The Supreme Court of India is flooded with Petitions seeking to reinstate Article 370 in the State of Jammu and Kashmir. All are based on one single premise that the said Article was an integral part of the Instrument of Accession, the very legal basis of Jammu and Kashmir being an integral part of India. This paper argues that J&K is an integral part of India but the basis thereof is NOT Instrument of Accession. .

If Instrument of Accession had any validity – then Junagarh should be a part of Pakistan, as is now formally claimed by it. For the record, there is a validly executed Instrument of Accession signed by the Nawab of Junagarh duly accepted by the Constituent Assembly of Pakistan. So however absurd it may sound, does Junagarh legally belong to Pakistan?

Furthermore, if one were to go by only Instrument of Accession, then  Hyderabad should be an independent country. The Nizam of Hyderabad had not signed an Instrument of Accession with Dominion of India. He even filed a complaint with the Security Council. By cablegram dated 21 August 1948,585 Hyderabad informed the Security Council, under Article 35 (Z), that a grave dispute had arisen between Hyderabad and India, which, unless settled in accordance with international law and justice, was likely to endanger the maintenance of international peace and security. At the 357th meeting on 16 September 1948, the Security Council included the question in the agenda. The representative of Hyderabad” urged that the situation demanded immediate action by the Security Council, not only under Chapter VI of the Charter, but also under Articles 39 and 40.58s Later once Nizam was defeated he informed the Secretary-General that he had withdrawn the complaint. Notwithstanding this withdrawal, the Hyderabad question remains on the list of matters of which the Security Council is seized of even in 2021 and thus a potential time bomb for India.

So what is the answer to these vexed questions?The answer is very simple. The Republic of Bharat that is India, ought to recognize the Government in Exile formed by NetajiSubhas Chandra Bose on October 21, 1943, which had formally claimed sovereignty over whole of India as it stood then. This will mean save and except for parts of India that chose to secede by Will of People i.e. the present day State of Pakistan and Bangladesh – all other parts of India of 1943 are an integral part of present day  Republic of Bharat that is India. Whether they signed or did not sign Instrument of Accession is irrelevant.

Let us start by dumping  Imperial history taught to us to the dustbin, where it belongs and adopt history that completely autochthonous or one which has sprung from the native soil.This requires recognizing three important facts.

Fact number one is we did not become Independent on August 15, 1947. The so called Independence of India Act 1947 of the British Parliament did not provide for lapse of sovereignty of the British Crown over British India. Dominion of India that came into existence on August 15, 1947 was a State whose sovereign was the King of England. This was not how Independence was defined in the Objectives Resolution passed unanimously by the Constituent Assembly on 22^nd January 1947. Even the Government of India has failed to refute this proposition despite an order of the Division Bench of the Bombay High Court dated April 20, 2005 in WP 682 of 2005.

Fact number two as per the Judgement of a Constitution Bench of the Supreme Court of India -1962 AIR 445,1962 SCR Supl (3) 970, two states with different sovereigns are States alien to each other and that no act of the alien State is binding on the new Sovereign unless otherwise so accepted by her. Dominion of India whose sovereign was the British King and Republic of Bharat whose sovereign are People of Bharat; are therefore states alien to each other.Thus no act of Dominion of India is binding on Republic of Bharat that is India, unless it chooses to accept it. Three acts of Dominion of India cannot be accepted by Republic of Bharat.

1. Use of Instrument of Accession to determine whether or not that part of India is an integral part of Republic of Bharat.
2. The manner in which Sterling loans were liquidated causing huge financial loss to people of India, Pakistan and Bangladesh.
3. The Gandhi murder trial which treated a living Father of the Nation as a British subject in death. In SLP 8293 of 2018 in the Supreme Court of India, it was brought on record that there was an allegation that the British Crown was complicit in the murder of the Mahatma. This fact was not contested by the Amicus Curiae late Sr Advocate A. Saran. The State itself being accused of complicity could not  have conducted a fair trial. The complicity of the State is further buttressed by the fact that Dominion of India chose to hang NathuramGodse and NayaryanApte days before Constitution of Republic of Bharat came into force. While Godse confessed his crime, Apte had maintained till the end; that he was innocent. He ought to have been allowed to have his plea of innocence adjudicated by the Supreme Court of India but was denied this legal right. Without exaggeration, it must be said that hanging of NayaranDattatrayaApte by Dominion of India;was the first case of encounter killing in India. Shamefully this was done in the name of avenging murder of Mahatma Gandhi.

Fact three is legally the most important. In Constitutional law there is the principle of Autochthony. The goal of constitutional autochthony is to deliver an indigenous Constitution, the source of whose ‘authority’ can be located in the new state’s own soil. Autochthony cannot be achieved simply by drafting an original Constitution or verbally invoking We the People as the source of its authority. Autochthony does not so much concern the content of the Constitution as its pedigree: the chain of legal validity authorising it.In simple terms the Constituent Assembly – even while being a creation of the British Crown, could frame a Constitution acceptable to Republic of Bharat. However, for the Constitution to come into force there had to be repudiation of its Imperial roots.

According to widely supported view of legal philosopher, Hans Kelsen,  account, only an ‘unlawful’ or ‘revolutionary’ act could ensure an autochthonous Constitution by rending asunder all continuity with the imperial predecessor. It is said that Indian Constituent Assembly did not submit the Constitution for assent by Governor General of India, the representative of the British Crown, as was required under the Independence of India Act 1947 for his assent and thus did an unlawful act and repudiated its imperial roots.

If so that is good but not good enough. For the Constitution of Republic of Bharat to be truly  andcompletely autochthonous Constitution, it needs to be declared that the Constitution is the logical culmination of formation of Government of India by Netaji Bose on October 21, 1943 and explicitly recognizing its sovereignty.

Such a declaration would renderderecognize Section 6 of the Part II, Chapter I of the Government of India Act 1935 which states “A State shall be deemed to have acceded to the Federation if His Majesty has signed his acceptance of an Instrument of Accession executed by Ruler”. When the basic structure of the Constitution of Republic of Bharat does not recognize any “His Majesty” whether such Majesty signs or does not sign any Instrument of Accession, is irrelevant. In other words so far as the laws of Republic of Bharat are concerned – the Instrument of Accession is a nullity in law. Thus the present petitions before the Supreme Court of India have no legal basis for any challenge to revocation of Article 370 based on Instrument of Accession. This is not to suggest that people of Jammu and Kashmir have no right to protest. They have the very same right as any other people of India. However the basis of protest cannot be Instrument of Accession.

To conclude, the Modi Government by revoking the Article 370 has taken one big step towards derecognizing the legitimacy of Instrument of Accession. It should now take the next logical step of formally recognizing the sovereignty of the State brought into legal existence by Government in Exile formed by Subhash Chandra Bose in 1943.

That would be the real tribute to this Revolutionary Hero of our freedom struggle.

Dr Pankaj K Phadnis, Ph.D.

Member – Royal Historical Society, London
Founder President, Abhinav Bharat Congress