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The Rediff Special/ Arvind Lavakare

The Plebiscite Virus

Kashmir: The Real Story

The biggest hurdle to resolving the Kashmir issue has been that business of ''plebiscite'' which Pakistan as well as other India baiters (including Indians!) have often raised. Indeed, there are young, but byline, journalists and editors in our country who seem to have become prey to the plebiscite virus.

The origin of that apprehension can be traced to the letter of October 27, 1947 which Lord Mountbatten wrote to Maharaja Hari Singh of Kashmir after the latter had signed his acceptance on the Instrument of Accession on October 26, 1947.

According to Justice Anand, that letter of Mountbatten was a personal letter, and it was in reply to the Maharaja's letter of October 26 stating that ''a grave emergency'' had arisen in his state and acknowledging that the Indian Dominion ''cannot send the help asked for'' without his state acceding to India.

Accordingly, to that letter of his of October 26, the Maharaja attached the Instrument of Accession for acceptance. In his letter Mountbatten wrote, '' ... my government has decided to accept the accession of Kashmir state to the dominion of India. In consistence with their policy that in the case of any state where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the state, it is my government's wish, that, as soon as law and order have been restored in Kashmir and its soil cleared of the invader, the question of the state's accession should be settled by a reference to the people.'' (emphasis of Justice Anand).

That statement of Lord Mountbatten was to evoke an almost violent reaction from M C Mahajan, who was the prime minister of Kashmir at the time of its accession and later became Chief Justice of India. In his Accession of Kashmir to India (The Inside Story), the learned judge wrote: ''The Indian Independence Act did not envisage conditional accession. It could not envisage such a situation as it would be outside the Parliament's policy. It wanted to keep no Indian state in a state of suspense. It conferred on the rulers of the Indian states absolute power in their discretion to accede to either of the two dominions. The dominion's governor general had the power to accept the accession or reject the offer but he had no power to keep the question open or attach conditions to it...''

Apart from the legal point above, Justice Anand considers the effect of the ''wish'', expressed in Mountbattan's letter. ''In expressing the wish,'' says Justice Anand, ''Lord Mountbatten was probably expressing a pious hope -- a declaration without legal effect. At best it was a declaration of the policy of the government of India at that moment. But even if it was only that, there was never any agreement between the ruler of Kashmir and the government of India regarding the wishes of the people. It was a unilateral declaration -- a declaration to which the maharaja was never asked to agree.

For any contract to be binding, law requires offer and acceptance. In this case it would seem that Lord Mountbatten made an offer but the Maharaja did not signify his acceptance... Such an expression of policy or opinion cannot be regarded as a condition attached to acceptance of Kashmir's accession. It cannot be regarded as a proposal within the meaning of the Indian Contract Act.'

Moreover, Lord Mountbatten's letter spoke of the policy of a reference to the people ''where the issue of accession has been the subject of dispute.'' Now, with regard to Jammu and Kashmir in October 1947, there was absolutely no dispute about its accession.

Neither Pakistan nor India was laying a legitimate, contestable claim to the state. Neither India nor Pakistan was disputing the maharaja's sovereign right to take the decision he wanted. If there were at all any ''dispute,'' it existed only in the maharaja's mind as to whether to accede to India or to Pakistan or remain independent.

Circumstances compelled his dithering mind to take the decision, but he was not bound to obtain his people's concurrence of it, before or after. In a monarchical form of government, it is the monarch who personifies and represents the state. That too was not in dispute.

What is also not in dispute is the Himalayan bungle created by Nehru's government of the time. On January 27, 1948, India and Pakistan submitted a draft proposal to the president of the United Nations Security Council on the appropriate methods of solving the Kashmir dispute.

According to the Security Council verbatim reports cited by Justice Anand, the Indian representative on the floor of the Security Council made it appear that the final status of Kashmir was to be determined by plebiscite although the legal nature of Kashmir's accession was the foundation of India's case.

Pakistan has since seized upon and used this point for its benefit. The plebiscite virus was sown and quickly took root.

According to a philosophy and social action publication of 1994, India's Commitment to Kashmir, edited by Dhirendra Sharma, there are several statements made by Jawaharlal Nehru to the effect that the question of Kashmir's accession to India must finally be decided in accordance with the wishes of the people.

These cover a period between October 27, 1947 and August 7, 1952. In one of these statements, Nehru made reference to a ''referendum'' and in another to a ''plebiscite.'' (The source of all these statements is not mentioned in the publication available in Centre For Education And Documentation, Bombay).

While Nehru may well have made all the above referred statements in his wonted moralistic-cum-idealistic vision of world affairs, there is reason to wonder today whether, in those turbulent five years of India's independence, he had grasped the factual and legal position of Kashmir's signed accession to India.

Take, for instance, the broadcast of November 2, 1947 he made on All India Radio. According to the publication mentioned above, Nehru is supposed to have said that ''where there is a dispute about the accession of a state to either dominion, the decision must be made by the people of the state. It was in accordance with this policy that we added a proviso to the Instrument of Accession to Kashmir. ''(emphasis added).

The above statement stands faulted on two counts. Firstly, Kashmir's legal accession to India was never in dispute. Pakistan never challenged the legality in the security council debates.

Secondly, Nehru was wrong to believe that the Instrument of Accession which the maharaja of Kashmir signed on October 26, 1947 contained a special proviso. We have Justice Anand's doctoral thesis in support of this refutation of Nehru's understanding.

Justice Anand has stated that ''this Instrument of Accession (signed by the maharaja of Kashmir) was in no way different from that executed by some 500 other states. It was unconditional, voluntary and absolute. It was not subject to any exceptions. As such, it bound the state of Jammu and Kashmir and India together legally and constitutionally.'' (emphasis in original).

Did Nehru have the legal authority to agree to a plebiscite proposal in the security council? Did he have the constitutional authority to commit India to a plebiscite as he is reported to have done in his address to our Parliament on June 26, 1952?

The answer given by M C Mahajan, former chief justice of India, is revealing. In his Accession of Kashmir to India (The Inside Story), the learned chief justice stated: ''I do not see what constitutional power the Indian government had to enter into such an agreement with Pakistan on the floor of the Security Council and how such an understanding can be considered as binding ... on the state of Jammu and Kashmir which had independent status before accession.''

Justice Anand puts a seal on the subject by opining that with the accession of Kashmir to India being constitutionally valid, ''it excludes the possibility of a plebiscite for determining the status of Kashmir.''

Plebiscite Commitment is Conditional and Illegal

The Rediff Specials

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