Abhijit Bhattacharyya
Maharaja Hari Singh legally signed the Instrument of Accession on October 26, 1947 as the "Ruler of Jammu and Kashmir State, in the exercise of my sovereignty in and over my said State" (as empowered vide the Jammu and Kashmir Constitution Act of 1939 also) and declared,"I accede to the Dominion of India". It was legally accepted the next day, October 27, 1947, by the governor-general of India.
Subsequently, the constituent assembly of Jammu and Kashmir ratified the accession to India and a mutual decision was arrived at by the Delhi agreement of 1952 about the future relationship between Srinagar and New Delhi. Still later, the territory of Jammu and Kashmir was defined by the Indian Constitution (Seventh Amendment) Act 1956 as "The territory which immediately before the commencement of this Constitution..." [as the Constitution of India came into effect from January 26, 1950, whereas Jammu and Kashmir had already acceded to India on October 26, 1947] "...were comprised in the Indian State of Jammu and Kashmir". Thus it was made clear that the Jammu and Kashmir territory includes the area of the State at present held by Pakistan and which is not 'de facto' under India's control. The United Nations security council too recognized the sovereignty of the government of Jammu and Kashmir over the whole area, which includes the area in the hands of the tribesmen of Pakistan.
In this context it would be important to recall that the Constitution defines the "territory" of India in Article 1 by saying that "(1) India, that is Bharat, shall be a Union of States" and that "(3) The territory of India shall comprise - (a) the territories of the States; (b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired". Thus when several "territories" were "acquired" in accordance with the provisions of the Constitution, they became an integral part of "Bharat... Union of States".
A unique character of the Constitution of India is that whereas "territories" can be "acquired", there is absolutely no provision whatsoever, or any scope, for any "cessation" or "ceding" of "territory" to any foreign State. This is important to note because in spite of this, India did cede its own territories several times in the past.
Going back to the point of "acquire", Article 2 empowers thus: "Parliament may by law admit into the Union, or establish, new States...". Again Article 3 gives Parliament the power pertaining to the "formation of new States and alteration of areas, boundaries or names of existing States..." Thus Parliament is the supreme body so far as delineating the shape, size, length and breadth of territories or the acquisition of territories are concerned. In brief, therefore, the Constitution clearly shows that foreign territories, that after acquisition become part of the territory of India under Article 1 (3)(c), can, by law, be admitted into the Union under Article 2 and that such territories may also be assimilated under Article 3 (a) or (b).
Coming back to the power of the State under the Constitution of India to cede territory, it can nevertheless be argued that since "cession", which means transfer of sovereignty over a territory from one State to another, is an act of sovereignty; there cannot be any impediment to this act of a sovereign State. Unfortunately, this argument would not pass the scrutiny of law in India. It will also not pass the test in other countries because it may be subject to limitation by the constitutional law of the land and also subject to the preservation of the rights of the citizens and the interest of the State.
One may here clarify that so far as clause (c) of Article 3 - "diminish the area of any State" - is concerned, this is restricted to inter-State adjustments and does not apply to cession of territory to, or in favour of, a foreign State. Hence any agreement or treaty with any foreign State involving a cession of a part of India's territory in favour of that foreign State cannot be implemented by passing a law under this Article. This can be done only by an amendment of the Constitution (as it happened when India had to cede part of its territory known as Berubari Union, West Bengal, to Pakistan). However, a settlement of boundary dispute cannot be held to be a cession of territory ( Maganbhai Ishwarbhai Patel versus Union Of India, January, 1969).
The above legal position would make it clear that whereas no territory of Jammu and Kashmir, being an integral part of India, can ever be ceded to a foreign nation, the Sino-Indian border problem would be a different issue altogether, given that it is to be seen in the light of "settlement of boundary dispute" and thus "giveand take" would be in order.
Unfortunately, while the settlement of the Sino-Indian border dispute is still in limbo, the leadership of India, wittingly or unwittingly, has infringed upon clearly-defined constitutional provisions by ceding territory at least twice in the past - in 1966 at Tashkent and again in 1972 at Shimla.
In the agreement at Tashkent, following the 1965 India-Pakistan war, India gave back the Haji Pir pass (picture) and the territory around it to Pakistan. There could not have been a more blatant violation of the Constitution of India. Ever since October 26, 1947, the whole territory of Jammu and Kashmir has been an integral part of India. This is so commonly known that the government of India, to this day, does not allow the distortion of the map of Jammu and Kashmir in any form. Clearly, the Haji Pir pass also fell under the territory of Jammu and Kashmir. Yet, it was "returned" to Pakistan, which is the illegal occupant of one-third of Jammu and Kashmir. By returning the Haji Pir pass to an illegal occupant of Indian territory, the government of India not only unwittingly lent support to the illegal occupation by Pakistan, but also considerably weakened its own professed stand on Kashmir, thereby giving a signal to the world about its lack of seriousness about considering Jammu and Kashmir as an integral part of India.
Legally, too, the ceding of the Haji Pir pass stands out as a gross violation of the Indian Constitution by the Indian government. One is not sure whether this happened owing to collective ignorance about the provisions of the Constitution or because India tried to be seen as a good body in the international arena.
After the damage of 1966 one would have thought that India would do nothing that led to the erosion of its sovereignty. Regrettably, in 1972, once again few portions of India's territory of Jammu and Kashmir were "returned" to Pakistan. Given this background, when one hears the argument that Pakistan-occupied Kashmir belongs to India and that India would get it back by all means, it makes for jarring acoustics. When successive rulers of India have shown shocking lack of knowledge or understanding of the Constitution and ended up violating the fundamental provisions that guarantee the territorial integrity of the nation, do the shrill slogans make any sense?
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