Legal and Constitutional position of Kashmir

Legal and Constitutional position of Kashmir
By Shabir Choudhry
In order to have a realistic and pragmatic view on the present struggle in Kashmir it is important to understand the legal position of Kashmir at the time of the Partition of India.

Many people erroneously believe that because India was partitioned on the basis of 'Two Nations Theory', and Kashmir being a Muslim majority state, therefore it should become part of Pakistan. But, either they don't know or they fail to understand that the 'Two Nations Theory' was not applicable to Princely States, including Kashmir. The founder of Pakistan Mohammed Ali Jinnah explained that in an interview held on 17 June 1947, he said:
"After the lapse of paramountcy the Indian States would be constitutionally and legally sovereign States and free to adopt for themselves any course they wished. It is open to the States to join Hindustan, Pakistan or to decide to remain independent. In my opinion they are free to remain independent if they so desire."

It must be noted that Mr. Jinnah was a brilliant constitutional lawyer of his time, and he as the President of Muslim League, and as a lawyer believed that the 'Two Nations Theory' did not apply to the Princely States, including Kashmir.

Furthermore, the last Viceroy to India, Mountabatten, in his speech to Chamber Of Princes made on 25 June 1947, said:
"...... The Indian Independence Act releases the States from all their obligations to the Crown. The States will have complete freedom - technically and legally they become independent."

These quotations from two most important leaders of the time clearly show that the "Two Nations Theory' did not apply to Kashmir, and that after the lapse of Paramountcy, all the States which did not accede to either India or Pakistan, became independent. History tells us that the Maharaja of Kashmir did not accede to any country before the lapse of Paramountcy, and he became an independent ruler.

The Indian claim to Kashmir is based on very controversial and 'forced accession' to India made by the Maharaja on 26 October 1947, when he was fleeing his Capital, Srinagar. The Kashmiri people rejected this 'accession', and so did Pakistan (the other contender of Kashmir) and the world community in the United Nations. Even the Indian leaders rejected this 'accession', Pandit Nehru, the Prime Minister of India said:
"We have declared that the fate of Kashmir is ultimately to be decided by the people. That pledge we have given (and the Maharaja has supported it) not only to the people of Kashmir but to the world. We will not and cannot back out of it. We are prepared, when peace and order have been established, to have referendum held under international auspices like the UN. We want it to-be a fair and just reference to the people and we shall accept their verdict."
Nehru's telegram No Primim 304 dated 8 November 1947.
In another statement to the Indian Parliament on 16 June 1948, Pandit Nehru said:
"If after a proper plebiscite the people of Kashmir said we do not want to be with India, we are committed to accept it even though it might pain us. We will not send an army against them. We might feel about it, we will change the constitution if necessary."

This clearly demonstrates that even the Indian government did not think that so called 'accession' was fair or final, otherwise no country agrees to hold a plebiscite to determine the future status of an area which is its legal and constitutional part.
This brief background explains that Kashmir is not legal or constitutional part of either India or Pakistan, and that the 'Two Nations Theory' was not applicable to the State of Jammu And Kashmir. So when examining the possible solutions of the Kashmir dispute the above facts must be taken into account.

UN Resolution and The Shimla Pact
When considering the possible solutions of Kashmir, people refer to United Nations Commission for India and Pakistan's resolutions on Kashmir. There were two such resolutions, the first one was passed on 13 July 1948 and the second one on 5 January 1949.

The first resolution, apart from offering the option of acceding to either India or Pakistan, implied the possibility of an independent Kashmir by using the phrase 'future status' of Kashmir. The second resolution limited the Kashmiri peoples choice to either joining India or Pakistan - denying the People to become independent. This change was made on the request of Pakistan.
We oppose these resolutions because:
Although these resolutions acknowledge the disputed nature of Kashmir, but they fail to offer the Kashmiri people a right to determine their future without any restrictions imposed on them.
When these resolutions were passed there was no Kashmiri representation, and therefore they do not reflect the true aspirations of the Kashmiri people.
In the past, both countries showed reluctance to implement these resolution, although India created more hurdles, but now it has become impossible to get them implemented (there are a number of reasons for this).
Whatever limited right was given to the Kashmiri People by these resolutions it was taken away in the 'Shimla Pact' made between India and Pakistan after the war of 1971. According to the Shimla Pact, the governments of India and Pakistan will bilaterally find the final solution of Kashmir. It makes no reference to the people of Kashmir.

There has been an armed struggle going on in Kashmir to get independence. People may have different views on this struggle, but one thing is quite clear that the people of Kashmir started this when they realised that all the peaceful and democratic means of achieving their objectives have failed. Whereas I fully justify the reasons for starting this struggle, I feel that time has come to start a dialogue. By the use of gun alone no one is going to win. It is not the best way to solve disputes. International trend is to solve disputes through continuous negotiations.

It is because of the above facts we advocate that a new initiative on Kashmir has to be taken. We know that the UN resolutions, important as they are, do not provide a solution which can be acceptable to all the parties to the dispute. We know the 'Shimla Pact' and bilateral talks do not provide a solution either. It must be noted that it is not a bilateral issue, therefore, international community must not emphasise bilateral talks.

The role of the British Politicians
It is disturbing to note that despite wide scale human rights violations in Kashmir, especially in the Indian held Kashmir, where more than fifty thousand people have been killed, women raped and property destroyed, the world community, by and large is still silent. This has given a free hand to the Indian government to deal with the Kashmiris the way in which it suited her. Many governments in the world still regard Kashmir as a bilateral issue which has to be negotiated between the both governments.

This is also the attitude of the British press and the politicians who pay little attention to the events taking place in Kashmir. The Kashmir Issue is the legacy of the British Raj, and the British government and the politicians have a moral duty to help and solve this issue, and put stop to tragic events taking place there.

I understand there are individual members of Parliament who, for different reasons, support the Kashmiri struggle and oppose the human rights violations in Kashmir. But this is not enough and much more needs to be done. Kashmir should not be only used to attract votes and publicity, a sincere endeavour should be made to project the Kashmir issue in appropriate places in Britain, and than in different forums in the world.

Many governments, including the British government, do not want to annoy India or Pakistan because of their economic interests. Whereas it is important to care for economic interests, it is equally important to stand up for principles, democratic values and justice; and especially to fulfil moral obligation. It is time that the British politicians realise all this and make Kashmir a election campaign issue.