August 14 is important for Kashmiris for a variety of reasons. On this day in 1931, Dr Sir Muhammad Iqbal (RA) urged the people of sub-continent to observe Youm-e-Kashmir (Kashmir Day) in memory of the persons who laid down their lives outside Srinagar Central Jail on July 13.
The day was observed across the Indian sub-continent. A rally was held at Srinagar where the blood stained clothes of the martyrs were displayed. Processions were taken out at Amritsar, Lahore, Lucknow and other places.
On August 14, 1947 Pakistan came into being. Pakistan is important for Kashmiris because it makes their hearts beat. This stark reality was admitted by senior Congress leader, Ghulam Rasool Kar a few years ago while addressing a rally at Sopore. He said: “My heart beats for Pakistan. I am pained to see Pakistan in trouble.” This is exactly how Kashmiris feel public posturing for political reasons (by some actors) notwithstanding.
And last but not the least, on this day in 1947, the state of Jammu Kashmir became independent. The state high court in a landmark judgement observed that Maharaja Hari Singh was an absolute sovereign from August 14 to October 26, 1947. A division bench comprising Janki Nath Wazir CJ and Shahmiri J gave a landmark judgement in 1953 in the case of Magher Singh v/s State of Jammu Kashmir.
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)
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