Kashmir is a simmering cauldron. For about seven decades, India denied Kashmiris’ their right of self-determination. While preparing to do away with veneer of Kashmir’s `accession’ to India, it continued to tell lies. They air lifting of two contingents of security forces, one of ten thousand and another of 28000 were routine exercise. It did so to meet threat of terrorist attack. Even the military generals lied that a cache of land mines and snipers with made-in-Pakistan have been detected.
Myth of accession
India abolished Kashmir’s special status codified under Article 70 of its constitution on flimsy excuse. India claims that the occupied Kashmir’s constituent assembly had voted for accession of disputed Kashmir to India. As such, it is no longer necessary for her to let the promised plebiscite be held in Kashmir. It shrugs off reality that the constituent assembly cannot oust jurisdiction of the United Nations resolutions and conventions about self-determination, signed by India itself. Is India’s argument tenable? Does history or documents corroborate India’s stand? Let us look a bit closely at India’s stance. Kashmir conflict is a maleficent inheritance from the British raj. India and Pakistan went to fisticuffs to settle this dispute. Following their first war on Kashmir, both India and Pakistan accepted ceasefire from January 1, 1949 under supervision of UN observers. No UN resolution incorporates India’s view that maharajah had acceded to India. It is said that the accession instrument stands `stolen’. There is a United Nations’ resolution that forbids India- occupied Kashmir `assembly’ from acceding to India (authenticating royal accession). The main resolutions on Kashmir are: (a) United Nations’ Commission for India Pakistan Resolution dated August 13, 1948. Para 75 (Serial110) in Part III of this resolution states ` 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 and to that end, upon acceptance of the truce agreement, both Governments agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured. (b) UNCIP Resolution dated January 5, 1949 Para 51 (Serial 1196) states ‘The question of 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’.
Since both parties agreed to a plebiscite, the question of sanctions never arose. Besides, India approached the United Nations under Chapter VI (Pacific Settlement of Disputes), not Chapter VII (Acts of Aggression).
It is the Treaty of Amritsar (1846) which entitled Gulab Singh to rule Jammu and Kashmir State. This treaty stands lapsed under Article 7 of the Independence Act. The Act was passed by British Parliament on July 18, 1947 to assent to creation of independent states of India and Pakistan. The aforementioned Article 7 provides that, with lapse of His Majesty’s suzerainty over Indian states, all treaties, agreements, obligations, grants, usages and sufferance’s will lapse.
Mountbatten deliberately kept mum about this reality for considerations of political expediency. He was not ‘politically naive, much less a fool’ not to realise this truth. According to his biographer, Ziegler, Mountbatten had a ‘powerful, analytic mind of crystalline clarity’. Yet, he had ‘legendary capacity for self-deception’. He ‘was a man who preferred falsehood to truth’. Even the ‘Instrument’ of Accession is void for several reasons. The Independence Act required intention of accession to be absolute and crystal-clear. But, a stray glance at the ‘Instrument’ would make it clear that it is equivocal. The ‘Instrument’ expresses ‘intention to set up an interim government and to ask Sheikh Abdullah to carry the responsibilities’ with maharajah’s prime minister. The last sentence in the ‘Instrument’ is ‘In haste and with kind regards’. Handwritten corrections on the text of the ‘Instrument’ speak volubly about the wavering state of the maharajah’s mind. The instrument, extracted under coercion and duress, is invalid under law.
Subsequent accession resolution, passed by the occupied Kashmir’s ‘constituent assembly’ is also void. This resolution violates the Security Council’s resolutions forbidding India from going ahead with the accession farce. Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions to forestall the `foreseeable accession’ by the puppet assembly. Security Council’s Resolution No 9 of March 30, 1951 and affirmative Resolution No 122 of March 24, 1957 outlaws accession or any other action to change status of the Jammu and Kashmir state. India gives the impression that the USA considers the state’s so-called accession as legal. This is not true.
On October 28, 1993, Robin Raphel, in her statement, clarified that Washington does not recognise the Instrument of Accession to India. In its perception, Kashmir was a disputed territory, not an integral part of India. The future status of the state remained to be determined in accordance with the wishes of the people of Kashmir.
We hear echo of Raphel’s statement in the resolution passed by International Commission of Jurists (ICJ), based in Geneva. The Commission pointed out that the resolution, passed by occupied-Kashmir legislature concerning Kashmir’s accession to India was bogus and null and void.
Extract of Solazrz’s conversation
At India’s behest, US Congressman Stephen Solarz elicited the statement from Bush-administration high-level diplomat, John H. Kelly, that plebiscite was no longer possible in Kashmir.
Here is an extract of Solarz’s grilling questions and the gullible answers thereto.
Mr. Solarz: What is the position of the United States with respect to whether there should be a plebiscite?
Mr. Kelly: First of all we believe that Kashmir is disputed territory…
Mr. Solarz: Well, how did we vote upon that resolution at the U.N. back in 1949?
Mr. Kelly: In favor, Mr. Chairman.
Mr. Solarz: Right. So at that time we favored a plebiscite. Do we still favor a plebiscite, or not? Or is it our position now that whether or not there should be a plebiscite is a matter, which should be determined bilaterally between India and Pakistan?
Mr. Kelly: Basically, that’s right, Mr. Chairman.
Mr. Solarz: So we are no longer urging a plebiscite be held?
Mr. Kelly: That’s right.
To India’s chagrin, John R. Mallot, the US State Department’s point man for South Asia in 1993, corrected Kelly’s faux pas. He told the House Foreign Affairs Sub-Committee on Asia and the Pacific on April 28, 1993 that John Kelly ‘misspoke’ in 1990 when he said that the United States no longer believed a plebiscite was necessary in South Asia. Mallot clarified that Kelly made his comment after ‘continued grilling’ by the panel’s (pro-India) chairman, Stephen J. Solarz of New York.
Avid readers may refer to Solarz-Kelly conversation and corrective policy action taken by the US State Department in Robert G. Wirsing’s book India, Pakistan, and the Kashmir Dispute, published by Macmillan Press Limited, London in 1994. They may also see Mushtaqur Rehman’s Divided Kashmir: Old Problems, New Opportunities for India, Pakistan and the Kashmiri People (London, Lynne Reinner Publishers, London, 1996, pp. 162-163).
India’s perfidious plebiscite promise
On Nov 2, 1947, Nehru declared in a radio broadcast that the government of India was “prepared, when peace and order have been established in Kashmir, to have a referendum held under international auspices like the United Nations.” I am quoting from Chaudhri Mohammad Ali’s The Emergence of Pakistan. Till 1953, India was, at least verbally, committed to the plebiscite.
India’s infructuous efforts to get rid of UN mandate
Despite promising a plebiscite, India had been making frantic efforts to warp or wilt the UN resolutions. For instance, during temporary absence of Pakistan’s rep, India tried to get the `India-Pakistan Question’ deleted from the UN agenda. India based her plea on Security Council’s informal decision, dated July 30, 1996, about deleting dormant questions. The Question was deleted during the Pakistan’s representative’s absence, but was restored to agenda upon his return. India’s efforts to get rid of UN observers failed likewise.
Historian Alastair Lamb lambasts the `instrument’
He regards the Instrument of Accession, ‘signed’ by the maharajah of Kashmir on October 26, 1947, as fraudulent (Kashmir – A disputed legacy 1846-1990). She argues that the maharajah was travelling by road to Jammu (a distance of over 350 km). How could he sign the instrument while being on the run for safety of his life? There is no evidence of any contact between him and the Indian emissaries on October 26, 1947.
Actually, it was on October 27, 1947 that the maharajah was informed by MC Mahajan and VP Menon (who had flown into Srinagar) that an Instrument of Accession is being fabricated in New Delhi. Obviously, the maharajah could not have signed the instrument earlier than October 27, 1947. The instrument remains null and void, even if the maharajah had actually signed it. The reason, as pointed out by Alastair is that the `signatures’ were obtained under coercion. He points out Indian troops had already arrived at and secured Srinagar airfield during the middle of October 1947. On October 26, 1947, a further airlift of thousands of Indian troops to Kashmir took place. He questions: “Would the maharajah have signed the Instrument of Accession, had the Indian troops not been on Kashmiri soil?”
It is eerie to note that India never showed the original `Instrument’ to Pakistan or any international forum, including the UN. Isn’t it funny that, in the summer of 1995, India reported the original document as lost or stolen? This fact further beclouds authenticity of the document. Conclusion
From the foregoing, it is evident that the Instrument of Accession does not exist. The `accession’ of the disputed state, through a resolution of the puppet assembly, is null and void. This `resolution’ violates the Security Council’s directive forbidding India to forge unilateral ‘accession’ of the state.
India took the Kashmir issue to the UN in 1948 under article 35 of Chapter VI which outlines the means for a peaceful settlement of disputes. India avoided presenting the Kashmir case under the UN Chapter VII which relates to acts of aggression. Obviously, it did so because it knew that the Kashmir was a disputed state. And, issue of its integration with India or Pakistan remained to be resolved. Now it is Pakistan’s turn to do so, lest the dispute fares up into a nuclear Armageddon.
Mr. Amjed Jaaved has been contributing free-lance for over five decades. He served federal government of Pakistan for cumulative period of 39 years. His contributions stand published in the leading dailies and magazines at home and abroad (Nepal. Bangladesh, et. al.). He is author of seven e-books including Terrorism, Jihad, Nukes and other Issues in Focus (ISBN: 9781301505944). He holds degrees in economics, business administration, and law. His article `Rampant corruption in India’ is archived with Transparency International, `Belt-Road initiative moderndiplomacy.eu‘, with Kennedy Centre, USA, `Chanakya’s Misprint on India’s foreign policy” with People’s Review Nepal.He specialises on India, Kashmir, peripheral states and some political flash-points.