Legal position of Jammu and Kashmir - Which
part is not occupied?
Dr Shabir Choudhry
21 April 2019
1. A
question that some people have repeatedly asked me, and which I have been
deliberately avoiding is the one below:
‘Which part of Jammu and Kashmir is not occupied?’
2. People
from my party, United Kashmir Peoples National Party, and some belonging to
other parties have also asked me to clarify this important question. One Azad
Kashmiri said:
‘I have seen your writings, where you say that
the entire State of Jammu and Kashmir is occupied. Also, you, at times, write,
Indian occupied Jammu and Kashmir and Pakistani occupied Jammu and Kashmir.
Whereas, views of some of your party colleagues are different. Can you please
clarify this ambiguity?’
3. Views
expressed below are mine, and not that of the UKPNP. I am only presenting a
legal position, as it is understood by me, and
the international community. I am not advocating or supporting positions
of New Delhi or Islamabad on the Jammu and Kashmir dispute.
Two
Nation Theory and Princely States
4. First
point we need to understand is that the Two Nations Theory did not apply to
Jammu and Kashmir, and other Princely States. This means, Jammu and Kashmir State
did not belong to Pakistan just because it had a Muslim majority.
5. The
Crown Representative, and Governor General of undivided India, Mountbatten
asserted that after lapse of the British Paramountcy, the Princely States will
legally and technically become independent. This view was supported by
constitutional experts like Mohammed Ali Jinnah, founder of Pakistan. 1
6. The
government of Pakistan by entering in to a bilateral agreement with State of
Jammu and Kashmir acknowledged this fact that Jammu and Kashmir was a separate
political entity. This agreement with Pakistan was known as a Standstill Agreement.
7. Pandit
Nehru, on behalf of the Indian Congress wanted the people of Princely States to
decide future of their states. Mohammed Ali Jinnah, on behalf of the Muslim
League insisted that the Rulers of the Princely States should take this
decision.
8. Eventually,
Jinnah, Mountbatten and Nehru unanimously agreed that Rulers of the Princely
States should decide future of their states, by taking geographical position
and composition of their subjects in to consideration.
9. The
State of Junagarh had no land link with Pakistan. Its Ruler was a Muslim; and
population was nearly 80% non-Muslim. Because the Two Nations Theory was not
applicable to the Princely States, and the Rulers were permitted to decide
future of their states, the Ruler of Junagarh decided to accede to Pakistan.
Mohammed Ali Jinnah knew the legal position of the Princely States, so without
any hesitation he accepted that accession.
Was
accession provisional?
10.
On 22 October 1947,
Pakistan unilaterally violated the Standstill Agreement and launched a tribal
invasion to conquer Kashmir. This aggression resulted in death of tens of
thousands of innocent people, kidnapping and rapes of women. The Ruler of Jammu
and Kashmir asked India for help.
11.
An independent India
also knew that Jammu and Kashmir was a separate political entity, so they
refused to help, unless the Maharaja of Jammu and Kashmir acceded to India. In
order to save his State and his people, the Maharaja Hari Singh acceded to
India on 26 October1947. After this treaty, the
Indian troops landed in Kashmir on the morning of 27 October 1947.
12.
Here there is some
confusion and controversy. Majority of Muslim citizens of Jammu and Kashmir
believe that the accession to India was ‘provisional’. However, nowhere in the
Instrument of Accession it says it is provisional; although it was related to
only 3 subjects, namely, Defence, Foreign affairs and Communication.
13.
It was Mountbatten who
made it ‘provisional’. As a Governor General of an independent India, he
accepted the accession of Jammu and Kashmir. However, in his letter to the
Maharaja Hari Singh he said accession was accepted ‘provisionally’; and that it
has to be ‘ratified’ by the people of Jammu and Kashmir once the invaders are
driven out and peace and stability returns. 2
14.
It must be pointed out
that the Maharaja Hari Singh acceded unconditionally. Why Mountbatten added the
word ‘provisional’, and why he mentioned about ‘ratification’, no one knows.
This is a matter of academic debate.
15.
There were more than
562 Princely states, and accession of no other state was accepted
‘provisionally’. The word provisional did not appear anywhere in the Instrument
of Accession document. To obtain accession of the respective Princely states,
both countries were ruthless. Where the Rulers were unwillingly to accede,
their arms were twisted to obtain the accession.
16.
Mountbatten’s much
publicised visit to Kashmir did not yield the desired results. Despite all the
pressure from many sides, the Maharaja Hari Sing refused to accede to any
country. To rub salt in the wounds of the proud Royal Governor General, he did
not even meet Mountbatten before he left Kashmir, by saying he was not well.
17.
In my view, Mountbatten
took that as an insult. He wanted to punish two people, Mohammed Ali Jinnah and
Maharaja Hari Singh for causing embarrassment to him. Before leaving for
Srinagar, Mountbatten assured top Congress leaders that he will be able to
persuade Haring Singh for an accession. Hari Singh’s ambition was to remain
independent, and his behaviour frustrated Mountbatten.
18.
Also, Jinnah frustrated
Mountbatten, and his pride was hurt again. He had communicated to London that
he would become a Joint Governor General of both India and Pakistan, only to be
embarrassed later on, when Jinnah said he wanted to become Governor General of
Pakistan.
19.
In my opinion, the word
‘provisional’ was added by Mountbatten to ensure that the dispute continues in
the Indian Sub-Continent. His strategy worked, and India and Pakistan, and
especially people of Jammu and Kashmir continue to bleed since 1947.
20.
This view is further
supported by the fact that Mountbatten was the one who persuaded Prime Minister
Nehru and Prime Minister Liaquat Ali in the third week of December 1947, that
the Jammu and Kashmir dispute should be taken to the UN Security Council.
21.
Mountbatten was to
remain a Governor General of an independent India for a short while, and the
leaders of India and Pakistan had to deal with the mess he was to leave behind.
I am sure both Liaquat Ali and Nehru did not know the mechanism of the UN,
whereas Mountbatten and the British knew it. The Jammu and Kashmir dispute was
taken to the UN Security Council under Chapter 6, which has only an advisory
role.
22.
No resolution passed by
the Security Council under chapter 6 can be enforced. The Chapter 6 urge
parties to the dispute to: ‘seek
a
solution by negotiation, enquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice.’
23.
If the Kashmir dispute had
been taken to the UN Security Council under chapter 7, then the situation would
have been totally different. The Chapter 6 is good to drag on the dispute. If
Nehru had known all this, he would have invoked Chapter 7, and not Chapter 6 of
the UN.
24.
It must be pointed out
that Pakistan was not a party to the dispute before it was taken to the UN
Security Council. Even after inclusion of the words ‘provisional’ and ‘ratification’,
the matter was between the government of India and people of the Jammu and
Kashmir. Technically people of Jammu and Kashmir had 3 options: they could have
‘ratified’ the ‘accession’; rejected the ‘accession’ or perhaps re- negotiated
terms of the ‘accession’.
25.
However, the Pakistani
military attack supported by the local collaborators changed the situation. The
government of India was under obligation to forcefully drive out the attackers
from the soil of Jammu and Kashmir and save life, liberty, property and honour
of the people.
26.
If the Kashmir dispute
was not internationalised by taking it to the UN Security Council, then because
of military strength, huge size and resources, India would have driven out the
invaders. That would have meant no role for Pakistan, and strategically
important State of Jammu and Kashmir would have gone under the control of
India. That was not in ‘national’ interests of the British and the West because
of the ‘Cold war’ and strategic interests in the region.
27.
Already with help of
Major Brown, Gilgit Scouts and some local collaborators they took over
strategically important, and resource rich areas of Gilgit Baltistan. It was
essential to cut out a role for Pakistan in Jammu and Kashmir dispute. Once the
matter was referred to the UN Security Council, Pakistan ‘legally’ became a
party to the dispute, because they were called by the Security Council to
respond to the charge sheet presented by India.
28.
The people of Jammu and
Kashmir should have been the principal party to the dispute, they were side
lined; and sadly, India and Pakistan became the parties who were to decide what
is good for the people of Jammu and Kashmir.
29.
As pointed out earlier,
Pakistan had no legal standing in this matter. The issue was between India and
the people of Jammu and Kashmir. However, by one master stroke, a role was cut out
for Pakistan; and Subjects of the Maharaja Hari Singh continue to bleed and
suffer. The Indian Sub-Continent still remains volatile, full of hatred and
underdeveloped.
30.
Also, it has been
explained that the Instrument of accession document did not have a word
‘provisional’. This was first used by Mountbatten in his letter to Maharaja
Hari Singh. Subsequently, Prime Minister Nehru and other Indian officials used
the word ‘provisional’ so many times; and agreed to hold a plebiscite to
determine the future of Jammu and Kashmir State. It was clear from their actions, that even they did
not regard the accession as final. This ambiguity immensely weakened the Indian
stand on Jammu and Kashmir, and strengthened the Pakistani hand.
Who is
aggressor in Jammu and Kashmir?
31.
Despite the above, the
Security Council Resolution of 13 August 1948, clearly demanded Pakistan to
withdraw all the troops, withdraw all tribesmen and all Pakistanis who entered
Jammu and Kashmir for the purpose of fighting. The Resolution asked India to
withdraw ‘bulk’ of troops, after Pakistan’s complete withdrawal.
32.
This practically meant
the International community regarded Pakistan as an aggressor, that is why Pakistan
was asked to vacate all the areas. India’s presence in Jammu and Kashmir was
perceived as a ‘legal one’; and that is why India was permitted to keep troops
for the purpose of law and order, and to save people from any future adventure
from Pakistan or from any other country.
33.
India could be
criticised and condemned on the issue of human rights abuses; however, despite
many mistakes, India’s legal position on Jammu and Kashmir is still strong.
34.
Ideologues of redundant Two Nations Theory and some Kashmiri
collaborators claim that after signing the Standstill Agreement with Pakistan,
the Maharaja Hari Singh lost the right to sign an Instrument of Accession with
India.
35.
This is not true. At best one can call it a Pakistani propaganda to fool
their own people and Muslims of Jammu and Kashmir. It must be pointed out that
the Maharaja Hari Singh offered to have a Standstill Agreement with both India
and Pakistan. Whereas, Pakistan immediately accepted it, Government of India
asked Hari Singh to discuss this matter further.
36.
Due to lack of
knowledge, inherent bias and myopic view on different issues, many of us
erroneously believe that India’s oppression, which is mainly due to sponsored
proxy war and militancy, eliminate India’s legal standing on Jammu and Kashmir.
37.
That is not true. I can
condemn India’s human rights abuses. However, is it not a fact that human
rights abuses are being committed in those areas where there is militancy. If
India’s para military forces were trigger happy, and enjoyed committing human
rights abuses in Jammu and Kashmir, then why are they not doing that in a
province of Ladakh and province of Jammu?
38.
Critics or those who
accept no logic that differs with their perception, claim that Indian forces
only want to kill and oppress Muslims. This claim does not hold water. Ladakh
has two districts, one is Kargil, which has a clear Muslim majority. Rational
people ask why there is no oppression in Kargil?
39.
Furthermore, why there
is no oppression in Muslim dominated areas of Jammu Province? It is because
there is no militancy going on there. When militant actions take place in these
areas, troops go there in search of militants, and some human rights abuses do
take place.
40.
Sadly, where ever there
is militancy and terrorism, some human rights abuses take place; and that happens in every country, including
India, Pakistan, America, China and others.
41.
When Pakistani
sponsored militancy started in the Kashmir Valley, there were massive human
rights abuses in the Valley of Kashmir in early 1990s. Now militancy under
somewhat control, the human rights abuses are only restricted to those areas of
the Valley of Kashmir where there is some militancy going on.
42.
Rational of all this is
that we must struggle peacefully, and must stop using guns and exploding bombs,
the human rights abuses will stop too. If we think we have a God given right to
borrow guns and bombs from Pakistan, and kill police and para - military troops
in Jammu and Kashmir, but they should not use their guns against us, then we
are fools. If we want them to stop using their guns and stop abusing human
rights, then we have to stop using our guns.
43.
I agree that Indian
response to militancy, and proxy war was disproportionate, and cannot be
justified. Similarly use of pellet guns against children and civilians
cannot be justified, however, this does
not change the legal position of India on Jammu and Kashmir dispute.
Right
of self-determination or a right of accession
44.
It was prerogative of the
Maharaja Hari Singh to decide future of Jammu and Kashmir. He did that on 26
October 1947. His decision was ‘deliberately’ made controversial by
internationalising the Jammu and Kashmir dispute, and by making Pakistan a
party to the dispute.
45.
The International body, the UN Security Council decided that people of
Jammu and Kashmir should take a decision on ‘future’ of Jammu and Kashmir.
Unlike general understanding of Muslims of Jammu and Kashmir and Pakistanis,
the UN Security Council never talked about right of self-determination of
people of Jammu and Kashmir. They talked about a plebiscite.
46.
However, after visiting the Indian Sub - Continent, the UN Commission
for India and Pakistan, proposed a resolution which was adopted on 13 August
1948. In part 3 of this Resolution, it was stated that:
‘The
Government of India and the Government of Pakistan reaffirm their wish that the
future status of the State of Jammu and Kashmir shall be determined in
accordance with the will of the people..’
47.
The term ‘future status’ could
mean:
1/ Ratification of accession to India,
2/ accession to Pakistan or an independent Jammu and Kashmir.
Fearing emergence of an independent Jammu and Kashmir, Pakistan
government proposed that the term ‘future status’ be replaced with the
following:
‘The question of the accession of the State of Jammu and Kashmir to
India or Pakistan will be decided through the democratic method of a free and
impartial plebiscite;’
48.
India did not oppose this proposal, and no loyal son of Jammu and
Kashmir was there to protect and defend interests of Jammu and Kashmir; and as
a result, the above amendment was adopted in the next UN Security Council
Resolution of 05 January 1949. Pakistan claims to be a well-wisher, and an
advocate of people of Jammu and Kashmir; and yet they ensured that people of
Jammu and Kashmir must not become independent, and get their national identity
and sovereign status.
49.
Pakistan, not only refused to withdraw troops from the territory of
Jammu and Kashmir, as directed by the UN Security Council Resolution, but also
to rub salt in wounds of people of Jammu and Kashmir, Pakistan propagated that
what was available to people of Jammu and Kashmir was a right of
self-determination.
50.
What was made available to people of Jammu and Kashmir in the Resolution
of 05 January 1949, was not a right of self-determination, but a right of
accession. People of Jammu and Kashmir were told you can become a citizen of
India if you wish, or you can become a citizen of Pakistan, but you CANNOT
become independent.
Conclusion
51.
I have explained the
legal position as I understand it. This should not be construed as my wish or a
desire. I have always, since 1973, worked for United and independent Jammu and
Kashmir with a secular society. This is also the position of United Kashmir
Peoples National Party. I as an individual, and the UKPNP as a political party
frequently come under attack, mainly because we promote an ideology that
directly challenges narrative of Pakistan and their proxies and extremist
groups.
52.
Criticism and a barrage
of unfounded attack on us from Islamabad and their proxies only confirm this
fact that the forces of occupation, extremism and violence regard us a threat
to their agenda on Jammu and Kashmir.
53.
All those who believe
that religion is a personal matter of citizens, and the State of Jammu and
Kashmir belongs to all of us have no choice, but to unite and fight back forces
of extremism, terrorism, intolerance and religious hatred. They are not only threat
to peace and stability of Jammu and Kashmir, but also a serious threat to the
entire region.
Reference:
1. Speech
of Mountbatten to the Chambers of Princess on 25 July 1947.
2. See
text of Instrument of accession:
Writer is a renowned writer and author of
many books. He is also President Foreign Affairs Committee of UKPNP; and
Chairman South Asia Watch, London.
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