Its Constitutional Status
Mr. Adarsh Sein Anand wrote a Doctoral Thesis on the controversial subject of Jammu & Kashmir (J & K, for short), the Thesis was approved by a prestigious University in the United Kingdom and a Doctoral degree was conferred upon him. Dr. Anand was later appointed as a Judge of the High Court of J & K. He wrote a book titled ‘Constitution of Jammu & Kashmir--Its Development & Comments’ (Universal Law Publishing, New Delhi), the same was largely based on the said Thesis.
The interesting part is that the said book was published when Dr. Anand was working as a Judge and continued to be sold even after he was elevated to the Supreme Court of India--the country’s Apex Court, later he became the Chief Justice of India (i.e. he came to occupy a Constitutional post). Thus, what was published, sold or distributed during his said tenure lends credence to the contents of the same-- moreso, the University which conferred the said Doctoral degree, impliedly testified to the veracity of its contents and the force of its conclusions.
In this book Dr. Anand relates the events leading to the “accession” of J & K, and to support his case he reproduces the correspondence between the then ruler of Jammu & Kashmir (namely, Raja Hari Singh) and the then Governor General of India, viz. Lord Mountbatten.
Strangely, though the said student and the Referees have continued to overlook Item 15 of the First Schedule to the Indian Constitution—a legal fox pas missed by the Indian Parliament itself. This Item defines & demarcates the territory of J & K in the following words:
“[15] Jammu & Kashmir: The territory which immediately before the commencement of this Constitution are comprised in the Indian State of Jammu & Kashmir.”
It is important to note that the Indian Constitution “commenced” w.e.f. 26th January, 1950—whereas the partition of British-India took place on the midnight of 15th August, 1947. The Kashmir dispute/problem arose after the said ‘partition’, and much of the current ‘Line of Actual Control’ (LOC) came into existence before the 26th day of January, 1950. What is, in effect, included in the territory of J & K-- as defined by the Indian Constitution?
The said First Schedule refers to Article 1 and Article 3 of the Constitution. Article 1 states, inter alia, that:
“ 1. Name & territory of the Union—(1) India... shall be a Union of States.
(2) The States and the territories thereof shall be as specified in the First Schedule. ...
(3) (c) such other territories as may be acquired.”
In effect, therefore, the LOC is a constitutionally recognised International Border.
Article 3 deals with the powers of the Parliament for altering the above areas—however, the Indian Parliament has not till date altered the aforementioned territorial definition of J & K.
Let us now analyse the said correspondence. The Indian Contract Act, 1872 was enacted by the British Parliament. Section 1 of the said Act defines the term ‘Contract’ as:
“An agreement enforceable by law....”
The phrase “legally enforceable’ is defined by Section 10 of the said Act, as:
“All agreements are contracts if they are made by the free consent of parties competent to contract...”
Section 7 of the said Act further says:
“In order to convert a proposal into a promise, the acceptance must—(1) be absolute and unqualified...”
That is to say, there must be an identity of intent & purpose between the parties to the contract.
Now, in the light of the contents of the said book and the Law of Contract—as practised in the ‘Common Law’ countries, the following questions of law & fact arise from the said correspondence coupled with the contents of the said book:-
a) Do the circumstances leading to Raja Hari Singh’s offer for accession, show that his consent was “free”?
Was there a counter-offer by Lord Mountbatten? If so, did the offer made by Raja Hari Singh lapse in the eyes of law?
Another question which arises is:
Can, in view of Article 18 of the Constitution of India, Dr. Anand continue to use the prefix “Mr. Justice” even after his retirement from the judicial service/appointment?
Article 18 reads:
“18, Abolition of titles—(1) No title, not being a military or academic distinction, shall be conferred by the State...”
In addition, rule 36 in Section-IV of the Bar Council of India Rules clearly says that an Advocate’s “sign board or name plate or stationery should not indicate that he .... has been a Judge or an Advocate General.”
Indian Ex-Servicemen’s Bar Association (Regd.)
Supreme Court of India, New Delhi