Kashmir – An Illegal Part of India

In 1947, Britain decided to re-linquish its empire in the subcontinent. The tripartite agreement of Britain, the National Congress (representing Hindus) and the Muslim League (representing Muslims) partitioned British India into two independent countries: one compromising Hindu-majority areas which retained the name ‘India’ and the other including Muslim-majority areas which named itself Pakistan. As this settlement also meant the end of British principality over the autonomous principalities called States, these were supposed either to merge with one of the two countries in accordance with the wishes of the people and the principle of partition (Hindu-majority States with India and Muslim-majority States with Pakistan). Kashmir was a predominantly Muslim-majority State; besides, it was far more contiguous with Pakistan than with India. It was therefore, expected to accede to Pakistan.

But the ruler of State, Maharajah, was Hindu and he rejected the first option. Faced with the insurgency of his people, which had been joined by a few hundred civilian volunteers from Pakistan, he fled the capital Srinagar, on 25 October 1947. India sent its army to crush the rebellion. The Indian army arrived in Srinigar even before the Mahrajah could sign the succession papers. The papers presented by India in UN has date but no signatures of Mahrajah. So India has no right to claim Kashmir even by this fake claim. Pakistan should go to International Court of Justice to prove this document as fake on which India, even side-lining the wishes of the local people, claims it as ‘integral part’ of India.

At the same time, India also annexed two other principalities or States (Hyderabad and Junagadh) which, in contrast with Kashmir, had Hindu majorities but Muslim rulers. While doing this, India has presered the principle that in case of conflict between the ruler’s and the people’s wishes, the latter must prevail. So India’s claim on Kashmir is proved illegal by her own accepted principle. The people’ wishes were and even now are to join Pakistan. Kashmiris for the last half century have been asking for plebiscite to express their determination. This outstanding plebscite is an unfinished agenda of 1947 partion of sub-continent. They have scrificed more than hundred thousand lives to fight for their legal right of self-determination.

Between October and December of 1947, the Azad Kashmir forces successfully resisted India’s armed intervention and liberated one-third of the State. Realising it could not quell the resistance, India brought the issue to the United Nations in January 1948. As the rebel forces had been undoubtedly joined by volunteers from Pakistan, India charged Pakistan with having sent “armed raiders” into the State and urged that the United Nations calls upon Pakistan to withdraw them. This was coupled with the assurance that, once the “raiders” were withdrawn, India would enable a plebiscite being held under impartial auspices to decide Kashmir’s future status. In reply, Pakistan charged India with having manoeuvred the Maharajah’s accession through “fraud and violence” and with collusion with a “discredited” ruler in the repression of his people. Pakistan’s counter complaint was also coupled with the proposal of a plebiscite under the supervision and control of the United Nations to settle the dispute.

The Security Council discussed the question exhaustively from January to April 1948. It came to the conclusion that it would be impossible to determine responsibility for the fighting and futile to blame either side. Since both parties desired that the question of accession should be decided through an impartial plebiscite, the Council developed proposals based on the common ground between them. These were embodied in the resolution of 21 April 1948 envisaging a cease-fire, the withdrawal of all outside forces from the State and a plebiscite under the control of an administrator who would be nominated by the Secretary General. For negotiating the details of the plan, the Council appointed a five-member Commission (including the United States) which proceeded to the Subcontinent in July.

The United Nations Commission for India and Pakistan (UNCIP) worked out the concrete terms of settlement in close and continuous consultations with both sides. These were crystallized in two resolutions adopted on 13 August 1948 and 5 January 1949. As both governments formally signified their acceptance of the Commission’s proposals, these constituted an international agreement
as binding as a treaty. A cease-fire was immediately enforced. The Commission then started negotiations to draw up a plan for the withdrawal of Indian and Pakistani armies from the State in a manner and sequence that would not cause disadvantage to either side or imperil the freedom of the plebiscite. Meanwhile, a distinguished American, Admiral Chester Nimitz, was designated as, Plebiscite Administrator.

Progress towards a solution was, however, blocked by India’s refusal to accept that the withdrawal of forces on the two sides should be balanced and synchronized. When President Truman (of US) and Prime Minister Attlee (of Britain) appealed that the points at issue be submitted to arbitration by the Plebiscite Administrator designate and India turned down the appeal, the Commission terminated its mediating mission. From 1950-1957, a succession of Presidents of the Security Council or United Nations representatives – General MacNaughton (Canada), Owen Dixon (Australia), Frank Graham (United States) and Gunnar Jarring (Sweden) made intense efforts to secure India’s agreement to stage-by-stage demilitarization of the State so that a free plebiscite could be held. They all failed, as did the informal mediators like the Prime Ministers of the Commonwealth countries.

A development that hardened India’s stance was Pakistan’s joining military pacts sponsored by the United States. From 1955, India took the position that, in view of this alliance, it could no longer
countenance the withdrawal of its forces from Kashmir. To repeated pleas that the withdrawal was not meant to be unilateral in any case but would be coordinated with that by Pakistan, its response remained immovably negative. India found a ready supporter for this position in the Soviet Union which, after 1958, blocked every attempt by the Security Council to unfreeze the situation and implement the peace plan originally accepted by both parties. This caused the paralysis of the Security Council on Kashmir – a condition which lasted from 1958 to this day.

On 2 November 1947 Prime Minister Jawaharlal Nehru broadcast on All India Radio: “We have decided that the fate of Kashmir is ultimately to be decided by the Kashmiri people. That pledge we have given not only to the people of Kashmir but to the world. We will not, and cannot, back out of it. We are prepared, when peace and law and order have been established, to have a referendum held under the auspices of the United Nations. We want it to be a fair and just reference to the people, and we shall accept the verdict. I can imagine no fairer and juster offer.”

Since the outcome of such a plebiscite is obvious, India has avoided it under one excuse or the other all these years. The time has come for Indian leadership to realise that a plebiscite under UN observers is the only natural solution to the Kashmir dispute.

The ideal solution would be to hold a plebiscite in the entire state, including the Indian and the Pakistani sides, under U.N. supervision as promised in the UN resolutions of 13 August 1948, 5 January 1951, and 24 January 1957. Since the outcome of such a vote is obvious, India has avoided it under one excuse or the other all these years.

President Musharraf should reiterate on option of plebiscite. The acceptance of any other option which are listed below means that Pakistan has given up its right over Kashmir.

If Pakistan can not reach on an agreement on Plebiscite, then it should leave the right to accept or reject any other option to Kashmiri people. This will also put Pakistan out of the issue for which it has suffered a lot during these 54 years. Let the Kashmiri people continue the fight for their right of self determination.

Pakistan should not be trapped by endorsing India’s effort to re-write the history, whereas all the emphasis should be on re-iterating the history. The true historical facts have evidence of India’s oppressive rule over State of Jammu and Kashmir.

So President Sahib, please re-iterate the history which will re-write the geography of the sub-continent.