Kashmir: Tracing Indian legitimacy by Dr. Raja Muhammad Khan

The misfortune of Kashmiris can be imagined from a verse of the great poet and philosopher, Dr. Muhammad Iqbal who while describing their helplessness said; “each hill, each garden, field, each farmer too they sold. A nation for a price that makes my blood ice cold”.
This indeed was the reference towards the infamous Kashmir Sale Deed of 1846. Thereafter, Dogra Rule continued over Kashmiris unabated until 1947. In 1919, from the platform of the Reading Room Party, Kashmiris tried to wakeup but had to face 1931 massacre. While the dream was converting into the reality for the formation of first ideological Muslim state in the world, Kashmiri too thought to become its part. However, the misfortune had them once again. While they were celebrating the independence with rest of Pakistan, it was learnt that against their wishes, that the Maharaja of Kashmir has not acceded with their dreamland (Pakistan). This time they did not sit back, rather revolted for their rightful cause without even having arms. Kashmiri established their own Government with the name of Azad (Free) Kashmir Government on October 24, 1947. Through the help of their Tribal brethrens, they forced the Dogra Mahraja and his Army to retreat. The retreating Mahraja requested the India for the military assistance to fight back the revolting masses. Indian forces invaded the Kashmir on October 27, 1947 and thereafter a full-fledged war broken out between India and Pakistan until UN sponsored ceasefire in January 1949. Through its twenty-three resolutions, which also include two UNCIP resolutions of 13 August 1948 and 5 January 1949, United Nations promised right of self-determination for the people of the Kashmir, but Indian rigid attitude and high stakes became an obstacle and the issue is still unresolved after the passage of sixty-two years. Failure to win the popular Kashmiri support in mid 1950s, India started claiming Kashmir as its integral part. The illegitimacy of Indian claim on Kashmir can be traced from under mentioned arguments and historical realities. British Government announced partition of the Subcontinent on June 3, 1947, whereas, British Parliament passed “The Indian Independence Act” on July 17, 1947. As per Article-I of the Independence Act, India was to be partitioned into two Dominions namely “India” and “Pakistan” from 15th day of August 1947. However, Article 7 of the Indian Independence Act very clearly states that from 15th August 1947, “the suzerainty of His Majesty over the Indian states lapse and with it lapses all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian states”. Consequent upon this, all powers and functions, which were exercisable by the British Government in relation to the Princely States, also ceased. All agreements of British governments with either rulers or states also lapsed on 15th of August 1947. Since the state of Jammu and Kashmir was a Princely State with a special autonomous status, therefore, it can be very conveniently said, that on 15th day of August 1947, the Maharaja Sir Hari Singh was not the permissible ruler of the state of Jammu and Kashmir as all his treaties with British India lapsed on that day. Once he was not a ruler of the state, he had no right to sign the instrument of accession (if at all he has signed that) with the new Indian dominion. Besides, on July 25, 1947 in his address to special full meetings of the Chamber of Princes held in New Delhi, Lord Mountbatten categorically told all princes of Princely States that they were practically free to join any one of dominions; India or Pakistan. He however clarified that, while acceding to any dominion they could take into account geographical contiguity and wishes of the people. In case of the State of Jammu and Kashmir, either of the above factors was favouring state’s accession to Pakistan, but Maharaja Hari Singh did not accept this basic precondition of accession. Indian claim that its forces landed Srinagar Airport on October 27, 1947, only after signatures on Instrument of Accession by Maharaja and the Indian government is also fallacious. Indeed, a heavy contingent of Patiala State was involved in fighting against the Kashmiri rebellions in Uri Sector on 18 October 1947. On 24 October 1947, Maharaja Hari Singh sent his deputy Prime Minister Mr. R.L. Batra to New Delhi for Indian military assistance. The Indian government instead sent Mr. V.P Menon (Indian Secretary of State) to Kashmir to assess the situation, who flew back to New Delhi on 26 October 1947, together with Kashmiri Prime Minster Mr. Mahajan, who met top Indian leadership, seeking military assistance. As stated by Mahajan, the Kashmiri Prime Minister, that V.P. Menon accompanied him to convince Hari Singh for accession of the State with India on 27 October 1947. Under the compulsion, Hari Singh signed the instrument of accession on the same day i.e. 27 October 1947, which was later taken to Lord Mountbatten (Indian Governor General), who also signed that on the same day (27 October), which was practically difficult. V.P. Menon, however, states that all these formalities of signatures were completed on 26 October 1947, which is impracticable. This version, however, seems concocted as even contradicted by pro Indian Kashmiri Premier. Both however are unanimous on one point that Indian state forces landed at Srinagar airfield in the morning of 27 October 1947 and a battalion of Patiala State received them there, which was already there. However, whatever be the case the factual position is that; Maharaja Hari Singh was not in favour of State’s accession to Indian Union therefore, he only requested the Indian government for military assistance without any pre-condition of accession. Indeed, the accession documents and letters to Lord Mountbatten were initiated through the Joint efforts of V.P Menon and pro India Kashmiri Premier Mahajan, as wished by Indian Government and Hari Singh was forced to sign it on the evening of 27 October 1947 or thereafter. Whereas, Indian forces landed on Srinagar airport on the early hours of 27 October 1947. The time calculation of Mr. V.P Menon’s (Indian Secretary of State) visit to Srinagar, Delhi, Jammu and vice versa does not fit in with the concocted story of the signing of the Instrument of Accession. Another significant fact is that, had there been any accession treaty between the state of Jammu and Kashmir and the Indian government, why it could not be published in the Indian White Paper of 1948? This has left a great disbelief regarding the conclusion of any such agreement. Yet another very serious reservation arises, had Kashmir been part of the Indian Union, why it was given a special status under the provision of internal autonomy through Article 370 of the Indian constitution? It is momentous to mention that the Indian government did not accord a similar status to any other state under this provision. Indeed, out of 560 Princely states, over five hundred joined India, but none was accorded this special status. The Indian Occupied Kashmir Assembly resolution calling for the accession of the state with Indian Union has been rejected by two UN resolutions (No.2017 of 30 March 1951 and S.3779 of January 24, 1957). Both resolutions says that; any action which Kashmir Constituent Assembly may have taken or might attempt to take to determine the future shape of state or any of its part would not constitute the disposition of the state and that election of State’s Constituent Assembly cannot be a substitute for plebiscite. Indeed, through its antagonistic approach, India did not accept the Standstill Agreement with Kashmir and instead forced Mahraja to change anti-India Prime Minister, Pandit Kak, who was replaced by a none Kashmiri, Justice Mahajan, former Judge of East Punjab and member of Radcliff Award that gave away the Muslim majority areas of Gurdaspur to India. The scrupulous and levelheaded analysis of the Indian manipulations, UN mandate, the Indian Independence Act and ground realities clearly indicate that the Indian claim over the state of Jammu and Kashmir is completely illegitimate and unsubstantiated. India is negating its own commitment with Kashmiris, Pakistan and world community. It is high time that Indian leadership should realize its global and regional obligations and adopt a realistic approach for the solution of this outstanding issue to give Kashmiris their right. The world community does have a role to persuade India for the implementation of UN resolutions on Kashmir.

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