This is perhaps the myth that separatists use most frequently to justify their movement.  It will therefore be crucial to understand the argument, and examine all its aspects. I will try to give fair hearing to the opposing viewpoint as well.

Let us begin by parsing out the argument as it is usually stated. The commonly heard refrain is that “Jammu and Kashmir is disputed territory, and a plebiscite should be held there to determine the wishes of the people.”  This implies, and is substantiated by saying that the accession of J&K to India was conditional, and therefore not complete.  It needs to be completed/ratified by plebiscite.  Should the people decide in plebiscite that they wish to be independent, or with Pakistan, then the accession of J&K should be revoked.  Such is, for example, the position of A.G. Noorani in his paper Kashmir’s Accession to India is strictly “conditional”.

At the outset, let me concede that the argument has some weight.  It is not a completely baseless argument.  However, I will argue that the stronger evidence is in favor of India’s current position—that J&K’s accession to India is complete, and J&K is now an integral part of India, and that this process is irreversible.

At the time of independence, British India was divided on the basis of religious majority, with Muslim majority regions of British India going to Pakistan.  The princely states, on the other hand, were not divided. They were to go, each state as a whole, to either India or Pakistan.  The decision of where to go was to be made by the erstwhile ruler.  In the case of J&K, the ruler Maharaja Hari Singh made the decision to accede to India.  Was this accession valid, and final?

Four conditions were stated in the Independence of India act (which provided the legal framework for accession) for an accession to be valid.  I quote the simple version of these conditions from Noorani’s article:

Thus a valid accession required (1) The ruler’s signature of “an Instrument of Accession”, (2) The Instrument must contain the ruler’s obligations under clauses (1) (a) and (b) and (2). (3) The Instrument of Accession must be formally “accepted” by the Governor-General, and (4) Copies of the signed Instrument and the document which “signified his (the Governor-General’s) acceptance must be laid before the Dominion Legislature. […]

But in law (S. 6 of the act of 1935) its acceptance by the Governor-General was an indispensable part of the entire process. Mountbatten’s letter of acceptance is therefore, of decisive importance.

Let us now examine the aforementioned letter by Mountbatten.  I concur with Noorani that this letter is important.  The relevant portion of the letter is also reproduced by Noorani (as elsewhere):

Replying to Hari Singh’s letter of 26 October, forwarding the Instrument signed by him, Mountbatten wrote on 27 October: “Your Highness’ letter dated 26 October has been delivered to me by Mr. V. P. Menon. In the special circumstances mentioned by Your Highness my Government have decided to accept the accession of Kashmir state to the dominion of India. Consistently 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 her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people.” (White Paper on Jammu and Kashmir 1949, p. 46). This letter also recorded that the accession was a subject of “dispute”.

There are two issues before us.  Mountabatten’s statement that “as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people” has, as a precondtion, the withdrawal of all Pakistani forces from the portion of Kashmir under its occupation.  In other words, Mountbatten himself proposes the latter clause (“reference to the people”) conditionally.  The condition for this clause has not been satisfied, nor does it seem plausible that it will be satisfied in the foreseeable future.  Therefore, that statement itself becomes, for all practical purposes, vacuous.

However, in my opinion, the aspect that supercedes this practical difficulty is that the meaning of “by reference to the people” is sufficiently general to conclude that such a reference has happened already! Indeed, not once, but multiple times.   I provide these instances next.

FIRST “REFERENCE TO THE PEOPLE”

The people of J&K elected, as their representatives on this matter, the constituent assembly of the state of J&K.  This election happened in 1951, years after the accession.  Election vests in the representatives the power to represent the wishes of the people who have elected them.  Let us se what these elected representatives wrote, in 1951, in the preamble to the J&K constitution.

“WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR, having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves-[…]

This constitutes a clear, democratic “reference to the people” as desired by Mountbatten.

SECOND “REFERENCE TO THE PEOPLE”

After the beginning of the democratic process in the state, Sheikh Abdullah emerged as the overwhelming favorite of the people, starting in 1947 itself.   Abdullah did resort to a volte face on the issue of plebiscite once, but, in the words of Dasgupta (‘Jammu and Kashmir in the Indian State: The politics of autonomy’):

By 1972 Sheikh Abdullah had come to the conclusion that the demand for a plebiscite would lead nowhere. The possibility of using the Pakistan factor to gain leverage in negotiations with New Delhi faded after the Bangladesh Liberation War and the Shimla Agreement of 1972. Abdullah decided to bring the plebiscitary chapter of his politics to a close. He recognized that the state’s accession to the India, as ratified by the Jammu & Kashmir constituent assembly, was no longer subject to challenge and he sought a new understanding with the central government on the basis of at least partial restoration of the state’s autonomy. “Our dispute with [the] Government of India,” he said in March 1992,” is not about accession but it is about the quantum of autonomy”.

The outcome was the Delhi Agreement of November 1974. The accord recognized that Jammu & Kashmir was a “constituent unit of the Union of India”. Following the accord, Abdullah dissolved the Plebiscite Front, revived the National Conference and formed a government with Congress support.

Here we have the second reference to the people via their most popular leader.  Sheikh Abdullah dissolved the Plebiscite Front—a party he had started during this volte face days—and affirmed the finality of the state’s accession to India. 

THIRD “REFERENCE TO THE PEOPLE”

The third reference to the people comes when a popular leader explicitly states that J&K is a part of India, and sweeps the elections that follow shortly.  Again, from Dasgupta:

This paved the way for holding elections to the state assembly after a lapse of nine years. Recognizing the risk of losing its political base if it stayed out of the contest, the National Conference entered the fray this time. In a direct response to secessionist violence, the National Conference mobilized the people of Jammu & Kashmir as an integral part of India. “We are a part of India,” Farooq Abdullah emphasized. ”It is only with India that we will progress and our Kashmiriyat survive.”  In the 1996 state assembly elections, the National Conference secured 59 out of 87 seats, a clear two-thirds majority.

In conclusion, we can see that the “conditional clause” on the accession of J&K to India has already been satisfied multiple times.  A nation cannot keep revisiting statements and letters written decades ago.  From the Indian point of view, the matter of accession is taken, fairly, to be a settled issue.  The separatist viewpoint rests entirely on interpreting the phrase “by reference to the people” as “plebiscite.”

Here, Noorani makes his argument as follows:

That binding condition will cease to exist only on its fulfillment by “a reference to the people” of the state. Elections to the state assembly, rigged or not, don’t fulfill the condition, otherwise Mountbatten would have mentioned “elections to the Assembly—and not “reference to the people” of a disputed accession.

But Noorani’s argument is weak, highly subjective, and can be easily turned on its head.  If Mountbatten had meant plebiscite, he would have written “by plebiscite” instead of the far more general “by reference to the people”!

Editor’s Note

We have used India instead of Bharat in this article at the author’s request because the piece talks about legal documents, and so we have to use the terms as they were used in legal documents related to Kashmir’s accession.

(You can read other parts of this series – Part 1)

(Featured image credit: http://www.tehelka.com/2015/12/nehru-and-sheikh-abdullah-a-fraught-relationship/)

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