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August 17, 1999
Kashmir's accession: a Pandora's Box
It is time for Atal Behari Vajpayee to make another novel move in the national interest. He must request the Chief Justice of India to argue the country's case on Kashmir from the podium of the forthcoming General Assembly session of the United Nations.
This suggestion is prompted by two recent statements --- one by Khaled Ahmed, an allegedly "noted Pak journalist", and another by J N Dixit, a former foreign secretary of ours. While Ahmed has pronounced Kashmir's accession to India as "coercive and illegal," Dixit seems unwilling to rebut United States' doubts about India's claim to Kashmir.
And just what are America's doubts? Writing in The Indian Express last month, our ex-foreign secretary summarised the US policy on Kashmir as follows: "Kashmir may have acceded to India under the constitutional and legal provisions governing the Partition, but the accession was not a faultless, legal or impartial phenomenon. It occurred under pressure in tense circumstances. Jammu and Kashmir is a Muslim majority area, so there could be some legitimacy in Pakistan's claims, claims that find some support in the valley among Kashmiris alienated from India .... India itself had once agreed to a referendum or plebiscite. The US does not accept the Indian arguments on why a plebiscite is no longer relevant or necessary... There is a marginally discernible acceptance of Pakistani claims on some portions of Kashmir."
The above scepticism of the US regarding India's claim to the whole territory of Jammu and Kashmir as it was before India's independence can be demolished effectively only by a scholar of legal eminence who has dug deep into the history and bibliography of those troubled times. And if that scholar is a Kashmiri, what better advocate can India have to take on the USA and the rest of the UNO? That advocate, ladies and gentlemen, is Dr Adarsh Sein Anand, BSc, LLB, who went on obtain his PhD from London University in 1963 on the Constitution of Jammu and Kashmir, and who, after a distinguished career at the Bar as well as on the Bench, rose to become the present chief justice of India.
If the US reservations on our Kashmir case as enunciated by Dixit are sunk in its psyche, it is only because we never gave the brief earlier to Justice Anand. But with loud whispers being heard of the US seriously backing a proposal to set up an independent state of Kashmir under the joint purview of India and Pakistan, it is most imperative to do so now when the crisis facing India is akin to what Abraham Lincoln faced in 1861: the break-up of the Union and its momentous consequences for America as well as for the world.
President Lincoln regarded that crisis as a test of democracy and of legality. He considered any measure necessary to preserve the pattern of legality as worth taking and compromises that involved a sacrifice of principles as no longer tolerable. He therefore proceeded to wage a war against the confederate states. With its similar commitment to legality and democracy, India must unleash Justice Anand on the United Nations to justify our claim to the whole of Jammu and Kashmir wherein, currently, the territory held by us is governed by a Constitution framed by duly elected representatives of the Kashmiri people, while the people in the domain held by a fanatically Islamic Pakistan are denied fundamental rights under its Supreme Court's orders. Time has come when, to give a slight twist to President Lincoln's belief, India cannot endure permanently the consequences of a Kashmir that is half slave and half free.
With his bagful of reference books, documents and white papers, Justice Anand and his strong conviction can enlighten the world on Kashmir via the following road stops:
* While His Majesty's Government statement of June 3, 1947 provided for the plan whereby the Muslim majority area in British India would constitute the Dominion of Pakistan and the Hindu majority would constitute the Dominion of India, it also made it clear that the decision about Partition related only to British India and the Rulers of the Princely States would be restored their earlier Paramount power. In other words, the Princely States were to become 'independent' and the communal basis of the division of India would not affect those States at all.
* In the Kashmir of 1946, religion was being consciously divorced from politics. Thus, at a public meeting, when Jinnah advised the "Mussalmans" of the state to unite under one banner, the meeting broke out in pandemonium amidst shouts of "Go back Jinnah."
* In a speech in London on June 28, 1948, Lord Mountbatten narrated that had the Maharaja of Kashmir acceded to Pakistan before August 14, 1947, the future government of India had allowed him to give an assurance that no objection whatever would be raised by them. This corroborated what Vallabhbhai Patel had, a year earlier, instructed his officials not to take any action that could be interpreted as forcing Kashmir's hand and, instead, to give assurances that accession to Pakistan would not be taken amiss by India. In short, contrary to what the US believes, there was absolutely no pressure from the Indian side on the Maharaja of Kashmir.
* On the other hand, it was Pakistan that applied pressure to seek the ruler's accession. Jinnah's private secretary went to Srinagar and told the Maharaja that "he alone had the power to give accession, that he need consult nobody, that he need not delegate any of his powers to the people of the State and that Pakistan would not touch a hair of his head or take an iota of his power." Side by side, there occurred the Poonch revolt, which the Maharaja's government believed was caused by infiltrators from Pakistan. Simultaneously also came the economic blockade from Pakistan, essential commodities from Rawalpindi being denied to Kashmir on the alleged reluctance of the lorry drivers concerned. Finally, the Muslim League's newspaper, Dawn, said on August 24, 1947, "The time has come to tell the Maharaja of Kashmir that he must make his choice and choose Pakistan." That was pressure.
* On October 20, 1947, a large column of several thousand tribesmen armed with Bren guns, machine guns, mortars and flamethrowers attacked the frontiers of Kashmir. Though it was difficult to prove conclusively that the government of Pakistan was at the back of the tribal invasion, it is an admitted fact that the invaders were from Pakistani territory. Pakistan thereby violated the sacred principle laid down by the Supreme Court of America that "it is the duty of a state... to prevent its territory from being used to the injury of another state."
* Greatly alarmed at the raiders' fast approaching Srinagar and extremely nervous about his personal safety, Maharaja Hari Singh of Kashmir signed, on October 26, 1947, the Instrument of Accession to India -- the document that was stipulated by the Crown Representative himself.
* Hence, when at his meeting with Lord Mountbatten on November 1, 1948, Jinnah claimed that the accession of Kashmir to India was based on violence -- shades of what the US is implying today -- 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."
* Contrary to popular belief, there was no clear tilt towards Pakistan among the Kashmiris in those troubled times of 1947. As one Mrs Alice Thorner recorded in the Far Eastern Survey of August 11, 1948, "Both India and Pakistan had substantial support" while there was tenacious resistance against Jinnah and Pakistan by Kashmir's largest political party, the Kashmir Nationalist Conference, that was Muslim-led and largely Muslim-supported. Even as late as February 11, 1975 Sheikh Abdullah, the Lion of Kashmir, wrote a letter to India's prime minister saying, "The accession of the state of J&K is not a matter in issue. It has been my firm belief that the future of J & K lies with India because of the common ideal that we share." More than twenty years thereafter, the same sentiments are being reiterated by the present chief minister of the state, who, remember, has been democratically elected by his people.
* The Instrument of Accession executed by the Kashmir Maharaja was in no way different from that executed by some 500 other Princely States. It was unconditional, voluntary and absolute. It was not subject to any exceptions. And as Alan Campbell-Johnson wrote in 1951, "The legality of the accession is beyond doubt..."
* It would interest the Americans to note that the accession of Kashmir to India is analogous to the annexation of Texas by the USA in 1845. Threatened by the menace of predatory incursions from Mexico, independent Texas requested the US government to annex it. The US Congress sanctioned the proposal. When Mexico protested, the US government did not consider its action of annexation as a violation of any of the rights of Mexico. However, when Texas opted out of the Union in February 1861 so as to be unhindered in preserving and propagating slavery, Lincoln battled against the secession, committed as he was to freedom and democracy. If, therefore, a minority of Kashmiris, instigated and nurtured by Pakistan, is alienated against India, should India too not act like Lincoln?
* The legality of Kashmir's accession was not the point that India brought before the UN Security Council in January 1948; rather, what India raised was that the invasion from the Pakistan side had created a situation that imperiled international peace. In accepting India's complaint, the Security Council did indirectly recognise the accession of Kashmir. In fact, the question of aggression alone falls within the competence of the Security Council.
* It is true that during the later deliberations in the Security Council, India did agree to a plebiscite/referendum. But that course was to be followed only after Pakistan withdrew all its forces from the territory occupied by it and left the administration of that territory to the then government of Jammu and Kashmir. With Pakistan not having fulfilled those conditions in the last 40-odd years, where is the question of India even today being obliged to honour its commitment?
* The question of plebiscite is, moreover, entangled in a legal nightmare. M C Mahajan --Kashmir's prime minister at the time of its accession and later the chief justice of India -- has gone on record that "...the undertaking given at the floor of the Security Council is wholly ultra vires the Independence Act (of the British government) and the constitutional powers of the two Dominions" and that "it cannot be considered as binding on the State of Jammu and Kashmir which had independent status before accession."
* Even as arguments on the Kashmir issue lingered in the Security Council, two important events occurred:
( a) In June 1949 the yuvraj of Kashmir, on the advice of his council of ministers, nominated four representatives to the Indian Constituent Assembly which was then framing a Constitution for free India. At that time, it was made clear by the Kashmir government that "while the accession of the J&K State with India was complete in fact and in law," the state would be governed by its own Constitution as permitted by the Instrument of Accession.
( b) The Jammu and Kashmir Constituent Assembly -- comprising representatives duly elected in August 1951 on the basis of universal adult suffrage -- started deliberations, ratified the accession on February 15, 1954 and irrevocably incorporated the state as an integral part of the Union of India in the non-amendable Section 3 of its Constitution that came into effect from January 26, 1957.
Both the above series of acts by the state of Kashmir did not at all violate its legal status vis-a-vis India or the UN Security Council. Moreover, no one, not even the worst critic, ever doubted the representative nature of Jammu and Kashmir's Constituent Assembly. Because self-determination is a one-time slot, and because the elected representatives of the people of Jammu and Kashmir had taken a final decision regarding their future status, the question of any further ''self-determination'' or ''plebiscite'' does not arise either legally or morally. Therefore, it must be recognised that the Security Council was exceeding its reach with its plebiscite proposal. More importantly, the secession of Jammu and Kashmir from India has become repugnant to its own Constitution of 1957!
* Regarding the idea of carving out a separate independent state of Jammu and Kashmir, the view of James Ferguson should be heeded. In his book of 1961, Ferguson stated, "It was the whole State of Jammu and Kashmir that acceded to India, and although some regions had broken away, they had done so illegally, and their illegal action could not confer any right on Pakistan."
* The situation today therefore is that if the accession of Kashmir is reopened, it would imply going 52 years back and reopening the whole question of the independence of India and Pakistan for the simple reason that the same document as provided for the accession of the Princely States, granted independence to India and Pakistan. That reopening and dividing Kashmir on the basis of religious compulsion will surely lead to a replay of the communal holocaust of 1947.
Is the USA or the UNO prepared to risk open that Pandora's Box? Justice Anand's address to the General Assembly session in September will surely pre-empt that flashpoint, nuclear or otherwise, and help the world to drill reality into Pakistan's psyche. But will Vajpayee display the flair to permit that address?
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