The State of Jammu & Kashmir vs. Union of India

Disclaimer: This is not a legal document, judgement or academic opinion on the legality of the accession of Kashmir to India but rather an attempt to bring together some facts and legal principles pertinent to the accession question and have the reader come to his or her own finding through further inquiry if necessary.

433px-Kashmir-Accession-Document-a

Was the accession of Kashmir to India legal?

Facts

On August 14 and 15, 1947, India and Pakistan gain independence. The rulers of the 565 princely states of British India have to decide to join either India or Pakistan. The Maharaja Hari Singh is the ruler of the princely state of Kashmir and does not make a decision as to which country to join.

On October 22, 1947, Pathan tribesmen from Pakistan invade Kashmir. The Maharaja of Kashmir appeals to India for help.

On October 26, 1947, the Maharaja flees Kashmir and arrives in Jammu. Also on or about October 26, 1947, the Maharaja meets with a representative of the Indian Prime Minister and signs the Instrument of Accession. On October 27, 1947, India troops arrive in Srinagar (Kashmir). Recent British sources indicate that the Indian PM’s representative did not reach Jammu until the morning of October 27, 1947 by which time Indian troops were already arriving in Srinagar.

Issues:

  1. Did the Maharaja act of a free mind when he signed the Accession?
  2. Did the surrounding circumstances influence the Maharaja’s decision?
  3. If so, did those circumstances influence the Maharaja’s decision-making ability in such a way that he cannot be said to have acted of a free mind?

The Law

I look at three legal principles relevant to the issues above.

The question of duress: duress is legally defined as a situation where one party exerts pressure unlawfully on another party to compel that party to do something that he or she would ordinarily not do. For duress to apply against India, India would have had to have done something unlawful, such as threaten to use violence against the Maharaja, his family or threaten to seize his property and hold it ransom. The use of suggestion or persuasion on the part of India does not qualify as duress.

The question of undue influence: undue influence occurs in relationships where one party exerts pressure on a weaker party so as to overpower the will of that weaker party and thereby induce an agreement. In this case, India would have had to do something to influence the Maharaja – including making military aid to him conditional upon his signing the accession instrument – which was short of actual force, but stronger than mere talk, resulting in the signing of the accession.

The question of unconscionability: an unconscionable transaction is an agreement that no right-minded would ever make and no fair-minded person would ever accept. In this case, there would have to be an inequality in the bargaining power between India and the Maharaja of Kashmir. If there was, then the Maharaja also would have had to have made an improvident bargain, that is he would have had to sign the accession (for military aid) without proper regard for the future.

If that were the case, there arises a legal presumption of unconscionability against India which India would have to rebut.

Written by Randeep Singh

Further Reading:

Ganguly, Sumit, “Conflict and Crisis in South and Southwest Asia”, in Michael E. Brown, ed., The International Dimensions of Internal Conflict, Cambridge, MA:  The MIT Press, 1996a, pp. 141-172.

Ganguly, Sumit, “Explaining the Kashmir Insurgency: Political Mobilization and Institutional Decay”, International Security, vol. 21, no. 2, Fall 1996b.

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