The legal position of Jammu and Kashmir – Which part is not occupied?

Eventually, Jinnah, Mountbatten and Nehru unanimously agreed that Rulers of the Princely States should decide future of their states, by taking geographical position and composition of their subjects into consideration.

A question that some people have repeatedly asked me, and which I have been deliberately avoiding is the one below:
‘Which part of Jammu and Kashmir is not occupied?’
People from my party, the United Kashmir Peoples National Party, and some belonging to other parties have also asked me to clarify this important question. One Azad Kashmiri said:
‘I have seen your writings, where you say that the entire State of Jammu and Kashmir is occupied. Also, you, at times, write, Indian occupied Jammu and Kashmir and Pakistani occupied Jammu and Kashmir. Whereas, views of some of your party colleagues are different. Can you please clarify this ambiguity?’

Views expressed below are mine, and not that of the UKPNP. I am only presenting a legal position, as it is understood by me, and the international community. I am not advocating or supporting positions of New Delhi or Islamabad on the Jammu and Kashmir dispute.

Two Nation Theory and the Princely States

The first point we need to understand is that the Two Nations Theory did not apply to Jammu and Kashmir, and the other Princely States. This means Jammu and Kashmir State did not belong to Pakistan just because it had a Muslim majority.

The Crown Representative, and Governor General of undivided India, Mountbatten asserted that after lapse of the British Paramountcy, the Princely States will legally and technically become independent. This view was supported by constitutional experts like Mohammed Ali Jinnah, founder of Pakistan.

The government of Pakistan by entering in to a bilateral agreement with State of Jammu and Kashmir acknowledged this fact that Jammu and Kashmir was a separate political entity. This agreement with Pakistan was known as a Standstill Agreement.

Pandit Nehru, on behalf of the Indian Congress wanted the people of Princely States to decide future of their states. Mohammed Ali Jinnah, on behalf of the Muslim League insisted that the Rulers of the Princely States should take this decision.

Eventually, Jinnah, Mountbatten and Nehru unanimously agreed that Rulers of the Princely States should decide future of their states, by taking geographical position and composition of their subjects into consideration.

The State of Junagarh had no land link with Pakistan. Its Ruler was a Muslim; and population was nearly 80% non-Muslim. Because the Two Nations Theory was not applicable to the Princely States, and the Rulers were permitted to decide future of their states, the Ruler of Junagarh decided to accede to Pakistan. Mohammed Ali Jinnah knew the legal position of the Princely States, so without any hesitation he accepted that accession.

Was accession provisional?

On 22 October 1947, Pakistan unilaterally violated the Standstill Agreement and launched a tribal invasion to conquer Kashmir. This aggression resulted in death of tens of thousands of innocent people, kidnapping and rapes of women. The Ruler of Jammu and Kashmir asked India for help.

An independent India also knew that Jammu and Kashmir was a separate political entity, so they refused to help, unless the Maharaja of Jammu and Kashmir acceded to India. In order to save his State and his people, the Maharaja Hari Singh acceded to India on 26 October1947. After this treaty, the Indian troops landed in Kashmir on the morning of 27 October 1947.

Here there is some confusion and controversy. Majority of Muslim citizens of Jammu and Kashmir believe that the accession to India was ‘provisional’. However, nowhere in the Instrument of Accession it says it is provisional; although it was related to only 3 subjects, namely, Defence, Foreign affairs and Communication.

It was Mountbatten who made it ‘provisional’. As a Governor General of an independent India, he accepted the accession of Jammu and Kashmir. However, in his letter to the Maharaja Hari Singh he said accession was accepted ‘provisionally’; and that it has to be ‘ratified’ by the people of Jammu and Kashmir once the invaders are driven out and peace and stability returns.

It must be pointed out that the Maharaja Hari Singh acceded unconditionally. Why Mountbatten added the word ‘provisional’, and why he mentioned about ‘ratification’, no one knows. This is a matter of academic debate.

There were more than 562 Princely states, and accession of no other state was accepted ‘provisionally’. The word provisional did not appear anywhere in the Instrument of Accession document. To obtain accession of the respective Princely states, both countries were ruthless. Where the Rulers were unwillingly to accede, their arms were twisted to obtain the accession.

Mountbatten’s much publicised visit to Kashmir did not yield the desired results. Despite all the pressure from many sides, the Maharaja Hari Sing refused to accede to any country. To rub salt in the wounds of the proud Royal Governor General, he did not even meet Mountbatten before he left Kashmir, by saying he was not well.

In my view, Mountbatten took that as an insult. He wanted to punish two people, Mohammed Ali Jinnah and Maharaja Hari Singh for causing embarrassment to him. Before leaving for Srinagar, Mountbatten assured top Congress leaders that he will be able to persuade Haring Singh for an accession. Hari Singh’s ambition was to remain independent, and his behaviour frustrated Mountbatten.

Also, Jinnah frustrated Mountbatten, and his pride was hurt again. He had communicated to London that he would become a Joint Governor General of both India and Pakistan, only to be embarrassed later on, when Jinnah said he wanted to become Governor General of Pakistan.

In my opinion, the word ‘provisional’ was added by Mountbatten to ensure that the dispute continues in the Indian Sub-Continent. His strategy worked, and India and Pakistan, and especially people of Jammu and Kashmir continue to bleed since 1947.

This view is further supported by the fact that Mountbatten was the one who persuaded Prime Minister Nehru and Prime Minister Liaquat Ali in the third week of December 1947, that the Jammu and Kashmir dispute should be taken to the UN Security Council.

Mountbatten was to remain a Governor General of an independent India for a short while, and the leaders of India and Pakistan had to deal with the mess he was to leave behind. I am sure both Liaquat Ali and Nehru did not know the mechanism of the UN, whereas Mountbatten and the British knew it. The Jammu and Kashmir dispute was taken to the UN Security Council under Chapter 6, which has only an advisory role.

No resolution passed by the Security Council under chapter 6 can be enforced. The Chapter 6 urge parties to the dispute to: ‘seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.’

If the Kashmir dispute had been taken to the UN Security Council under chapter 7, then the situation would have been totally different. The Chapter 6 is good to drag on the dispute. If Nehru had known all this, he would have invoked Chapter 7, and not Chapter 6 of the UN.

It must be pointed out that Pakistan was not a party to the dispute before it was taken to the UN Security Council. Even after inclusion of the words ‘provisional’ and ‘ratification’, the matter was between the government of India and people of the Jammu and Kashmir. Technically people of Jammu and Kashmir had 3 options: they could have ‘ratified’ the ‘accession’; rejected the ‘accession’ or perhaps re- negotiated terms of the ‘accession’.

However, the Pakistani military attack supported by the local collaborators changed the situation. The government of India was under obligation to forcefully drive out the attackers from the soil of Jammu and Kashmir and save life, liberty, property and honour of the people.

If the Kashmir dispute was not internationalised by taking it to the UN Security Council, then because of military strength, huge size and resources, India would have driven out the invaders. That would have meant no role for Pakistan, and strategically important State of Jammu and Kashmir would have gone under the control of India. That was not in ‘national’ interests of the British and the West because of the ‘Cold war’ and strategic interests in the region.

Already with help of Major Brown, Gilgit Scouts and some local collaborators they took over strategically important, and resource rich areas of Gilgit Baltistan. It was essential to cut out a role for Pakistan in Jammu and Kashmir dispute. Once the matter was referred to the UN Security Council, Pakistan ‘legally’ became a party to the dispute, because they were called by the Security Council to respond to the charge sheet presented by India.

The people of Jammu and Kashmir should have been the principal party to the dispute, they were side lined; and sadly, India and Pakistan became the parties who were to decide what is good for the people of Jammu and Kashmir.

As pointed out earlier, Pakistan had no legal standing in this matter. The issue was between India and the people of Jammu and Kashmir. However, by one master stroke, a role was cut out for Pakistan; and Subjects of the Maharaja Hari Singh continue to bleed and suffer. The Indian Sub-Continent still remains volatile, full of hatred and underdeveloped.

Also, it has been explained that the Instrument of accession document did not have the word ‘provisional’. This was first used by Mountbatten in his letter to Maharaja Hari Singh. Subsequently, Prime Minister Nehru and other Indian officials used the word ‘provisional’ so many times; and agreed to hold a plebiscite to determine the future of Jammu and Kashmir State. It was clear from their actions, that even they did not regard the accession as final. This ambiguity immensely weakened the Indian stand on Jammu and Kashmir and strengthened the Pakistani hand.

Who is aggressor in Jammu and Kashmir?

Despite the above, the Security Council Resolution of 13 August 1948, clearly demanded Pakistan to withdraw all the troops, withdraw all tribesmen and all Pakistanis who entered Jammu and Kashmir for the purpose of fighting. The Resolution asked India to withdraw ‘bulk’ of troops, after Pakistan’s complete withdrawal.

This practically meant the International community regarded Pakistan as an aggressor, that is why Pakistan was asked to vacate all the areas. India’s presence in Jammu and Kashmir was perceived as a ‘legal one’; and that is why India was permitted to keep troops for the purpose of law and order, and to save people from any future adventure from Pakistan or from any other country.

India could be criticised and condemned on the issue of human rights abuses; however, despite many mistakes, India’s legal position on Jammu and Kashmir is still strong.

Ideologues of redundant Two Nations Theory and some Kashmiri collaborators claim that after signing the Standstill Agreement with Pakistan, the Maharaja Hari Singh lost the right to sign an Instrument of Accession with India.

This is not true. At best one can call it a Pakistani propaganda to fool their own people and Muslims of Jammu and Kashmir. It must be pointed out that the Maharaja Hari Singh offered to have a Standstill Agreement with both India and Pakistan. Whereas, Pakistan immediately accepted it, Government of India asked Hari Singh to discuss this matter further.

Due to lack of knowledge, inherent bias and myopic view on different issues, many of us erroneously believe that India’s oppression, which is mainly due to sponsored proxy war and militancy, eliminate India’s legal standing on Jammu and Kashmir.

That is not true. I can condemn India’s human rights abuses. However, is it not a fact that human rights abuses are being committed in those areas where there is militancy. If India’s para military forces were trigger happy, and enjoyed committing human rights abuses in Jammu and Kashmir, then why are they not doing that in a province of Ladakh and province of Jammu?

Critics or those who accept no logic that differs with their perception, claim that Indian forces only want to kill and oppress Muslims. This claim does not hold water. Ladakh has two districts, one is Kargil, which has a clear Muslim majority. Rational people ask why there is no oppression in Kargil?

Furthermore, why there is no oppression in Muslim dominated areas of Jammu Province? It is because there is no militancy going on there. When militant actions take place in these areas, troops go there in search of militants, and some human rights abuses do take place.

Sadly, where ever there is militancy and terrorism, some human rights abuses take place; and that happens in every country, including India, Pakistan, America, China and others.

When Pakistani sponsored militancy started in the Kashmir Valley, there were massive human rights abuses in the Valley of Kashmir in early 1990s. Now militancy under somewhat control, the human rights abuses are only restricted to those areas of the Valley of Kashmir where there is some militancy going on.

Rational of all this is that we must struggle peacefully, and must stop using guns and exploding bombs, the human rights abuses will stop too. If we think we have a God given right to borrow guns and bombs from Pakistan, and kill police and para – military troops in Jammu and Kashmir, but they should not use their guns against us, then we are fools. If we want them to stop using their guns and stop abusing human rights, then we have to stop using our guns.

I agree that Indian response to militancy, and proxy war was disproportionate, and cannot be justified. Similarly use of pellet guns against children and civilians cannot be justified, however, this does not change the legal position of India on Jammu and Kashmir dispute.

Right of self-determination or a right of accession

It was prerogative of the Maharaja Hari Singh to decide future of Jammu and Kashmir. He did that on 26 October 1947. His decision was ‘deliberately’ made controversial by internationalising the Jammu and Kashmir dispute, and by making Pakistan a party to the dispute.

The International body, the UN Security Council decided that people of Jammu and Kashmir should take a decision on ‘future’ of Jammu and Kashmir. Unlike general understanding of Muslims of Jammu and Kashmir and Pakistanis, the UN Security Council never talked about right of self-determination of people of Jammu and Kashmir. They talked about a plebiscite.

However, after visiting the Indian Sub – Continent, the UN Commission for India and Pakistan, proposed a resolution which was adopted on 13 August 1948. In part 3 of this Resolution, it was stated that:

‘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..’

The term ‘future status’ could mean:
1/ Ratification of accession to India,
2/ accession to Pakistan or an independent Jammu and Kashmir.

Fearing emergence of an independent Jammu and Kashmir, Pakistan government proposed that the term ‘future status’ be replaced with the following:

‘The question of the 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;’

India did not oppose this proposal, and no loyal son of Jammu and Kashmir was there to protect and defend interests of Jammu and Kashmir; and as a result, the above amendment was adopted in the next UN Security Council Resolution of 05 January 1949. Pakistan claims to be a well-wisher, and an advocate of people of Jammu and Kashmir; and yet they ensured that people of Jammu and Kashmir must not become independent, and get their national identity and sovereign status.

Pakistan, not only refused to withdraw troops from the territory of Jammu and Kashmir, as directed by the UN Security Council Resolution, but also to rub salt in wounds of people of Jammu and Kashmir, Pakistan propagated that what was available to people of Jammu and Kashmir was a right of self-determination.

What was made available to people of Jammu and Kashmir in the Resolution of 05 January 1949, was not a right of self-determination, but a right of accession. People of Jammu and Kashmir were told you can become a citizen of India if you wish, or you can become a citizen of Pakistan, but you CANNOT become independent.

Conclusion

I have explained the legal position as I understand it. This should not be construed as my wish or a desire. I have always, since 1973, worked for United and independent Jammu and Kashmir with a secular society. This is also the position of the United Kashmir Peoples National Party. I as an individual and the UKPNP as a political party frequently come under attack, mainly because we promote an ideology that directly challenges the narrative of Pakistan and their proxies and extremist groups.

All those who believe that religion is a personal matter of citizens, and the State of Jammu and Kashmir belongs to all of us have no choice, but to unite and fight back forces of extremism, terrorism, intolerance and religious hatred. They are not the only a threat to peace and stability of Jammu and Kashmir, but also a serious threat to the entire region.

Reference:

  1. Speech of Mountbatten to the Chambers of Princess on 25 July 1947.
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