A land mark judgement
In 1953 an important case, Magher Singh v/s state of JK was heard by a division bench of the state high court. The bench comprising Janki Nath Wazir CJ and Justice Shahmiri gave a landmark judgement. The bench laid down that Jammu Kashmir was an independent state from August 14 to October 26, 1947.
The judgement created a stir across the sub-continent. It was widely discussed and debated especially be the legal experts. According to them, the judgement has a serious bearing on the accession (if its validity is accepted for the sake of arguments).
The appellant, Magher Singh, prayed for a declaration that the Jammu Kashmir Big Landed Estates (Abolition) Act was ultra vires to the powers of Shree Yuvraj and , therefore, in-spite of the passage of this act, the plaintiff continues to be the lawful owner of 811 kanals of land situated in villages Kadyal and Kotli Arjun Singh tehsil Ranbirsingh Pora of district Jammu. The counsel of the appellant agitated the following points to prove his claim.
a) His highness the Maharaja of Jammu Kashmir was not an absolute sovereign and therefore he could not entrust his legislation to any other person.
b) Shri Yuvraj being a delegate of his highness was not competent to enact the act under section 5 of the Jammu and Kashmir Constitution Act 1996.
Shahmiri J held ," In regards to the first point that his highness the Maharaja was not an absolute sovereign, it is urged that learned counsel for the appellant that before the partition he was under the paramountcy of British crown and after he executed the instrument of accession in favour of the dominion of India on October 26, 1947 he surrendered his part of sovereignty to the dominion of India and therefore was a limited subordinated sovereign and consequently he could not delegate his legislative authority to Shree Yuvraj".
The learned Justice explained ," While the Maharaja of Kashmir was under the Paramountcy of the British Crown before the partition of India from August 15, 1947 under section 7, Indian Independence Act (10 and 11 Geo VI Ch 30) passed by the British parliament ,Suzerainty of His Majesty over the Indian States lapsed and all functions exercised by His Majesty at that date with respect of state of Jammu and Kashmir, all obligations of His Majesty towards Jammu and Kashmir state or the ruler thereof and all powers ,rights ,authority or Jurisdiction exercisable by His Majesty at that date in relation to Jammu and Kashmir by treaty or otherwise lapsed and the state became an independent and sovereign state in the full sense of International law. Thus whatever limits to the sovereignty of His Highness in relation to matters coming within the sphere of paramountcy existed before August 15,1947,these ceased to exist and His Highness became an uncontrolled and absolute sovereign even in relation to such spheres from that ."(SIC)
Similar views were expressed by Wazir CJ. He held, "It is contended on behalf of the appellant that His Highness the Maharaja Bahadur Hari Singh was not an omnipotent sovereign but was a subordinate sovereign. His sovereignty, if any was lost after the state's accession to India…….This contention is based on a misconception of the true constitutional position of His Highness…Maharaja was the fountain of all powers, executive, legislative and judicial. He possessed all the essential attributes of absolute sovereignty and his position can well be compared to the British Parliament. A reference of section 7 of the Indian Independence Act, 1947 will further make it clear that even the external sovereignty of His Highness reverted to him after the lapse of the paramountcy of the British crown. His Highness thus became an omnipotent sovereign after the new dominions of India and Pakistan came into existence."(SIC)
Strangely enough the judgement was totally ignored in Jammu Kashmir. Very few people have made a mention of it. The judgement was first reported by local English daily in 2007. The report evoked massive response. Many people expressed their views. Some went to the extent of challenging the validity of accession. Disagreeing with the judgemnent, a student said: "In July 1947 the Indian Independence Act was passed and with it ended the British Paramountcy. This put an end to all the agreements and treaties that existed between the princely states and the Crown. The infamous sale deed of Amritsar also ended. The Maharaja ceased to be a legitimate (Kashmiris never accepted the legality of Amritsar Sale Deed and Dogra rule) ruler and could not, therefore, take a decision on behalf of the people who hated him. The instrument of accession (if at all it was executed), therefore, is invalid."
But a good number of people agreed with the high court. "Maharaja Hari Singh became an absolute sovereign after lapse of paramountcy. Even external sovereignty reverted to him after the lapse of paramountcy of the British Crown. Hari Singh thus became an omnipotent sovereign after India's partition. The accession, therefore, was a treaty between two Independent states and not an ordinary agreement between a Princely state and government of India."