JAMMU
AND KASHMIR – WHY THE SPECIAL STATUS?
By KPC Rao., LLB., FCS.,
FICWA
Practising Company Secretary
kpcrao.india@gmail.com
The state of Jammu and Kashmir has
been affected by militancy and terrorism since decades. All this originated
when the Maharaja of Jammu and Kashmir refused to join either India or Pakistan
during partition. However, following a Pakistan-aided invasion by tribes, the
Maharaja signed a treaty, the instrument of accession, with India. This
agreement enabled the Maharaja to accede matters pertaining to defense, foreign
affairs and communication to India.
Jammu and Kashmir Special Status
(Article 370 of the Indian Constitution)
These circumstances led the
Constitution of India to treat the state of Jammu and Kashmir not on par with
other states of the country. The Article
370 of the Indian constitution recognizes the state’s special status and offers
special provisions.
The powers of the parliament
pertaining to the matters of the state are confined to:
1)
Matters laid down in the Union list and
the Concurrent list vested to the Central Government, such as defense, foreign
affairs and communication.
2)
Matters other than the subjects laid
down under the Union list and the Concurrent list, but only in concurrence with
the state government.
However, the Article 370 is of
transitional nature. The powers of the centre regarding matters other than
defense, foreign affairs and communication are not rigid. The provisions of the Constitution of India
can be extended by the President of India with the consensus of the State
Government.
Constitution
of Jammu and Kashmir
Art. 1 of The Constitution of Jammu
And Kashmir states that the State of Jammu and Kashmir is and shall be an
integral part of the Union of India. Art. 5 states that the executive and
legislative power of the State does not extend to matters those with respect to
which Parliament has power to make laws for the State under the provisions of
the Constitution of India. These provisions cannot be amended. The constitution
was adopted and enacted on 17/11/1956.
Applicability of the Constitution
of India to J&K
In exercise of the powers conferred
by clause (1) of article 370 of the Constitution, the President, with the
concurrence of the Government of the State of Jammu and Kashmir made the The
Constitution (Application to Jammu and Kashmir) Order, 1954 which came into
force on 14/5/1954.
The special status of the Jammu &
Kashmir can be better understood by reading a speech of Justice A.S. Anand, former
Supreme Court Judge delivered at Jaipur on the 12th of May, 1996. The article is
reproduced here under:
ACCESSION OF KASHMIR - HISTORICAL & LEGAL PERSPECTIVE[i]
By Dr Justice A S Anand
The Indian native States,
of which the State of Jammu and Kashmir was one such State, were those areas in
the Indian subcontinent which were for internal purposes outside the
administrative, legislative and judicial sphere of the British India Government.
Each such State had a hereditary ruler, who, subject to the paramountcy of the
British Crown, exercised, with some exception, unlimited power over the States
ruled by them. These States covered more than half the area of the Indian
subcontinent and were referred to as Indian India. The other part of India
comprising the provinces and certain other areas was referred to as British
India. The rulers of the native States were sovereign subject to the
paramountcy of the British Crown. On her assumption of direct rule in India in
1858, the Queen Empress through a proclamation declared to the native princes
of India that all treaties and engagements made with them by or under the
authority of the East India Company would be honoured and scrupulously
maintained. That the rights, dignity and honour of native princes would be
maintained.
The
aftermath of the Second World War and the assumption of power by a Labour
Ministry in England, brought about a change in the British policy towards
India. The Secretary of State for India, Lord Pethick Lawrence announced on
19-2-1946 the decision of the British Government to send a delegation of three
Cabinet Ministers to India to find a solution for the problem of India. The
delegation popularly known as "Cabinet Mission" arrived in India on
23-3-1946. On 25-5-1946 the Cabinet Mission issued a memorandum dated 12-5-1946
in regard to the native States. In this memorandum the Mission affirmed that on
the withdrawal of British Government from India, the rights of the States which
flowed from their relationship with the Crown would no longer be possible to exist
and the rights surrendered by the States to the paramount power would revert to
the rulers of those States when the two new dominions of India and Pakistan are
created. Paragraph 5 of the Memorandum read:
"When a new fully self-governing or
independent Government or Governments come into being in British India, His
Majesty's Government's influence with these Governments will not be such as to
enable them to carry out the obligations of paramountcy. Moreover, they cannot
contemplate that British troops would be retained in India for this purpose.
Thus, as a logical sequence and in view of the desires expressed to them on
behalf of the Indian States, His Majesty's Government will cease to exercise
the power of paramountcy. This means that the rights of the States which flow
from their relationship to the Crown will no longer exist and that all the
rights surrendered by the States to the paramount power will return to the
States. Political arrangements between the States on the one side and the
British Crown and British India on the other will thus be brought to an end.
The void will have to be filled either by 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
Cabinet Mission, however, however, advised the rulers of the native States to
enter into negotiations with the successor Government or Governments and evolve
a scheme of the precise form which their cooperation would take. On 20-2-1947,
the British Government made an announcement that independence would be granted
to British India. This was followed by another statement on 3-6-1947 setting
out its plan for the transfer of power. The plan inter alia provided that the
Muslim majority areas in British India should constitute the dominion of
Pakistan and the Hindu majority areas in British India the dominion of India.
In this plan the position of the princely States was dealt with in the
following manner:
"His Majesty's Government wish to
make it clear that the decisions announced above (about partition) relate only
to British India and that their policy towards Indian States contained in the
Cabinet Mission Memorandum of 12-5-1946, (Cmd. 6835) remains unchanged."
Thus,
it would be seen that on the withdrawal of paramountcy the princely States were
to become independent and the communal basis of division of British India was
not to apply ipso facto to the States. Neither the Cabinet Mission nor the
British Government made any positive suggestions regarding the future of the
princely States. The only thing that was made clear was that the sovereignty
was to revert to the rulers of these native States. Lord Mountbatten, as the
Crown representative addressed the Chamber of Princes on 25-7-1947. He advised
the princes and their representatives that although legally they had become
independent, they should accede to one or the other dominion, keeping in mind
the geographical contiguity of their States. (Keesing's Contemporary Archives,
9/16-8-1947, p. 8765). Lord Mountbatten told the Chamber of Princes that
accession of the State to either of the dominions was to be under the Cabinet
Mission Memorandum of 16-5-1947 which contemplated surrender to the dominion of
three subjects, namely, defence, external affairs and communications. Lord
Mountbatten caused to be circulated for discussion a Draft Instrument of
Accession which explicitly provided for surrender to the appropriate dominion
the power over the three specified subjects and stated that the dominion would
have no authority over the internal autonomy of the State. In the Indian
dominion the accession was to be made under Section 6 of the Government of
India Act, 1935 as adopted by Section 9 of the Indian Independence Act, 1947. A
State could accede to either dominion by executing an instrument of accession
signed by the ruler and accepted by the Governor-General of the dominion
concerned. The decision whether to accede or not and to which dominion were in
the exclusive right and discretion of the Ruler.
On
15-8-1947, India became independent. In accordance with the Cabinet Mission
plan of May 1946 following the creation of the dominions of India and Pakistan,
Kashmir bordering on both India and Pakistan had, like any other native State,
three alternatives, viz., to assert complete independence, to accede to
Pakistan or to accede to India. Power to take the decision vested exclusively
in the ruler according to the British Government's declared policy.
The
Quit India Movement in British India had its echo in Kashmir where the National
Conference had launched "Quit Kashmir Movement" with renewed vigour
from 28-6-1938 demanding that Maharaja Hari Singh should quit the State bag and
baggage and leave the people of the State to decide their own future by having
a responsible Government. It gained even more momentum in 1944. The Maharaja's
Government made efforts to crush the "Quit Kashmir Movement". Arrests
of the political leaders followed. On 15-8-1947 most of the leaders of the
National Conference and the Muslim Conference were in prison. The movement,
however, did not die. In the absence of British help which the Maharaja was
hitherto getting, the Maharaja found himself in a tight corner. "He
disliked the idea of becoming a part of India, which was being democratised or
of Pakistan which was a Muslim State. He thought of independence." (Brown,
W.N., The United States and
India and Pakistan, Cambridge 1953, p. 162). He was procrastinating and
wanted time to take his own decision. He therefore offered to sign a standstill
agreement with both India and Pakistan aimed at continuing the existing
relationship pending his final decision regarding the future of the State.
No
standstill agreement came to be concluded between Kashmir and India though the
Foreign Secretary to the Government of Pakistan on 15-8-1947 indicated to the
Maharaja that the Government of Pakistan was agreeable to have a standstill
agreement with the Government of Jammu and Kashmir. It was followed by the
visit of Private Secretary to Mr Jinnah to Srinagar and "His Highness was
told that he was an independent sovereign, that he alone had the power to give
accession; that he need consult nobody, that he should not care for the
National Conference or Sheikh Abdullah ... that he need not delegate any of his
powers to the people of the State and that Pakistan would not touch a hair of
his head or take away an iota of his power" if he acceded to Pakistan.
Mahajan, M.C., Accession of
Kashmir to India (The Inside Story), Sholapur, p. 2 In the second week of
August, however, there occured a Poonch revolt, against the authority of the
Maharaja. The State Government found that the revolt in Poonch was due to
infiltration from Pakistan but the charge was refuted by Pakistan Government.
On the other hand Pakistan Government charged the Government of Jammu and
Kashmir with attacking Muslim villages in the State. (White papers on Jammu
and Kashmir, New Delhi, 1948, Documents, Part 1, pp. 6-13). At the same
time there started an economic blockade from Pakistan. The Government of Pakistan
did not unequivocally deny the charge of economic blockade but pleaded
"special circumstances" and difficulties in sending supplies to the
State due to reluctance of the drivers of lorries to carry the supplies between
Rawalpindi and Kohala. While the Pakistan Government was pleading "special
circumstances", Dawn,
the Muslim League's official organ, wrote on 24-8-1947, "the time has come
to tell the Maharaja of Kashmir that he must make his choice and choose
Pakistan". Should Kashmir fail to join Pakistan, "the gravest
possible trouble would inevitably ensue". This threat alarmed the Maharaja
of Kashmir. Looking to the upsurge in the State, Sheikh Abdullah was released
on 29-9-1947. On 20-10-1947, a large column of several thousand tribesmen armed
with "bren guns, machine guns, mortars and flame throwers" attacked
the frontiers of the State of Jammu & Kashmir. "Srinagar trembled
before the danger of the tribesmen's invasion." It was alleged that the
tribesmen were being aided by Pakistan. Margaret Bourke White in her work Halfway to Freedom. p. 208,
wrote:
"Certainly these miniature ballistic
establishments (the small factories in the tribal areas) would hardly explain
the mortars, other heavy modern weapons and the two aeroplanes with which the
invaders were equipped. In Pakistan towns close to the border arms were handed
out before daylight to tribesmen directly from the front steps of Muslim League
Headquarters. This was not quite the same thing as though the invaders were
being armed directly by the Government of Pakistan. Still Pakistan is a nation
with one political party - the Muslim League."
The
tribal invasion caused grave devastation in the State. The indecision of
Maharaja Hari Singh gave place to deep-seated alarm and to a genuine concern
for his personal safety. On 25-10-1947, the Maharaja appointed Sheikh Abdullah
as the emergency administrator. The raiders were fast approaching Srinagar,
destroying and looting whatever came their way. The State was in imminent
peril. Sheikh Abdullah advised the Maharaja that if the State was to be saved,
he must accede to India and ask for immediate military help. This advice paved
the way for accession of Jammu & Kashmir to India. Maharaja also found no
other alternative and he addressed a letter to Lord Mountbatten, the Governor
General of India stating:
"I have to inform your Excellency
that a grave emergency has arisen in my State and request the immediate
assistance of your Government. As your Excellency is aware, the State of Jammu
and Kashmir has not acceded to either the dominion of India or Pakistan.
Geographically my State is contiguous with both of them. Besides, my State has
a common boundary with the Union of Soviet Socialist Republic and with China.
In their external relations the dominions of India and Pakistan cannot ignore
this fact. I wanted to take time to decide to which dominion I should accede or
whether it is not in the best interests of both the dominions and my State to
stand independent, of course with friendly relations with both."
After
giving an account of the tribal invasion, the letter continued:
"With the conditions obtaining at
present in my State and the great emergency of the situation as it exists, I
have no option but to ask for help from the Indian dominion. Naturally, they cannot
send the help asked for by me without my State acceding to the dominion of
India. I have accordingly decided to do so and I attach the Instrument of
Accession for acceptance by your Government."
Attached
to the letter was an Instrument of Accession duly signed by the ruler, Maharaja
Hari Singh. The operative part of the same read:
"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 omissions, additions, adaptations and
modifications as the Governor-General may by order specify be applicable to the
dominion of India;
And whereas the Government of India Act,
1935, as adopted 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 Indar Mahander
Rajrajeshwar Maharajadhiraj Shri Hari Singh Ji Jammu Kashmir Naresh Tatha Tibet
adi Deshadhipathi Ruler of Jammu and Kashmir in the exercise of my sovereignty
in and over my said State do hereby execute this my Instrument of Accession
...."[1]
Lord
Mountbatten, the Governor-General of India indicated his acceptance in the
following words:
"I do hereby accept this Instrument
of Accession.
Dated this twenty-seventh day of October
Ninteen hundred and forty-seven."[2]
This
Instrument of Accession was in no way different from that executed by some 500
other States. It was unconditional, voluntary and absolute. It was not subject
to any exceptions. It bound the State of Jammu and Kashmir and India together
legally and constitutionally. The execution of the Instrument of Accession by
the Maharaja and its acceptance by the Governor-General finally settled the
issue of accession of the State of Jammu and Kashmir.
After
accepting the Instrument of Accession, Lord Mountbatten wrote a personal DO letter to Maharaja Hari Singh in
reply to his letter which had accompanied the Instrument of Accession but was
not a part of the Instrument of Accession. In his letter Lord Mountbatten
wrote:
"... my Government have decided to
accept the accession of Kashmir State to the dominion of India. In consistence
with their policy that in the case of any State where the issue of accession
has been the subject of dispute, the question of accession should be decided in
accordance with the wishes of the people of the State, it is my Government's
wish that, as soon as law and order have been restored in Kashmir and its soil
cleared of the invader, the question of State's accession should be settled by
a reference to the people."
This
statement has figured as a controversial feature of Kashmir's accession to
India. Critics of the accession have steadfastly maintained that this
stipulation renders the accession conditional and that the question of States's
accession has to be settled by a reference to the people of the State. The
criticism, however, appears to be born out of ignorance of the correct legal
position.
The
only documents relevant to the accession were the Instrument of Accession and
the Indian Independence Act and both the constitutional documents did not
contemplate any conditions and therefore there was no question of the accession
being conditional. The finality which is statutory cannot be made contingent on
conditions imposed outside the powers of the statute. Pakistan, however, to
suit itself, refused to recognise the accession. It called the accession as an
act of "cowardly ruler" engineered with the 'aggressive' help of the
Indian Government. It charged that the accession had been obtained by force. Alan
Campbell Johnson in his treatise 'Mission with Mountbatten' writes:
"Indeed, the State's Ministry, under Patel's direction, went out of its
way to take no action which could be interpreted as forcing Kashmir's hand and
to give assurances that accession to Pakistan would not be taken amiss by
India." On his return to London, Lord Mountbatten narrated:
"Had
he (the Maharaja of Kashmir) acceded to Pakistan before August 14, the future
Government of India had allowed me to give His Highness an assurance that no
objection whatever would be raised by them."[3]
Moreover,
it cannot be denied that the Maharaja of Kashmir offered to accede to the
Indian dominion after the assaults and raids had started on the State from
across the borders. When at his meeting with Lord Mountbatten on 1-11-1947 Mr
Jinnah claimed that the accession of Kashmir to India was based on violence,
Lord Mountbatten replied, "the accession had indeed been brought about by
violence, but the violence came from tribesmen, for whom Pakistan, and not
India was responsible."
The
accession of the State of Jammu and Kashmir to India imposed an obligation on
the dominion of India to defend the State. To drive the invader out of the
State was the task which the dominion of India was asked to face as soon as it
finally accepted the Instrument of Accession. The requests and warnings of
Government of India to the Government of Pakistan to deny assistance and bases
to the invaders met with no response. India, therefore, decided to lodge a
complaint with the Security Council.
India
invoked Article 35 of the Charter of United Nations and complained to the
Security Council against Pakistan. Under Article 35, a member is entitled to
bring before the Security Council a 'situation' which imperils international
peace. The Government of India appealed to the Security Council, to ask the
Government of Pakistan:
(1) to prevent Pakistan
Government personnel, military and civil, participating in or assisting the
invasion of Jammu and Kashmir State;
(2) to call upon other
Pakistani nationals to desist from taking any part in the fighting in Jammu and
Kashmir State;
(3) to deny to the invaders:
a) accesses to and use of
its territory for operations against Kashmir;
b) military and other
supplies;
c) all kinds of aid that
might tend to prolong the present struggle.
(Security
Council Document No. S/628 dated 2-1-1948.)
On
15-1-1948, there was delivered to the Secretary General of the Security Council
a letter from Pakistan Government emphatically rejecting the Indian charges.
The letter made counter charges against India. Those amongst others included:
1) a persistent attempt to
undo the partition scheme;
2) a preplanned and
extensive campaign of genocide against the Muslims in East Punjab and Punjab
princely States;
3) the acquisition of
Kashmir's accession by fraud and violence.
(Security
Council Document No. S/646 dated 15-1-1948)
Throughout
the prolonged deliberations of the Council, India's spokesmen concentrated
their attention almost exclusively on the tribal invasion and the legal fact of
Kashmir's accession to India. This was, indeed, the limited issue referred to
the United Nations. Indian spokesman concluded his opening statement by
declaring:
"We have referred to the Security
Council a simple and straightforward issue ... the withdrawal and expulsion of
the raiders and the invaders from the soil of Kashmir and the immediate
stoppage of the fight are ... the first and the only tasks to which we have to
address ourselves."
(Security
Council Verbatim Report No. S/P.V. 227 dated 15-1-1948)
The Security Council, in
accepting India's complaint did indirectly recognise the accession of the State
of Jammu and Kashmir to India and indeed the legality of the accession was not
the point which India had brought before the Security Council. It is important
to note that the question ofaggression alone
fell within the competence of the Security Council. The Indian spokesman's
statement was followed by a brilliant address by Sir Mohammed Zafarullah Khan
of Pakistan who with his brilliant eloquence 'broadened' the issue and sought
to bring various disputes between India and Pakistan together. Frankly speaking
it was at this stage that the 'aggressor' and 'victim of agression' were put on
a par in the Security Council. The result of these deliberations at the floor
of the Security Council was the resolution dated 17-1-1948 which both India and
Pakistan accepted. In this resolution the Security Council called upon India
and Pakistan 'to immediately take all measures within their power (including
public appeals to their people) calculated to improve the situation and to
refrain from making any statements and from doing or causing to be done or
permitting any acts which might aggravate the situation...." (Security Council Document No. S/651 dated
17-1-1948.)
On
27-1-1948, India and Pakistan submitted draft proposals to the President of the
Security Council on the appropriate methods of solving the Kashmir dispute. It
was in this proposal that India agreed to the holding of a plebiscite in
Kashmir as the ultimate determinant of Kashmir's status. The Indian
representative observed on the floor of the Council:
"In
accepting the accession they (India) refused to take advantage of the immediate
peril in which the State found itself and informed the ruler that the accession
should finally be settled by plebiscite as soon as peace has been
restored."
It
is this statement which has been used to raise some doubts abut the finality of
the accession till the holding of plebiscite (self-determination) in the State
of Jammu & Kashmir.
The
accession of Kashmir was an issue arising out of the partition of India and the
negotiations preceding it. It does not appear to be within the competence of
the Security Council to reopen this question either at the instance of India or
of Pakistan. The question of 'aggression' alone falls within the competence of
the Security Council. Though that is the strict standpoint from the legal
angle, has the right of "self-determination" not been exercised by
the people of the State? It is well known in International Law that
"self-determination" can be achieved through different modes - the
basic idea being to ascertain the wishes of the people.
The
idea of convening a Constituent Assembly for Jammu and Kashmir State was
conceived during the "Quit Kashmir Movement" even before the
partition of India was contemplated and would have been implemented but for the
invasion of the State, after the partition of India, by the tribesmen from
across the Pakistan territory. When in 1948, the National Conference formed an
interim Government in the State under the proclamation of Sir Hari Singh dated
5-3-1948, it was expressly declared in paragraph 4 of the proclamation that,
"as soon as normal conditions were restored, steps would be taken to
convene a National Assembly based upon adult suffrage, to frame a Constitution
for the State". The convening of the Constituent Assembly in 1951 was,
thus, a natural outcome of the desire of the people of the State to have a
democratic Government responsible to the legislature, elected by the people.
The Constituent Assembly was invested with the authority to frame the
Constitution for the State and to decide its future.
"Today
is our day of destiny. A day which comes only once in the life of a nation ...
after centuries we have reached the harbour of our freedom which for the first
time in history will enable the people of Jammu & Kashmir, whose duly
elected representatives are gathered here, to shape the future of their country
after wise deliberation and mould their future organs of the Government. No
person and no power can stand between them and the fulfilment of this their
historic task..."
declared
Sheikh Mohammed Abdullah in his inaugural address to the Constituent Assembly
and added that the Assembly shall give "its reasoned conclusions regarding
accession". The dispute regarding Kashmir had come to a standstill at the
U.N.O. The Constituent Assembly in Kashmir, comprising of the representatives
of the people, elected on the basis of adult suffrage, in order to end the uncertainty
about the future of the State, after due deliberations end consideration, ratified the State's accession to India in 1954,
through a resolution passed by the Constituent Assembly without even a
single dissent.
Thus,
the Constituent Assembly of the Jammu & Kashmir State which was convened on
the basis of adult suffrage comprising of the representatives of the people of
the State and which represented the people of the entire State in unequivocal
terms ratified the State's accession to India,
through a well-considered resolution of the Constituent Assembly on 15-2-1954,
after great deal of debate, discussion and consideration. The debate was free
and frank. The people of the State of Jammu & Kashmir, thus, finally
settled the controversy regarding accession through the Constituent Assembly
comprising of their elected representatives. No one, even the worst critic, has
ever doubted the representative nature of the Constituent Assembly.
Self-determination is a one-time slot - the people of the State through their
elected representatives in the Constituent Assembly of the State took a final
decision and, therefore, the question of any further
"self-determination" or 'plebiscite' does not arise either legally or
morally. The 'wishes' of the people of J&K have been duly ascertained
through the duly elected Constituent Assembly. The States' accession to India,
therefore cannot any longer be questioned or doubted. The 1954 resolution of
the Constituent Assembly was followed by incorporation of Section 3 in the Constitution
of Jammu and Kashmir which reads: "The State of Jammu and Kashmir is and
shall be an integral part of the Union of India." This section is in
confirmation and reiteration of the wishes of the people of the State to be an
integral part of the Union of India. Besides, Section 3, declaring the State as
an integral part of India, has been put beyond the powers of the State
Legislature to amend by virtue of the mandate of Section 147 of the
Constitution. This provision was apparently incorporated in order to
"avoid any fissiparous tendencies raising their ugly heads in the
future".
Thus,
it follows that the accession of Jammu and Kashmir to the Union of India is
legal and constitutional which has been 'ratified' by the people of the State
also. It is therefore complete, final, legal and irrevocable. The sovereign
British Parliament vested the power to sign the Instrument of Accession in the
ruler in his own discretion under the Indian Independence Act, 1947 read with
the Government of India Act, 1935. Its acceptance was within the power of the
Governor-General. The Instrument of Accession of Jammu and Kashmir was signed
by the ruler and accepted by the Governor-General of India. As per the
assurance given to the Security Council, the question of accession has been
finally set at rest by the people of the State through their elected
representatives in 1954 and 1957. If the accession of Kashmir has to be
reopened, the same reopening would imply going back 46 years and reopening the
whole question of the independence of India and Pakistan, for it was the same
statute as provided for the accession of the princely States to either of the
dominions which also granted independence to India and Pakistan.
It
is interesting to note that the accession of Kashmir to India is quite
analogous to the annexation of Texas by the United States of America. When
Mexico separated from the Spanish Empire and set up as an independent Republic,
Texas was an integral part of the new State. Later, Texas revolted against the
Mexican authorities and established itself as an independent entity. The
independent status of Texas was recognised by the United States of America and
the principal powers of Europe. In 1844, the Government of Texas, threatened by
the menace of predatory incursions from Mexico, requested the Government of the
United States of America to annex the State. This proposal was sanctioned by
the American Congress in a joint resolution in March 1845. After this sanction,
America sent an army to defend the western frontiers of Texas. The Government
of Mexico strongly protested against and alleged violation of the rights of
Mexico and even the diplomatic intercourse between the two Governments was
suspended. The Mexican protest evoked the following reply from the Government
of the United States of America:
"The Government of United States did
not consider this joint resolution as a violation of any of the rights of
Mexico, or that it offered any just cause or offence to its Government; that
the Republic of Texas as an independent power, owing no allegiance to Mexico,
and constituting no part of her territory or rightful sovereignty and
jurisdiction."
In
Texas case it has never been contended that the annexation was not valid nor
was the action of the United States to send an army to defend the western
frontiers of Texas ever questioned. The case of accession of Kashmir stands at
a much stronger footing than that of Texas and the criticism regarding the
validity of the accession of Jammu and Kashmir to India is wholly meaningless
and unsustainable - the accession of the State of Jammu and Kashmir to India is
legal, final, binding and irrevocable.
[This
material is put online to further the educational goals of ‘Study
in Law’. This material may be used freely for educational and academic
purposes. It may not be used in any way for profit]
[1]
A.S. Anand : The Constitution of
Jammu & Kashmir - its Development and Comments-Second Edn. 1994 - (updated
reprint 1995) pp. 90-91
[2] (Campbell Johnson, Alan, Mission
with Mountbatten, p. 225)
[3] A.S. Anand : Constitution of
Jammu & Kashmir - updated reprint 1995 - p. 96
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