India claims control of the two thirds of J&K as its genuine and integral part on the reason that the Ruler of J&K acceded on 26th October 1947 with that country. So, it also lays claims to PAK and JK Northern Districts under Pakistan Control. Though I have in my book exposed factually, and in legal terms, such claim but herein for argument's sake we accept the both positions that Hari Singh was competent to accede to any country, or could have declared independent status too. Simultaneously we agree that he has created relationship with India. Mere perusal of that Deed sufficiently makes out that such relationship was not territorial integration but a conditional and temporary contact under which the Ruler of JK had surrendered only three (scheduled) departments under him to the legislative jurisdiction of the Dominion restricting such surrender only till the date the Dominion Government and its Legislature remained strictly within the limited circle of those provisions of GoI Act, 1935 which were in vogue on 26th October, 1947. Any deviation therefrom, even by adoption of other provisions of GoI Act, 1935 or by deletion of any provision after 26th Day of October, are substituted by clauses and articles of the Indian Constitution that was pending in the form of Bill then before Consembly. Any such happening shall automatically make the relationship defunct and option will arise for acceding party to create or extinguish the relationship under new terms with the Democratic Republic of India as the relationship with Dominion of India ceased on 26th January 1950. Such new relationship was to be created by way of a supplementary accession or a written deed to that extent.
Pertinent to mention that other Princes who acceded to either of the two countries had provided full mandate to respective assemblies to bind that acceding State to all provisions of the constitution which Consembly would adopt as the Act. Hence, all other Princely States geographically integrated their Principalities with such acceded main power. Instead, His Highness preserved the political geography of his Country in tact (through that Truce) which he had inherited from his great grandpa, Gulag Singh.
The first three Paras of that Deed are not necessary for our study. Through Paragraph (4) the acceding party (the Ruler of JK) had been assured by the accepting party (the Governor General of India) that in case the Dominion wishes to extend any law to this State the application of such piece of legislation from Dominion Legislature may be applied by the State Ruler after an agreement in writing to that extent and such agreement shall be deemed part of the Deed of Accession.
Article 370( 1-b) in Constitution of India has been inserted to subvert and frustrate that condition which was inserted in the Truce Deed and was agreed by the GG of the Indian Dominion. In this clause the parties to the Truce reserved option for the sovereign power of J&K; meaning thereby in His Highness or among his successors (the State Subjects of J&K) who had together inherited that absolute power after his voluntary or forced abdication. We have quoted the statement of S. M. Abdullah on the floor of UNSC in 1948 as member of Indian Delegation that His Highness surrendered sovereignty and rule upon his ruled country on 26.10.1947. Thus on that very day this absolute power was inherited by the people of JK which position is admitted by GoI in the Delhi Agreement of 1952. The sovereignty is indivisible so the option reserved in the Truce Deed can be exercised by the whole and not by any part.
This unilateral violation contained in Clause (1-b)of Article 370 frustrates the spirit of the Truce as it was meant to colonize JK and subvert the option reserved in the sovereign power. No proxy can substitute the sovereign will.
Sixth Paragraph bars Government of Indian Dominion to make any law or implement any such law for J&K to requisite any property in this State so Sub-Article (2) of Article 256 of the Constitution of India is unilateral intrusion made by GOI to take in its control JK property, movable or immovable.
Now let us come to very important rather the speaking embargo imposed by the Acceding party and accepted by the G.O Indian Dominion. This condition expressly limits the span of Accession and conditions it to be operative till India retained Dominion character and remained governed by the then applicable provisions of the GOI Act 1935. It binds the GOI that as and when any other Code was substituted by it to the provisions of GOI Act 1935 than those which were then in operation, the constitutional relationship created by the accession of 1947 shall cease.
Paragraph (7) reads:-"Nothing in the instrument shall be deemed to commit me in any way to the acceptance of any future constitution of India or to fetter my discretion to arrangements with the Government of India under any such future constitution." On 26th October, 1947 the Consembly was seized of the Constitution Bill and so the parties to the deed knew well that India was just on the threshold of political revolution traversing from the Dominion character to the Republic Democratic set-up. The Consembly which was charged under the Deed of Accession to legislate for three subjects mentioned in the schedule too was consigned to archives of history and was substituted by the Indian Parliament. The head of the State, the Governor General of India to whose government the Maharaja had acceded was abolished and in its place the office of the President had come up; in nomenclature, designation, powers, authorities and corresponding duties quite revolutionary than the office, designation, powers, authority and duties of the office of the Governor General
His Highness writes on 31st of January, 1948 (only 96 days after the alleged execution of the Truce) to Patel:- "I have no idea of how the new Constitution of India is going to affect us beyond the fact before very long the Rulers will disappear even in name." It clearly proves the intention and objects for reservation of the option. He was apprehending that the Constitution in making might affect his position adversely or might not suit to the aspirations of his people so subjected its approval/ disapproval to dispassionate study of the provisions of the Constitution which was in the process of making then. Hence, the action for renewal of the arrangement through supplementary accession deed or by way of any written agreement did accrue on the same day rather at the same moment of promulgation of the Constitution on 26th Jan.1950; neither before receiving the assent of G.G. nor after inordinate delay because during that interim period no authority created by the Constitution could administer the three scheduled departments .This was the known and declared rider imposed by the acceding party and was accepted condition imposed upon it by the accepting Party(GOI). Neither party initiated for execution of supplementary truce or for written agreement so it is presumed that the sovereign authority had exercised the discretion vested in it for non- continuation of the arrangement arranged through the Treaty of 27th of October, 1947.
Imposed Assembly in Indian occupied J&K while passing Constitution Act confirmed in 1957 the action of JK Ruler dated 26.X.1947. That confirmation of a dead transaction amounts to mere an obituary and that too belated- after seven years of its cessation.
Secondly, in Sectsion:3 of that Act J&K is declared an integral part of India. It has no effect whatsoever as:- (i)That Assembly was not elected but all the 75 members were selected by the Indian agent SM Abdullah treacherously and with farce, force and fraud.
(ii)-Even if that House would have been elected fairly and freely it had no jurisdiction or power to decide on behalf of the sovereign power viz; the people of J&K from Gilgit to Chishole and from Lakhan Pore to Domail. The sovereignty being indivisible therefore the decision of the one portion does not bind even the families of the members of that House.
(This write-up is based on few points discussed in detail in the Epilogue to my book, Kashmir Imbroglio Septagon of Indian Bluffs, Pakistan Blunders & Treacheries of Leadership to be soon released)