By Kyrsoibor Pyrtuh
Now that the Courts, especially the Supreme Court and High Court hearings are being streamed live via multiple you tube channels, the citizens of the Nation/States have easy access to various cases which are linked to their interests and on important matters like the abrogation of Article 370 of the Constitution which is now before the Constitution Bench headed by the Chief Justice D.Y Chandrachud.
This important constitutional hearing which pertains to the Special Status of Jammu & Kashmir has generated much debate and perhaps will have an impact or bearing on other regions which have similar political agreements with the Dominion of India between 1947 and 1948. One such region is the Hynῆiewtrep region which comprised of twenty-five Native States back then.
The arguments both for and against the abrogation of Article 370 has now entered the 14th day and is nearing completion and the Constitution Bench will finally give its verdict after discerning not just the arguments, but the legal, historical and constitutional facts. Interestingly, on Day 10 of the hearings, Chief Justice Chandrachud piqued the Solicitor General to provide the Bench with the list of Native States which did not sign the Instrument of Merger with the Dominion of India. At the same time the Chief Justice wanted to be convinced whether the execution of the Instrument of Merger was not quintessential to acceptance of final sovereignty of India.
As the matter before the Constitution Bench is specific to Jammu & Kashmir, one is not privy to the issues related to abrogation of Article 370 and is also not entitled to comment on the matter pending the final verdict. However, taking a cue from the point raised by the Chief Justice on other Native States which did not sign the merger agreements, therefore it is not out of place to revisit our own regional history which resembles the political position of Kashmir.
On August 15, 1947, when India attained Independence from the British Raj there were more than five hundred Native or Princely States and these were semi-independent States which have separate political treaties with the British Government. They were ruled indirectly by the British Crown via treaties/agreements and were never a part of the British territory or British India. To name a few, Junagadh, Hyderabad, Mysore, Kashmir, Mayurbhanj, Tripura, Manipur, Khasi States and other Indian States were not part of British India.
The Indian Independence Act, 1947 divided British India into two Dominions, i.e India and Pakistan and as per Section 2 of the said Act it can be construed that the Native or Princely States were given the liberty to accede either to Dominion of India or to the Dominion of Pakistan, However, it can be categorically stated that they even had the third option to reclaim their suzerainty or autonomy. It is part of history that the Mylliem State (one of the Khasi Native States) moved the Federal Court vide plaint filed on the 2nd February, 1949 to reclaim its suzerain powers. In the said plaint it was strongly argued thus- “From the fifteenth day of August 1947, by reason of operation of Section 7 of the Indian Independence Act 1947 all the said Treaties and Agreements and the suzerainty of the British Crown over and in respect of the Mylliem State (Plaintiff) and all powers, functions, rights, authorities and jurisdiction exercisable by the British Crown by such treaties, grants, usages or otherwise lapsed, and all powers, functions, rights, authorities, title, jurisdiction of the Mylliem State revived.” It was further submitted that “…the Mylliem State disputes the powers, functions, authorities, rights and jurisdiction of the Dominion of India (Defendant) over and in respect of the Mylliem State, save and except what is expressly stated in the Instrument of Accession…” In the context of the Native or Princely States the idea autonomy or internal sovereignty is derived from the agreements which these Native States had entered with the Dominion of India and such autonomy can never be washed away. Any move to undermine the significance of such agreements will be perilous. On the other hand, Kashmir signed the Instrument of Accession with the Dominion of India on the 26 October 1947 and it is important to note that excepting Kashmir and the twenty-five Khasi Native States, all other Princely States have given full and exclusive authority, jurisdiction and power to the Dominion of India via the agreement or declaration of merger. In the case of Kashmir, Article 370 was incorporated in the Constitution of India and Kashmir was accorded special status and having its own Constitution of Jammu & Kashmir which the Native State had adopted in its Constituent Asse,mbly on the 17th November 1956. It was until 2019 when the Indian Government decided to do away with the special status given to the State of Jamu & Kashmir and further bifurcated the State into two Union Territories. Further, Article 370 was abrogated and the Constitution of Jammu & Kashmir was rendered infructuous by the Constitution (Application to Jammu & Kashmir) Order 2019, issued by the President of India on 5 August, 2019. As a result, several petitions were filed to challenge the abrogation of Article 370 and now the matter is being heard by the Constitution Bench.
According to L. Gilbert Shullai, “the twenty-five Khasi Native States collectively known as the Khasi States were not merged with the adjoining Province of Assam as they did not sign the merger agreement and no Notification in exercise of powers conferred by section 290-A of Government of India Act, 1935 was issued…Nongstoin State, was the last among the twenty-five Khasi States to sign the Instrument of Accession on March 19, 1948…”
From August 15, 1947 to March 19, 1948 important political developments emerged and this period is crucial for the understanding of our political, legal and constitutional history. Nearly twenty Khasi States signed the Instrument of Accession on December 15, 1947 and the Instrument of Accession also contained the Annexed Agreement which was accepted as an integral part of the Instrument of Accession by the Governor General of India on August 17, 1948.
On the eve of Independence, the twenty-five Khasi Native States had formed the collective body called the Federation of Khasi States and it is evident from the Instrument of Accession that the Khasi States acceded to the Dominion of India both individually and collectively as members of the Federation. An extract from the Agreement runs thus, “We the rulers of the Khasi States specified below: Having agreed to the establishment of a Federation of which all the said Khasi States are members; And being desirous of acceding to the Dominion of India, individually as Rulers…and collectively as members of the said Federation; Do hereby declare that we accede to the Dominion of India…”
The Instrument of Accession by which the Khasi States acceded to the Dominion of India is subjected to the provisions of the annexed Agreement and the following contains the table of Khasi States which signed the Instrument of Accession and the dates of execution:
The Khasi States and Kashmir were equal in status vis a vis the Dominion of India. While Kashmir was accorded its own Constitution and special status under the abrogated Article 370, the Khasi States were relegated to the Sixth Schedule. The hearing before the Constitution Bench is teaching one to re-visit and renew the passion for local history.