The Indian Independence Act, 1947 passed by the British Parliament had the effect of setting up the erstwhile British territory in India into two independent Dominions, Pakistan and India, which consequently became sovereign state, freeing the former princely states of India, including Kashmir, from the suzerainty of Britain. The princely states were, for internal purposes, outside the administrative, legislative and judicial control of the British India Government but were subject to the paramountacy of the British crown. The princely states which were thus freed from suzerainty became independent sovereign states. Kashmir became an independent sovereign state with effect from August 15, 1947. The Indian Independence Act, 1947 contained in Section 2 (4) a provision in terms of which the freed princely states could join either India or Pakistan. Several princely states, except the states of Junagadh, Hyderabad and Jammu and Kashmir, were persuaded by the then Governor- General Lord Mountbatten to enter into a relationship before the actual date of transfer of power, by executing an Instrument of Accession on three subject matters, viz., defence, external affairs and communication. Maharaja of Jammu and Kashmir executed the Instrument of Accession, an international treaty, on October 26, 1947 with Dominion of India. Article 7 of the Instrument of Accession was specific that Jammu and Kashmir was not committed to the acceptance of any future Constitution of India unless specifically accepted in terms of Article 5 of the Instrument of Accession. In other words, it was clear that the treaty relationship required a modification through a supplementary instrument, detailing the modified relationship. Against this backdrop, an attempt has been made in this paper to analyze the legal implications of the Instrument of Accession.

The Maharaja of Jammu and Kashmir, after the passing of the Indian Independence Act, 1947, did not accede to the suggestions of Lord Mountbatten1 and initially remained silent on the question of accession2 in the hope of establishing a sovereign state.3 The Maharaja of Jammu and Kashmir sought to buy time over the question of accession and negotiated a Standstill Agreement with India and Pakistan to continue the status quo for trade, commerce and intercourse4 among the two people. Pakistan readily accepted the Standstill Agreement5 but India chose to consider the larger issue of the state’s position vis-à-vis India as a prioritized agenda.6 Matters did not move as were calculated. The reluctance of the Maharaja to accede either to India or the newly created state of Pakistan aggravated the problem politically from the Pakistan side. Pakistan imposed an economic blockade7 despite the Standstill Agreement. This was followed by ‘tribal’ invasions assisted by the Pakistan regulars on October 20, 1947 which caused great devastation and the state was left to freebooters. The stability and future existence of the state was at stake. It became impossible for the Maharaja to resist the invasion with his small army and he sought immediate assistance from the Dominion of India and signed the Instrument of Accession which was made a precondition, on October 26, 1947, permitting

the Governor-General of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall by virtue of this my Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the state of Jammu and Kashmir (hereinafter referred to as “this state”) such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India, on the 15^th day of August 1947, (which Act as so in force is hereafter referred to as ‘the Act’).

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