Why 22 October matters in Kashmiri history?
Dr Shabir Choudhry, on behalf of
- Legal documents:
A/ Statement made by His Majesty's Government on Transfer of Power,
- What Lord Mountbatten said about Princely States?
- What Mohammed Ali Jinnah said about
- What Pandit Nehru said about
- Standstill Agreement
a sovereign state? Jammu and Kashmir
- Tribal Invasion
- Maharaja’s letter to Lord Mountbatten
- Lord Mountbatten’s reply to Maharaja Hari Singh
- Instrument of Accession
- Indian complaint to the Security Council
- Article 257 of Constitution of
- Article 370 of the Indian constitution
- Excerpts of Sheikh Abdullah speech in the UN Security Council
Kashmir National Party leadership aims to empower people and oppose forces of terrorism, extremism and hatred. They aim to provide facts and correct information to people that they can make informed decisions. They don’t shy away from taking difficult decisions if that help to advance and promote the cause of people of
With that in mind they have decided to hold this conference known as Black Day. Traditionally people of
We believe that our sovereignty was violated on 22 October when hordes of tribesmen from North West Frontier of Pakistan attacked and invaded some parts of the State territory. They mercilessly killed and looted people. Religion of victims was not an issue to them; and their victims included Muslims and non Muslims. In fact, first person who was killed by these so called Jihadis was a Muslim from Muzaffarbad.
When these tribesmen attacked house of a non Muslim citizen of Muzaffarabad, Master Abdul Aziz in line with Islamic duty and Kashmiri ethos, tried to protect his neighbour; and asked the tribesmen not to harm him or his family. The tribesmen did not like intervention from Master Abdul Aziz, and killed him on spot. To these jihadis crime of Master Abdul Aziz was so severe that he did not deserve a funeral (janaza) or burial. They threw his dead body in River Neelam.
This Tribal Invasion was actively supported and directed by senior Pakistani officials both civil and military. This unprovoked attack caused enormous problems to the people of
The Maharaja was left with no choice but to accede. This accession was provisional and had to be ratified by the people of
The purpose of this conference and this booklet is not to support or oppose any ideology, but to tell people what is the root cause of our miseries and problems; and what was the status of the State of
I hope this endeavour of KNP will go some way in helping people to understand true nature of
Dr Shabir Choudhry
There are three important documents which deal with partition of
Statement made by His Majesty's Government on Transfer of Power,
‘His Majesty's Government wish to make it clear that the decisions announced above relate only to British India and that their policy towards Indian States contained in the Cabinet Mission Memorandum of 12 May 1946 remains unchanged.’
We can see that the 3rd June Statement does not provide clear answer to the position of Princely States, so we need to look at what Cabinet Mission Memorandum says.
B/ Text of Memorandum on States' Treaties and Paramountcy Presented by the Cabinet
‘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
This surely has clarified the position. In nutshell it means the Princely States will regain their rights and privileges after the lapse of paramountcy, meaning they will legally become independent. Indian Independence Act is a long document and I am producing relevant section which deals with position of the Princely States.
‘(b) the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date with towards Indian States or the rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise’ lapsed.
By the above provision all the Princely States after lapse of the British paramountcy technically and legally became independent.
What Lord Mountbatten said about Princely States?
Governor General of
There were two distinct problems that faced me. The first was how to transfer power to
I dealt first with the problem of
There had been universal acceptance among the States of the Cabinet Mission's Memorandum of 12 May and when the political parties accepted the Statement of 3 June they fully realised and accepted that withdrawal of Paramountcy would enable the States to regain complete sovereignty….
Now, the Indian
What Mohammed Ali Jinnah said about
Many Pakistanis especially who oppose Jammu and Kashmir’s separate status claim that the State should have been given to Pakistan on the basis of Two Nations Theory. They don’t know or don’t want to know that the Two Nations Theory only applied to the
Mohammed Ali Jinnah was a brilliant constitutional lawyer and he understood the legal and constitutional position of the Princely States. He strongly believed that the State of
‘That 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 States to join
“The second question that is engaging the attention of the Muslims of
Many Pakistanis ignore this statement of their Qaaid, but keep on referring to the statement which has no legal or historic significance that
What Pandit Nehru said about
Excerpts of telegram dated
26 October, 1947 from Jawaharlal Nehru to the British Prime Minister, Clement Attlee
"For Prime Minister United Kingdom from Prime Minister
We have received urgent appeal for assistance from
I should like to make it clear that question of aiding
I have thought it desirable to inform you of situation because of its threat of international complications."
Apart from that telegram Prime Minister of India, Pandit Nehru on many occasions made statements on Kashmir, and I am only producing a few here. He said:
“We are anxious not to finalize anything in a moment of crisis and without the fullest opportunity to be given to the people of Kashmir to have their say. It is for them ultimately to decide.
“And let me make it clear that it has been our policy all along that where there is a dispute about the accession of a state to either Dominion, the accession must be made by the people of that state.” JAWAHARLAL NEHRU, (Broadcast to the Nation: “All India Radio”: 2 November 1947).
“The issue in Kashmir is whether violence and naked force should decide the future or the will of the people.” JAWAHARLAL NEHRU, (Statement in Indian Constituent Assembly; 25 November 1947).
3/ “People seem to forget that Kashmir is not a commodity for sale or to be bartered. It has an individual existence and its people must be the final arbiters of their future.” JAWAHARLAL NEHRU, (Report to the All-India Congress Committee, 6 July 1951; The Statesman, New Delhi, 9 July 1951).
“Kashmir is not a thing to be bandied about between India and Pakistan but it has a soul of its own and an individuality of its own. Nothing can be done without the goodwill and consent of the people of Kashmir.” JAWAHARLAL NEHRU, (Statement in the Indian Parliament, 31 March 1955).
“We have taken the issue to the United Nations and given our word of honour for a peaceful solution. As a great nation, we cannot go back on it. We have left the question for final solution to the people of Kashmir and we are determined to abide by their decision.” JAWAHARLAL NEHRU (Amrita Bazar Patrika, Calcutta, 2 January 1952).
6/ Standstill Agreement
As noted above after the lapse of ‘Paramountcy’ – end of British Raj - the Princely States were legally and constitutionally independent, and had absolute discretionary powers to decide about future of their states.
Lord Listowel, Secretary of State for
‘From the moment the appointments and functions of the Crown Representative and his officers will terminate and the States will be the masters of their own fate. They will be then entirely free to choose whether to associate with one or the other of the Dominion Governments or to stand alone, and Her Majesty’s Government will not use the slightest pressure to influence their momentous and voluntary decision’. 2
The Maharaja of Jammu and Kashmir more than once expressed his desire not to accede to any country, as he wanted to become an independent Ruler of Jammu and Kashmir. In order to pursue his plans; and to avoid administrative collapse which could have resulted after the lapse of Paramountcy he offered Standstill Agreements to both
Telegram of Prime Minister of Kashmir to the States Relations Department, Government of Pakistan states:
A similar telegram was sent to Government of India. The Government of India did not refuse to enter in to the Standstill Agreement, but replied that ‘Government of
On the other hand the Foreign Secretary, Government of Pakistan addressed Prime Minister of Kashmir in a telegram on
‘The Government of Pakistan agree to have a Standstill Agreements with the Government of Jammu and Kashmir for the continuance of the existing arrangements pending settlement of details and formal execution of fresh agreements.’ 4
All the above proves without any doubt that the State of
1/ First attribute is that the state should have people. This attribute
2/ Second attribute of a statehood is that the state should have a defined territory. Size of the state does not matter; it could be a city state. The Maharaja of
3/ Third attribute of a statehood is that there should be a government. A government could mean one or more people who are responsible for making laws and keeping law and order. All these attributes were satisfied before the lapse of paramountcy.
4/ Fourth attribute of a statehood is that a state should have capacity and right to enter in to relations with other states. This attribute distinguishes states from lesser units like members of a federation.
The Maharaja of
Some argue that because the State of
In case of Jammu and Kashmir, India and Pakistan could not have recognised it as a sovereign state as both wanted Kashmir to join one or the other Dominion. Other countries could not recognise the State of Jammu and Kashmir so soon because situation was not clear; and the State of Jammu and Kashmir could not maintain its independence due to the tribal invasion which forced the Maharaja to accede to India, which was provisional and had to be ratified by people of the State.
8/ Tribal Invasion
Despite pressures from both
‘We intend to keep on friendly relations with both
The government of
They violated terms of the Standstill Agreements and blockaded all supplies to the State to cripple the government; and increase pressure on the Maharaja to accede to
Mehar Chand Mahajan, Prime Minister of
While both governments exchanged telegrams as to what should be done to resolve these matters, on 22 October thousands of Tribesmen fully supported by the Pakistani administration crossed over the State territory; and violated and desecrated sovereignty of the State. This action of Pakistani government is called ‘indirect aggression’ in international law, and there is ample evidence to prove Pakistani hand in this aggression.
Mohammed Ali Jinnah, as a Governor General of
Major General Akbar Khan who was assigned the task of ‘liberating’ Kashmir and who assumed the title of General Tariq – famous Muslim General who invaded Spain – reveals in his book ‘Raiders in Kashmir’ that he was called from Kashmir to take part in very important meeting. This high level meeting was held at Governor House Lahore on
He further writes: ‘My suggestion about the formation of a Liberation Committee to coordinate and direct our efforts in
Apart from that a cabinet member of the Government of Pakistan Sardar Shaukat Hyat Khan admitted in his book: ‘Seeing the Maharaja’s and
There is abundant evidence that government of
However some people argue that before the tribesmen arrived there was already armed rebellion against the Maharaja in certain parts of the State; and that some non Muslims also entered the State, especially in
True thousands of Muslims were killed in Jammu, but it is also true that Hindus were also killed, but this could not be equated to the Tribal Invasion, as the first one was a result of communal fighting which spilled over from the former British India; and the other one was an aggression to capture capital and punish the Maharaja who refused to accede to Pakistan despite all the pressure.
It is also true that some non Muslims entered to State to support the Maharaja in fight against the rebellion which was going on in certain parts of the State; but these people did not enter the State to topple the government, to invade the state or punish its Ruler.
No matter how much we dislike it, but fact remains that those non Muslims who entered the State did not violate any written agreement; they did not pose any threat to the sovereignty of the State, if anything they could have been there on the request of Kashmiri authorities to establish writ of the government.
Every State and every government has inherent right to defend its borders and establish writ of government? Prime task of every government is to protect life, dignity and property of every citizen. When his State faced unprovoked attack, was it not his responsibility to seek help to protect his government and state?
Tribesman demonstrated barbarism
Maharaja’s army was not in a position to fight back these tribesmen, and many small towns were ‘liberated’. They conquered Baramula without a problem, and problems started after capturing this important town which had population of nearly sixteen thousands and was the biggest town in the Valley after
Even at that time road to
‘A sizable number of tribesmen lost no time to turn against them (people of the town) and within few hours buildings were ablaze; entry was forced in almost all pucca houses (houses built with bricks) and its inmates were robbed on pain of death’. Nuns at the
The tribesman demonstrated equality in looting and plundering, no one was spared. Justice Saraf painfully notes: ‘There was generally no distinction between Hindus and Muslims in so far as loot and arson was concerned. For instance, a tribesman snatched a blanket of Ghani, a poor weaver with four daughters. When asked whether this was the purpose for which they had come to
Most Muslim women had left the town in fear, but one unfortunate girl was caught by a tribesman and asked her to accompany her to the camp. She knew what will happen to her, so she asked if she could bring some jewellery and cash from the house. He happily agreed and the girl went inside the house. Justice Saraf wrote: ‘While the tribesman waited outside she dashed into a large room which stocked grass for a dozen of their horses. Setting it on fire, she entrusted herself to the flames’. 11
Rasul Joo Darzi, an oil mill owner invited about two hundred tribesmen for a dinner. After the dinner, ‘honourable guests’, who some people claim went for Jihad, demanded women. The host was stunned, but luckily all young women of the household had already left for safety. Justice Saraf notes, ‘there remained only a great grand mother who was shown to them as the only female inmate and it was with great difficulty that they had left the house.’ 12
When Khan Abdul Qayyum Khan heard stories of loot and pillage, he got alarmed that people of
For three days the tribesmen looted, raped and danced on the ‘great victory’ they had achieved, and did not proceed to
The story of tribal invasion is a tragic one. This aggression which was done in holy name of Jihad brought misery and destruction to the people of
Apart from that riots in
As noted above the Maharaja of
Maharaja’s letter to Lord Mountbatten
My dear Lord Mountbatten,
I have to inform Your Excellency that a grave emergency has arisen in my State and request the immediate assistance of your Government. As Your Excellency is aware, the State of
I wanted to take time to decide to which Dominion I should accede or whether it is not in the best interests of both the Dominions and of my State to stand independent, of course with friendly and cordial relations with both. I accordingly approached the Dominions of
Afridis, soldiers in plain clothes, and desperadoes with modern weapons have been allowed to infiltrate into the State, at first in the Poonch area, then from Sia1kot and finally in a mass in the area adjoining-Hazara district on the Ramkote side. The result has been that the limited number of troops at the disposal of the State had to be dispersed and thus had to face the enemy at several points simultaneously, so that it has become difficult to stop the wanton destruction of life ad property and the looting of the Mahura power house, which supplies electric current to the whole of Srinagar and which has been burnt. The number of women who have been kidnapped and raped makes my heart bleed. The wild forces thus let loose on the State are marching on with the aim of capturing
With the conditions obtaining at present in my State and the great emergency of the situation as it exists, I have no option but to ask for help from the Indian Dominion. Naturally they cannot send the help asked for by me without my State acceding to the Dominion of
This alternative I will never allow to happen so long as I am the ruler of the State and I have life to defend my country. I may also inform your Excellency's Government that it is my intention at once to set up an interim government and to ask Sheikh Abdullah to carry the responsibilities in this emergency with my Prime Minister.
If my State is to be saved, immediate assistance must be available at
In haste and with kindest regards,
10/ Lord Mountbatten’s reply to Maharaja Hari Singh
Even with close inspection one cannot see if the Maharaja offered a provisional accession. He wrote: ‘I have no option but to ask for help from the Indian Dominion. Naturally they cannot send the help asked for by me without my State acceding to the Dominion of
The Governor General of
My dear Maharaja Sahib,
Your Highness' letter dated
Meanwhile, in response to Your Highness' appeal for military aid, action has been taken today to send troops of the Indian Army to Kashmir, to help your own forces to defend your territory and to protect the lives, property, and honour of your people. My Government and I note with satisfaction that Your Highness has decided to invite Sheikh Abdullah to form an interim Government to work with your Prime Minister.
11/ Instrument of Accession
Instrument of Accession executed by Maharajah Hari Singh on
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
And whereas the Government of India Act, 1935, as so adapted by the Governor General, provides that an
Now, therefore, I Shriman Inder Mahinder Rajrajeswar Maharajadhiraj Shri Hari Singhji, Jammu & Kashmir Naresh Tatha Tibbet adi Deshadhipati, Ruler of Jammu & Kashmir State, in the exercise of my Sovereignty in and over my said State do hereby execute this my Instrument of Accession and
I hereby declare that I accede to the Dominion of India with the intent that the Governor General of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall by virtue of this my Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State of Jammu & Kashmir (hereinafter referred to as "this State") such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India, on the 15th day of August 1947, (which Act as so in force is hereafter referred to as "the Act').
2. I hereby assume the obligation of ensuring that due effect is given to provisions of the Act within this State so far as they are applicable therein by virtue of this my Instrument of Accession.
3. I accept the matters specified in the schedule hereto as the matters with respect to which the Dominion Legislature may make law for this State.
4. I hereby declare that I accede to the Dominion of India on the assurance that if an agreement is made between the Governor General and the Ruler of this State whereby any functions in relation to the administration in this State of any law of the Dominion Legislature shall be exercised by the Ruler of the State, then any such agreement shall be construed and have effect accordingly.
5. The terms of this my Instrument of Accession shall not be varied by any amendment of the Act or the Indian Independence Act, 1947, unless such amendment is accepted by me by Instrument supplementary to this Instrument.
6. Nothing in this Instrument shall empower the Dominion Legislature to make any law for this State authorizing the compulsory acquisition of land for any purpose, but I hereby undertake that should the Dominion for the purpose of a Dominion law which applies in this State deem it necessary to acquire any land, I will at their request acquire the land at their expense, or, if the land belongs to me transfer it to them on such terms as may be agreed or, in default of agreement, determined by an arbitrator to be appointed by the Chief Justice of India.
7. Nothing in this Instrument shall be deemed to commit in any way to acceptance of any future constitution of
8. Nothing in this Instrument affects the continuance of my Sovereignty in and over this State, or, save as provided by or under this Instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.
9. I hereby declare that I execute this Instrument on behalf of this State and that any reference in this Instrument to me or to the Ruler of the State is to be construed as including a reference to my heirs and successors.
Given under my hand this 26th day of October, nineteen hundred and forty seven.
Indian complaint to the Security Council, dated I January 1948 (S/628)
The Government of
"1. Under Article 35 of the Charter of the United Nations, any Member may bring any situation whose continuance is likely to endanger the maintenance of international peace and security to the attention of the Security Council. Such a situation now exists between
"2. From the middle of September 1947, the Government of India had received reports of the infiltration of armed raiders into the western parts of
"3. The position, on the morning of 26 October, was that these raiders had been held by
"4. Immediately after the raids into
"5. Events moved with great rapidity, and the threat to the
"6. The grave threat to the life and property of innocent people in the
"7. The Government of Indian felt it their duty to respond to the appeal for armed assistance because:
"(1) They could not allow a neighbouring and friendly State
to be compelled by force to determine either its internal affairs
or its external relations;
"(2) The accession of
defence of the State.
"8. The intervention of the Government of India resulted in saving
"9. As already stated, the raiders who entered the
"10. These facts point indisputably to the conclusion
"(a) that the invaders are allowed transit across
"(b) that they are allowed to use
"(c) that they include
"(d) that they draw much of their military equipment,
transportation, and supplies (including petrol) from
otherwise actively helping them.
"There is no source other than
"11. It should be clear from the foregoing recital that the Government of Pakistan are unwilling to stop the assistance in material and men which the invaders are receiving from
"12. The Government of
"13. In order that the objective of expelling the invader from
"(1) to prevent Pakistan Government personnel, military
and civil from participating or assisting in the invasion of
"(2) to call upon other Pakistani nationals to desist from
taking any part in the fighting in
"(3) to deny to the invaders: (a) access to any use of its
territory for operations against
supplies, (c) all other kinds of aid that might tend to prolong
the present struggle.
"14. The Government of
"15. The Government of
"16. The text of this reference to the Security Council is being telegraphed to the "Government of Pakistan."
Article 257 of Constitution of
Most Pakistanis and many Kashmiris wrongly assume that
‘When the people of the State of
14/ Article 370 of the Indian constitution
Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything in this Constitution,
(a) the provisions of article 238 shall not apply in relation to the State of
(b) the power of Parliament to make laws for the said State shall be limited to,
(i) those matters in the Union List and the Concurrent List which, in consultation with the Govermnent of the State are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws far that State; and
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
Explanation For the purposes of this article, the Govermnent of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March. 1948;
(c) the provisions of article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred in the last preceding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
(3) Notwithstanding anything in the foregoing provisions of this article, the President may. by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
Excerpts of Sheikh Abdullah speech in the UN Security Council
‘…………The situation was worsening day by day and the minority in our State was feeling very nervous. As a result tremendous pressure was brought to bear upon the State administration to release me and my colleagues. The situation outside demanded the release of workers of National Conference, along with its leader, and we were accordingly set free……
Immediately we were liberated from the prison we were faced with the important question of whether
While I was engaged in these conversations and negotiations with friends from
While the raiders came to our land, massacred thousands of people -- mostly Hindus and Sikhs, but Muslims too -- abducted thousands of girls, Hindu, Sikhs and Muslims alike, looted our property and almost reached the gates of our summer capital,
I was explaining how the dispute arose -- how
It is not possible to turn back the clock of history. It is not possible to tell what exactly would have happened if 22 October 1947 was not in our history – if there was no tribal invasion.
It is true there were anti Maharaja sentiments among many Muslims, but it is also true that he was the Ruler of the State and even pro Pakistan Muslim Conference more than once expressed its loyalty to the Maharaja and expressed its desire to accept him as a Constituent Ruler of the State.
Compared to other Princely States, the State of
If there was no outside interference, no infiltration, no insurgency and no tribal invasion, then it was possible that the Maharaja could have given more rights to the people and in return they could have accepted him as a Constituent Ruler of the State with more power to the Parliament. If the above had happened then it was possible that the State would have been one political entity and possibly independent country.
Unfortunately we cannot change the course of history with ifs and buts, we have to face hard facts and situation as it is today. The fact is that today our State is forcibly divided and people suffer on both sides of the divide; and despite death of tens of thousands, rapes, destruction and misery of millions there is no light at the end of tunnel.
Today people of the State of
Despite the above, sincere and freedom loving people of the State will have to continue their struggle; and if not get independence for our next generation, at least, pass on the torch that they can continue the struggle for unification and independence of the State. END
Dr Shabir Choudhry
Spokesman KashmirNational Party
- Governor General of
Lord Louis Mountbatten's Address to a Special Full Meeting of the Chamber of Princes on India July 25 1947. Kashmiris Fight for Freedom, Justice Yousuf Saraf, volume 2, page 731
- House of Lords Official Record, 150 H.L Debate 5s.C.812
with Mountbatten, Campbell Johnson, page 223. Mission
- Ministry of Foreign Affairs, Government of
. Pakistan KashmirProblem – its legal aspects, Dr HO Agarwal, page 31 with Mountbatten, Allan Campbell Johnson, Page 229 Mission
- Raiders in
Kashmir, Maj General Akbar Khan, pages 27 to 32.
- Sirdar Shaukat Hayat Khan, The Nation that lost its Soul: Memoirs of Sirdar Shaukat Hayat Khan (
- Kashmiris Fight for Freedom, Justice Yousuf Saraf, volume 2, Page 906
- ibid, page 906
- ibid, page 906
- ibid, page 907
- ibid, page 908
- The Kashmir Saga, Sardar IbrahimKhan, page 134.