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Need for informed debate cross on accession of J&K to India

By Venkatesh Nayak*
26-27 October, 2016 mark the commencement of the 70th anniversary of the accession of Jammu and Kashmir (J&K) to India. On account of the troubled times that J&K is passing through since July, there is little space for celebrating this event, but a sober commemoration of this historic moment, may not be out of place. The Instrument of Accession (IoA) signed by Maharaja Hari Singh has become the object of a never-ending controversy, unlike accession instruments signed by other princely States.
Does it really exist or not? Yes, the J&K IoA exists for real, safe and well preserved in the collection of the National Archives. I have elected to place in the public domain, a copy of the J&K IoA obtained legitimately from the National Archives, for the purpose of facilitating informed debate amongst those interested in the subject. I have also placed in the public domain copies of the IoAs of Mysore, Manipur, Tehri Garhwal and Udaipur obtained from the National Archives so that readers may compare them with the J&K IoA for ascertaining its contents. These documents may be accessed on The Wire (all docs) and NDTV (J&K IoA only).
No, the J&K IoA was not signed by the Late Shaikh Muhammad Abdullah, and for a very legitimate reason. The J&K media reported an RTI intervention on this issue recently. The Rulers of Princely States signed IoAs with the Dominion of India in 1947 under The India (Provisional Constitution) Order, 1947 read with the Indian Independence Act, 1947 and The Government of India Act, 1935. Under the relevant provisions of these laws, only the Ruler of a Princely State could sign an IoA. There was no provision for delegation of this authority to any other person. So in my humble opinion, even if he wanted to so do, Maharaja Hari Singh could not have delegated his authority to anybody else as has been reported in some publications on this subject. An IoA would be invalid if anybody other than the Ruler of the concerned State were to sign it.
Is the J&K IoA held by the National Archives, a genuine document? What can we make of an instance of overwriting in this IoA (some writers have used this argument to refute the genuineness of the document)? Is the J&K IoA a unique document as compared to IoAs signed by other Rules of Princely States? How was the then Constituent Assembly also acting as the Legislature for the Dominion of India informed about J&K’s accession, in 1947?
I have tried to clarify these matters in an article. The Wire has published my article and the IoAs and other historical records that I accessed recently from the National Archives and Parliament’s Library. I invite readers to read the article on The Wire at: http://thewire.in/76079/public-first-time-jammu-kashmirs-instrument-accession-india/. NDTV did a breaking news story on this subject in the evening of the 26th of October. Their news report may be accessed at: http://www.ndtv.com/india-news/jammu-and-kashmirs-document-of-accession-in-public-domain-at-last-1494726
The limited objective of my article is to place legitimately obtained true-to-the original images of the J&K IoA along with other comparable and supporting documents, in order to encourage informed debate across the country and elsewhere on this subject.

The RTI Interventions

As always, this process of uncovering the J&K IoA began with an RTI application in April 2016. In 1947, the newly established Ministry of States led the efforts to integrate the princely States into India, under the leadership of the then Deputy Prime Minister, Sardar Vallabhbhai Patel and the stewardship of its Secretary, Shri V. P. Menon. Today it is subsumed under the Union Ministry of Home Affairs (MHA). So I filed an RTI application with the MHA in April, 2016.
After waiting for a reply for more than a month, I filed a first appeal. Then MHA transferred the appeal to the National Archives in a cryptic letter. The National Archives replied promptly but cited a decision of the Central Information Commission in its favour to refuse access to the archived records under the RTI Act. However, they invited me to access the documents under the Public Records Act, 1993. This decision is hugely problematic and runs contrary to the principle recognised by High Courts and larger benches of the CIC about access to copies of official records under the RTI Act and other laws. I will write about this issue later.
However, obtaining access to the IoA was more important, so the challenge to the stand taken by the National Archives was postponed. In September, they granted me access to the J&K IoA and four others. Under the terms of granting copies of archived records, I can only publish copies of these IoAs but cannot transfer them to others.
In between, after discovering in The India (Provisional Constitution) Order, 1947 that the IoAs were required to be tabled in the then Constituent Assembly-Legislative (CA-L), when it functioned as the Dominion Legislature, I filed a second RTI application with the Secretariat of the Lok Sabha (1st attachment). I have not received any reply from them till date. Later I visited the Parliament Library to access the record of debates of the CA-L of the date on which the IoAs were tabled in the House. The library staff told me that papers laid on the table of CA-L were not available with them.
Indeed, the issue of the missing of papers laid before the CA-L was raised in 1947 itself. The Government requested members of the CA-L not to pick up the papers laid before the House for personal use, but inspect them and allow for them to be sent to the library. Thankfully, the IoAs do not seem to have gone missing. They are preserved in the National Archives. The CA-L debates testify to the formal announcement that the Government made in November 1947, about the accession of J&K as well as more than a hundred other princely States to the Dominion of India.
I am grateful to Shri Husain Dalwai MP (Rajya Sabha) and members of his secretarial staff for helping me access Parliament’s library in order to get copies of the relevant debates of the CA-L. I am also grateful to the staff of National Archives for facilitating easy access to the IoAs and for providing copies without undue delay.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative New Delhi

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