorandum of the Cabinet Mission of 12 May 1946 and the Indian Independence Act 1947, the Instrument of Accession once signed by the competent authority (the ruler of the state), and accepted by the designated authority, completed the accession. Conditional accession was not even envisaged anywhere. The signing of the Instrument of Accession is neither revocable nor can it be annulled. There was nothing in the Instrument itself to force the Indian Government to a plebiscite on confirming this accession. Legally the offer of accession by the Maharaja and its acceptance by the Dominion of India completed the Instrument of Accession. It created a union within a federation of states. It is the same for all federations including the United States of America.

Allegations Refuted

The allegation of having secured the accession by use of force and fraud was laid to rest by the three British chiefs of the armed forces when they recorded that the decision to send the Indian troops was only taken after the Instrument of Accession was received at the Defence Committee in Delhi. This “statement of events” was later handed over to Mr Jinnah by Lord Mountbatten when the accession was questioned by him. The news of the state’s accession to India reached Mr Jinnah (Governor General of Pakistan), who ordered the acting Commander in Chief of the Pakistan Army, General Sir Douglas Gracy, to send two Brigades of the Pakistan army to Jammu & Kashmir. General Gracy reportedly refused to move any troops till he received approval from Supreme Commander Field Marshal Sir Claude Auchinleck. The Field Marshal flew to Lahore on 28 October and informed Mr Jinnah that “in the event of Pakistani troops entering Kashmir, which was now legally a part of India, every British officer (and there was a large number) would automatically and immediately be withdrawn. Mr Jinnah immediately withdrew the order, thus accepting the legality of the Accession to India.

It is important to point out that the legality of Accession was not questioned at any time by the UN Security Council and the UN Commission for India & Pakistan, or any of its representatives or mediators like Dr Graham,
Sir Owen, General McNoughton and Mr Jarring. If the Accession is considered to be illegal, incomplete or invalid, then I am afraid that all that flows out of the Government of India Act 1935, Memorandum of the Cabinet Mission and the Indian Independence Act 1947 would be illegal, unconstitutional and invalid. This would also include the creation of two
separate dominions of India and Pakistan, The Constitutions of India and Pakistan, the State of Jammu & Kashmir, and all actions of the Governments of India and Pakistan since they were created under this Act of 1935. Matters such as the ceasefire line of 1949, the Tashkent agreement of 1966 and the Simla agreement of 1972 would also then be unconstitutional as they all stem from those acts.