Legality of Indian Claim on Kashmir
February 17, 2010 2 Comments
Following the World War-II, there has been an unremitting resistance by the people of Subcontinent against the ruling British colonial power. Under the swelling pressure of the people of subcontinent, the British Government finally had to announce the partition of the Subcontinent on June 3, 1947. However, the British Parliament formally passed “The Indian Independence Act-1947” on July 17, 1947. As per provision of Article-I of the Independence Act, India was to be partitioned into two Dominions namely “India” and “Pakistan” from 15th day of August 1947.
However, Article 7 of the Indian Independence Act very clearly states that from 15th August 1947, “the suzerainty of His Majesty over the Indian states lapse and with it lapses all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian states”. Consequent upon this, all powers and functions, which were exercisable by the British Government in relation to the Princely States, also ceased.
All agreements of British governments with either rulers or states also lapsed on 15th of August 1947. Since the state of Jammu and Kashmir was a Princely State with a special autonomous status, therefore, it can be very conveniently said that on 15th day of August 1947, the Maharaja Sir Hari Singh was not the permissible ruler of the state of Jammu and Kashmir as all his treaties with British India lapsed on that day. Once he was not a ruler of the state, he had no right to sign the instrument of accession (if at all he signed that) with the new Indian dominion. This title to the state was granted to him by the British Government (East India Company) under the Treaty of Amritsar (Kashmir Sale deed) signed on 16 March 1846 and lapsed on the appointed day of 15th August 1947.
Besides, on July 25, 1947 in his address to special full meetings of the Chamber of Princes held in New Delhi, Lord Mountbatten categorically told all princes of Princely States that they were practically free to join any one of dominions; India or Pakistan. He however clarified that, while acceding to any dominion they could take into account geographical contiguity and wishes of the people. In case of the State of Jammu and Kashmir, either of the above factors was favouring state’s accession to Pakistan, but Maharaja Hari Singh did not accept this basic precondition of accession.
Indian claim that its forces landed Srinagar Airport on October 27, 1947, only after signatures on Instrument of Accession by Maharaja and the Indian government is also fallacious. Indeed, a heavy contingent of Patiala State was involved in fighting against the Kashmiri rebellions in Uri Sector on 18 October 1947, which means that they were very much inside the State`s territory much earlier than October 27, 1947.
On 24 October 1947, Kashmiris formally declared their independence from Dogra Raj and established their own government with the name of Azad (Free) Kashmir Government. Following this Maharaja Hari Singh sent his deputy Prime Minister Mr. R.L. Batra to New Delhi for Indian military assistance to his Government against those revolted and tribal from NWFP who joined their brethrens against a tyrant rule. He (Batra) met the Indian Prime Minster and other prominent Indian leaders and requested for assistance without making any mention or promise of state’s accession to the Indian Union. The Indian government instead sent Mr. V.P Menon (Indian Secretary of State) to Kashmir to assess the situation on the spot by himself on 25 October 1947.
After assessing, the situation in Kashmir Mr. V.P Menon flew back to New Delhi on 26 October 1947, together with Kashmiri Prime Minster Mr. Mahajan, who met top Indian leadership, seeking military assistance. He was refused to get that until state’s formal accession with India. On this Kashmiri Premier threatened the Indian leadership that if immediate military assistance was not granted, he would go to Lahore for negotiations with Pakistani leadership over the future status of the state. In a parallel development, Sheikh Abdullah met Indian Premier, Jawaharlal Nehru, on the same day, October 26, 1947, who agreed to despatch military assistance to the Kashmir government.
As stated by Mahajan, the Kashmiri Prime Minister, that V.P. Menon accompanied him to convince Hari Singh for accession of the State with India on 27 October 1947. Under the compulsion, Hari Singh signed the instrument of accession on the same day i.e. 27 October 1947, which was later taken to Lord Mountbatten (Indian Governor General), who also signed that on the same day (27 October), which was practically difficult. V.P. Menon, however, states that all these formalities of signatures were completed on 26 October 1947, which is impracticable. This version, however, seems concocted as even contradicted by pro Indian Kashmiri Premier. Both however are unanimous on one point that Indian state forces landed at Srinagar airfield in the morning of 27 October 1947 and a battalion of Patiala State received them there, which was already there.
In his travel account, Kashmiri Prime Minister Mahajan has described that he had refused to return to Kashmir and hand over powers to Sheikh Abdullah until Srinagar airfield had been physically taken over by the Indian forces. This creates doubt as to whether Mahajan and V.P Menon even went to the State (Jammu) for getting the signatures of Maharaja Hari Singh on the Instrument of Accession before 27 October 1947. This is further confirmed by variation in the statements of V.P. Menon and Mr. Mahajan (Kashmiri Prime Minister) regarding their travel to Kashmir either on 26 or on 27 October 1947 for getting the signatures of Maharaja Hari Singh.
However, whatever be the case the factual position is that; Maharaja Hari Singh was not in favour of State’s accession to Indian Union therefore, he only requested the Indian government for military assistance without any pre-condition of accession. Indeed, the accession documents and letters to Lord Mountbatten were initiated through the Joint efforts of V.P Menon and pro India Kashmiri Premier Mahajan, as wished by Indian Government and Hari Singh was forced to sign it on the evening of 27 October 1947 or thereafter. Whereas, Indian forces landed on Srinagar airport on the early hours of 27 October 1947. The time calculation of Mr. V.P Menon’s (Indian Secretary of State) visit to Srinagar, Delhi, Jammu and vice versa does not fit in with the concocted story of the signing of the Instrument of Accession.
Even if there is an instrument of accession between Maharaja Hari Singh and Indian government, it provides a number of safeguards to the state’s sovereignty, e.g. Clause 7 of the instrument says, “Nothing in this instrument shall be deemed to commit me in any way to acceptance of any future constitution of India …”. Whereas, Clause 8 of the Instruments says, “Nothing in this Instrument affects the continuance of my sovereignty in and over this state…….”.
Supposedly, the all instrument of accession was signed by the Maharaja and Indian government, it was clearly mentioned in his reply to Maharaja’s letter by Lord Mountbatten that after the restoration of law and order in the State of Jammu and Kashmir and the expulsion of the raiders, its future will be decided in accordance with the wishes of the people of the State. The same stance was taken by UNO in its over 23 resolutions, passed from time to time. Besides, over the years, Indian leadership had been reiterating their commitments to Kashmiris, Government of Pakistan and to the world community that after the restoration of peace in the state, its future would be decided as per the wishes of the people of Jammu and Kashmir through UN mandated plebiscite. However, with the passage of time India refused to fulfil her commitments/obligations, which means she had ill designs right from the very beginning. Nevertheless, implementation of these resolutions and the fulfilment of Indian commitments is still awaited.
Another significant fact is that, had there been any accession treaty between the state of Jammu and Kashmir and the Indian government, why it could not be published in the Indian White Paper of 1948? This has left a great disbelief regarding the conclusion of any such agreement. Yet another very serious reservation arises, had Kashmir been part of the Indian Union, why it was given a special status under the provision of internal autonomy through Article 370 of the Indian constitution? It is momentous to mention that the Indian government did not accord a similar status to any other state under this provision. Indeed, out of 560 Princely states, over five hundred joined India, but none was accorded this special status.
Through this status and a number of commitments, India kept luring in Kashmiri masses to become its part. Upon failure of winning their commiserations, India forced its way, through a fake assembly resolution in mid 1950s and thereafter started calling the state as its integral part. United Nations, however, through its resolution, No.2017 of 30 March 1951 and S.3779 of January 24, 1957, made it absolutely clear that; any action which Kashmir Constituent Assembly may have taken or might attempt to take to determine the future shape of state or any of its part would not constitute the disposition of the state and that election of State’s Constituent Assembly cannot be a substitute for plebiscite. Thus, this act of India was a blatant violation of the UNSC resolutions that India had accepted too.
Inaccuracy of Indian claim of accession can be judged from the top-secret letter addressed to British Government by Mr Alexander Symon, UK High Commissioner to India. In this letter, he briefly described the events until 4.00 P.M on October 1947, as; ten Indian aircrafts loaded with arms and troops were despatched to Kashmir from New Delhi on the morning of 27 October 1947. Until 4 P.M of 27 October 1947, Mr V.P. Menon has not reported from Jammu, which mean accession documents were either not signed or signed by Hari Singh on 27 October 1947, and there were only rumours of Kashmir accession to Indian Union without any confirmation.
Indian antagonistic approach can be imagined from the fact that Kashmiri Administration had requested for a Standstill Agreement with both India and Pakistan. Pakistan, however, accepted this offer but India owing to its pre-planned evil designs did not accept it. Instead of accepting it, India started interference in state’s affair through leaders like Sheikh Abdullah. Finally, they paved the way for illegal interference in the state’s affair through military invasion by her forces in October 1947.
From July to October 1947, with the connivance of Indian leaders like Pandit Jawaharlal Nehru, Patel, and V.P Menon, three Kashmiri Prime Ministers were changed one after the other. Pandit Kak, the State’s Prime Minister, was indeed favouring state’s accession to Pakistan or to keep it independent. He was a strong opponent of states accession to India, in spite of being a Hindu Pandit. Mahajan, who replaced Pandit Kak as new Prime Minister was a non-Kashmiri. He was a Judge of East Punjab High Court and has been the member of Radcliff Award, and hence a party to giving away the Muslim majority areas of Gurdaspur to India. He was very close to the top Indian leadership. To get him appointed as a Prime Minister of the state was through a planned strategy to force Maharaja from all around for surrendering to Indian Union.
In the light of the above-mentioned facts it can be very conveniently said that the Indian claim over the state of Jammu and Kashmir is completely illegitimate and unsubstantiated. India is negating its own commitment with Kashmiris, Pakistan and world community. Indian leadership should realize this and adopt a realistic approach for the solution of this outstanding issue as a goodwill gesture. Let UNO settle it under its auspices through plebiscite as per its resolutions.
Dr. R M Khan