Let Dr justice Adrarsh Sein Anand Judge, Supreme Court of India reply this one.. I always quote Indian intellectuals on issue of Kashmir..
<Which causes me to ask: why not let the Kashmiris have their own country? If it is accomodated with the participation of neighbors such as India, perhaps it would quell the animosities?> This is a million $ problem, and it roots to..
<<On 20-2-1947, the British Government made an announcement that independence would be granted to British India. This was followed by another statement on 3-6-1947 setting out its plan for the transfer of power. The plan inter alia provided that the Muslim majority areas in British India should constitute the dominion of Pakistan and the Hindu majority areas in British India the dominion of India. In this plan the position of the princely States was dealt with in the following manner:
"His Majesty's Government wish to make it clear that the decisions announced above (about partition) relate only to British India and that their policy towards Indian States contained in the Cabinet Mission Memorandum of 12-5-1946, (Cmd. 6835) remains unchanged."
The Indian native States, of which the State of Jammu and Kashmir was one such State, were those areas in the Indian subcontinent which were for internal purposes outside the administrative, legislative and judicial sphere of the British India Government. Each such State had a hereditary ruler, who, subject to the paramountcy of the British Crown, exercised, with some exception, unlimited power over the States ruled by them. These States covered more than half the area of the Indian subcontinent and were referred to as Indian India. The other part of India comprising the provinces and certain other areas was referred to as British India. The rulers of the native States were sovereign subject to the paramountcy of the British Crown. On her assumption of direct rule in India in 1858, the Queen Empress through a proclamation declared to the native princes of India that all treaties and engagements made with them by or under the authority of the East India Company would be honoured and scrupulously maintained. That the rights, dignity and honour of native princes would be maintained.
"Cabinet Mission" arrived in India on 23-3-1946. On 25-5-1946 the Cabinet Mission issued a memorandum dated 12-5-1946 in regard to the native States. In this memorandum the Mission affirmed that on the withdrawal of British Government from India, the rights of the States which flowed from their relationship with the Crown would no longer be possible to exist and the rights surrendered by the States to the paramount power would revert to the rulers of those States when the two new dominions of India and Pakistan are created. Paragraph 5 of the Memorandum read:
"When a new fully self-governing or independent Government or Governments come into being in British India, His Majesty's Government's influence with these Governments will not be such as to enable them to carry out the obligations of paramountcy. Moreover, they cannot contemplate that British troops would be retained in India for this purpose. Thus, as a logical sequence and in view of the desires expressed to them on behalf of the Indian States, His Majesty's Government will cease to exercise the power of paramountcy. This means that the rights of the States which flow from their relationship to the Crown will no longer exist and that all the rights surrendered by the States to the paramount power will return to the States. Political arrangements between the States on the one side and the British Crown and British India on the other will thus be brought to an end. The void will have to be filled either by States entering into a federal relationship with the successor Government or Governments in British India, or failing this, entering into particular political arrangements with it or them."
The Cabinet Mission, however, however, advised the rulers of the native States to enter into negotiations with the successor Government or Governments and evolve a scheme of the precise form which their cooperation would take. On 20-2-1947, the British Government made an announcement that independence would be granted to British India. This was followed by another statement on 3-6-1947 setting out its plan for the transfer of power. The plan inter alia provided that the Muslim majority areas in British India should constitute the dominion of Pakistan and the Hindu majority areas in British India the dominion of India. In this plan the position of the princely States was dealt with in the following manner:
"His Majesty's Government wish to make it clear that the decisions announced above (about partition) relate only to British India and that their policy towards Indian States contained in the Cabinet Mission Memorandum of 12-5-1946, (Cmd. 6835) remains unchanged."
Attached to the letter was an Instrument of Accession duly signed by the ruler, Maharaja Hari Singh. The operative part of the same read:
"Whereas, the Indian Independence Act, 1947, provides that as from the fifteenth day of August, 1947, there shall be set up an independent dominion known as INDIA, and that the Government of India Act, 1935, shall with such omissions, additions, adaptations and modifications as the Governor-General may by order specify be applicable to the dominion of India;
And whereas the Government of India Act, 1935, as adopted by the Governor-General, provides that an Indian state may accede to the Dominion of India by an Instrument of Accession executed by the ruler thereof;
Now therefore I Shriman Indar Mahander Rajrajeshwar Maharajadhiraj Shri Hari Singh Ji Jammu Kashmir Naresh Tatha Tibet adi Deshadhipathi Ruler of Jammu and Kashmir in the exercise of my sovereignty in and over my said State do hereby execute this my Instrument of Accession ...."**
Lord Mountbatten, the Governor-General of India indicated his acceptance in the following words:
"I do hereby accept this Instrument of Accession.
Dated this twenty-seventh day of October Ninteen hundred and forty-seven."†
This Instrument of Accession was in no way different from that executed by some 500 other States. It was unconditional, voluntary and absolute. It was not subject to any exceptions. It bound the State of Jammu and Kashmir and India together legally and constitutionally. The execution of the Instrument of Accession by the Maharaja and its acceptance by the Governor-General finally settled the issue of accession of the State of Jammu and Kashmir.
After accepting the Instrument of Accession, Lord Mountbatten wrote a personal DO letter to Maharaja Hari Singh in reply to his letter which had accompanied the Instrument of Accession but was not a part of the Instrument of Accession. In his letter Lord Mountbatten wrote:
"... my Government have decided to accept the accession of Kashmir State to the dominion of India. In consistence with their policy that in the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State, it is my Government's wish that, as soon as law and order have been restored in Kashmir and its soil cleared of the invader, the question of State's accession should be settled by a reference to the people."
This statement has figured as a controversial feature of Kashmir's accession to India. Critics of the accession have steadfastly maintained that this stipulation renders the accession conditional and that the question of States's accession has to be settled by a reference to the people of the State. The criticism, however, appears to be born out of ignorance of the correct legal position.
The only documents relevant to the accession were the Instrument of Accession and the Indian Independence Act and both the constitutional documents did not contemplate any conditions and therefore there was no question of the accession being conditional. The finality which is statutory cannot be made contingent on conditions imposed outside the powers of the statute. Pakistan, however, to suit itself, refused to recognise the accession. It called the accession as an act of "cowardly ruler" engineered with the 'aggressive' help of the Indian Government. It charged that the accession had been obtained by force. Alan Campbell Johnson in his treatise 'Mission with Mountbatten' writes: "Indeed, the State's Ministry, under Patel's direction, went out of its way to take no action which could be interpreted as forcing Kashmir's hand and to give assurances that accession to Pakistan would not be taken amiss by India." On his return to London, Lord Mountbatten narrated:
"Had he (the Maharaja of Kashmir) acceded to Pakistan before August 14, the future Government of India had allowed me to give His Highness an assurance that no objection whatever would be raised by them."Ø
Moreover, it cannot be denied that the Maharaja of Kashmir offered to accede to the Indian dominion after the assaults and raids had started on the State from across the borders. When at his meeting with Lord Mountbatten on 1-11-1947 Mr Jinnah claimed that the accession of Kashmir to India was based on violence, Lord Mountbatten replied, "the accession had indeed been brought about by violence, but the violence came from tribesmen, for whom Pakistan, and not India was responsible."
The accession of the State of Jammu and Kashmir to India imposed an obligation on the dominion of India to defend the State. To drive the invader out of the State was the task which the dominion of India was asked to face as soon as it finally accepted the Instrument of Accession. The requests and warnings of Government of India to the Government of Pakistan to deny assistance and bases to the invaders met with no response. India, therefore, decided to lodge a complaint with the Security Council.
India invoked Article 35 of the Charter of United Nations and complained to the Security Council against Pakistan. Under Article 35, a member is entitled to bring before the Security Council a 'situation' which imperils international peace. The Government of India appealed to the Security Council, to ask the Government of Pakistan:
(1) to prevent Pakistan Government personnel, military and civil, participating in or assisting the invasion of Jammu and Kashmir State;
(2) to call upon other Pakistani nationals to desist from taking any part in the fighting in Jammu and Kashmir State;
(3) to deny to the invaders:
(a) accesses to and use of its territory for operations against Kashmir;
(b) military and other supplies;
(c) all kinds of aid that might tend to prolong the present struggle.
(Security Council Document No. S/628 dated 2-1-1948.)
On 15-1-1948, there was delivered to the Secretary General of the Security Council a letter from Pakistan Government emphatically rejecting the Indian charges. The letter made counter charges against India. Those amongst others included:
(1) a persistent attempt to undo the partition scheme;
(2) a preplanned and extensive campaign of genocide against the Muslims in East Punjab and Punjab princely States;
(3) the acquisition of Kashmir's accession by fraud and violence.
(Security Council Document No. S/646 dated 15-1-1948)
Throughout the prolonged deliberations of the Council, India's spokesmen concentrated their attention almost exclusively on the tribal invasion and the legal fact of Kashmir's accession to India. This was, indeed, the limited issue referred to the United Nations. Indian spokesman concluded his opening statement by declaring:
"We have referred to the Security Council a simple and straightforward issue ... the withdrawal and expulsion of the raiders and the invaders from the soil of Kashmir and the immediate stoppage of the fight are ... the first and the only tasks to which we have to address ourselves."
(Security Council Verbatim Report No. S/P.V. 227 dated 15-1-1948)
The Security Council, in accepting India's complaint did indirectly recognise the accession of the State of Jammu and Kashmir to India and indeed the legality of the accession was not the point which India had brought before the Security Council. It is important to note that the question of aggression alone fell within the competence of the Security Council. The Indian spokesman's statement was followed by a brilliant address by Sir Mohammed Zafarullah Khan of Pakistan who with his brilliant eloquence 'broadened' the issue and sought to bring various disputes between India and Pakistan together. Frankly speaking it was at this stage that the 'aggressor' and 'victim of agression' were put on a par in the Security Council. The result of these deliberations at the floor of the Security Council was the resolution dated 17-1-1948 which both India and Pakistan accepted. In this resolution the Security Council called upon India and Pakistan 'to immediately take all measures within their power (including public appeals to their people) calculated to improve the situation and to refrain from making any statements and from doing or causing to be done or permitting any acts which might aggravate the situation...." (Security Council Document No. S/651 dated 17-1-1948.)
On 27-1-1948, India and Pakistan submitted draft proposals to the President of the Security Council on the appropriate methods of solving the Kashmir dispute. It was in this proposal that India agreed to the holding of a plebiscite in Kashmir as the ultimate determinant of Kashmir's status. The Indian representative observed on the floor of the Council:
"In accepting the accession they (India) refused to take advantage of the immediate peril in which the State found itself and informed the ruler that the accession should finally be settled by plebiscite as soon as peace has been restored.">>
That plebiscite is the demand of these Kashmiri terrorist... since 1948 this demand is considered unworthy of hearing..when you deny basic right of vote problems do come up.. |
