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The Rediff Special/ Arvind Lavakare

Legality of Accession Unquestionable

Kashmir: The Real Story

Though the Instrument of Accession executed on October 27, 1947 between the ruler of Kashmir and the Governor General of India was a legal act, Pakistan chose to refute it more than once almost from day one. Thus, on November 1, 1948, in his meeting with Lord Mountbatten, Mohammad Ali Jinnah, Pakistan's founder, claimed that the accession of Kashmir to India was based on violence. Mountbatten replied, 'the accession had indeed been brought about by violence, but the violence came from tribesmen, for whom Pakistan, not India, was responsible.'

Liaquat Ali Khan, Pakistan's first prime minister, was quoted in Dawn newspaper of November 5, 1947, as saying: 'We do not recognise this accession. The accession of Kashmir to India is a fraud, perpetrated on the people of Kashmir by its cowardly ruler with the aggressive help of the Indian government.'

Twelve days later, the Pakistan newspaper, which was the official mouthpiece of the Muslim League, quoted Liaquat Ali Khan as saying, 'There is not the slightest doubt that the whole plot of accession of Kashmir to India was preplanned. It cannot be justified on any moral or political grounds. On March 6, 1951, the above thesis was repeated on the floor of the UN Security Council by Sir Zafarullah Khan, Pakistan's foreign minister. In support of his argument, he alleged that the Maharaja had no authority to sign the Instrument of Accession as he had lost the confidence of his people.'

Justice Anand dismisses the above stand by saying, 'It is difficult to regard the Pakistani charges as anything more than abuse.' And then goes on to demolish the charges on legal grounds. Fraud, he says, is causing a person to do something by deceit, but 'there is no evidence of any deceit practised by India on Kashmir.' He goes on to say, 'If by fraud it is meant that the Government of India should not have accepted the accession made by the ruler of Kashmir unless it had been endorsed by the people, it is submitted that the Government of India had no right to question the right of the Maharaja to sign the Instrument of Accession, ass he alone had the right and power to take a decision for his state. To have asked the ruler to establish his right to sign the Instrument of Accession would have meant that the Government of India was going to meddle with the internal policies of the state. Law does not permit any such intervention in the affairs of another state.'

However, cynics have continued to doubt the legality of Kashmir's accession. A historian, Alastair Lamb, in Birth of A Tragedy: 1947 claimed 'On the present evidence it is by no means clear that the Maharaja (of Kashmir) ever did sign an Instrument of Accession... The Instrument of Accession may never have existed...' He also states '' To judge from the White Paper (on Jammu and Kashmir issued by the Government of India, 1948) an Instrument of Accession may not have been signed by March 1948...'

Finally, he also challenges the Indian contention that the Maharaja of Kashmir signed the Instrument of Accession on October 26, 1947, one day before the Indian troops landed at Srinagar. In support of his rebuttal, Lamb states that i. during October 26, 1947 the Maharaja was travelling by road from Srinagar to Jammu, and ii. the account of V P Menon, secretary of the Ministry of States, in his book The Integration of Indian states, London, 1950, that he was actually present when the Maharaja signed the Instrument is simply not true because many observers noted Menon's presence in Delhi on October 26.

Let's sort out the dates first. Justice A S Anand's book mentions that 'To save his life, Maharaja Hari Singh left Srinagar on 25th October, and went to Jammu, the winter capital of Kashmir.' Note Justice Anand's date: October 25, not October 26 as mentioned by Lamb. Further, according to Jagmohan V P Menon was in Srinagar on October 25, 1947 to assess the situation caused by Srinagar being plunged into darkness consequent to the capture a day earlier of the Mohara power station by the raiders from Pakistani territory; nothing 'the stillness of the graveyard all round', Menon proceeded to have discussions with the Maharaja.

So who is right? A law graduate who did his doctoral thesis at London university based on authentic material in the British Museum library and the Indian high commission in London, and a senior official of the Government of India intimately connected with the Kashmir issue, or a historian who draws conclusions without a semblance of concrete evidence in support?

Alastair Lamb's credibility stands destroyed by an article by political commentator, Sumant Bannerjee. In that article Bannerjee states that the same documents which Lamb uses selectively to prove that the central government in Pakistan was not officially a party of the raid in Kashmir were used by Ayesha Jalal, a Pakistani political scientist, to arrive at a different conclusion altogether! Thus, in her The State of Martial Rule, 1990, Jalal asserts that, 'The government of Pakistan with the connivance of the frontier ministry was actively promoting the sentiments that had encouraged the tribesmen to invade Kashmir.'

She then adds that 'Pakistani officers, conveniently on leave from the army, were certainly fighting alongside the Azad Forces -- a conglomerate of Kashmiri Muslims and Pathani tribesmen.'

As regards Lamb's outrageous scepticism regarding the very existence of an Instrument of Accession and the Maharaja of Kashmir ever having signed it, he is palpably ignorant of the letter which the Maharaja sent on January 31, 1948 to India's home minister. In that letter, cited on page 93 of Jagmohan's earlier referred book, the Maharaja wrote, inter-alia, 'There is an alternative possible for me and that is to withdraw the Accession...'

Would Lamb have us believe then that the Maharaja of Kashmir threatened to withdraw something which he had not signed in the first place? Would Lamb also have us believe that Lord Mountbatten, India's governor-general then, and Nehru's government were taking the British government, the Pakistan government and the entire UN Security Council for a ride over the Instrument of Accession signed by the Maharaja of Kashmir?

Justice Anand's doctoral thesis would seem to have sealed it all by quoting from Alan Campbell-Johnson's Mission With Mountbatten, (1951), wherein the Englishman says 'The legality of the accession is beyond doubt... It should be stressed that the accession has complete validity both in terms of the British government's and Jinnah's expressed policy statements.'

Equally importantly, as will be proved later in this series, even Kashmiris approved of their state's accession to India.

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