Dr Muhammad Khan
IN the history of Kashmir 27 October is observed as the Black Day. On this day in 1947, India invaded Jammu and Kashmir in complete disregards to Indian Independence Act, the UN Charter and above all, against the wishes of the people of Jammu and Kashmir. The people of Kashmiri, were poised to be part of Pakistan, therefore started struggle against the Maharaja Hari Singh, once Indian military occupied the state. Indeed, Maharaja’s rule over the state had already lapsed 15 August 1947. Soon after invasion, India tried to justify its illegitimate occupation of the state through contradictory instrument of accession.
Later on India took the case to the UN on 1 January 1948, where it was decided through a number of resolutions that, future of the state will be decided through a plebiscite under UN supervision. After initial acceptance of UN resolutions, India subsequently delayed the implementation of the resolutions and later denied to conduct the plebiscite. In mid 1950s, India started calling it as its integral part and later on 5 August 2019 unilaterally annexed the state with Indian Union. The occupied state is in constant siege and curfew since 5 August 2019. India has arrested over 20,000 Kashmiri youths since then and has unleashed a reign of terror in the occupied state.
For the last seven decades, India has been wrongly projecting Kashmir as its integral part, since there was a basic contradiction between what India proclaims and what Indian Constitution warrants. Article 370 of its Constitution, which India abrogated on 5 August 2019 was drafted in part XXI of the Indian Constitution and clearly related, a “Temporary, Transitional and Special Provisions” of Kashmir. No integral Indian state has been ruled through this article, which clearly depicted that Kashmir is not integral part of Indian Union. Rather resolving the Kashmir dispute as per UN resolutions, India tried to do away the Article 370, committing another violation of UN resolutions, its own Constitution and Constitution of the State of Jammu and Kashmir.
In order to know the reality of Indian claim on Kashmir, there is need to understand the historical context of Indian partition and subsequent events. On 3 June 1947, the British Indian Government announced partition of the subcontinent into two Dominions; ‘India and Pakistan’. The British Parliament formally passed, the “Indian Independence Act”, on 17 July 1947, according to which, the partition was to be implemented from 15 August 1947. Partition of India was implemented as per Article 1 of the Independence Act. As per Article 7 of the Act, it was clearly stated that, from 15 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”. As per Indian Independence Act, all agreements of British governments with either rulers or states also lapsed on 15 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 legal ruler of the state of Jammu and Kashmir as all his treaties with British India lapsed on that day. Once he was not a legal ruler of the state, he had no right to sign the instrument of accession (if at all he signed that) with the new Indian dominion.
The Indian claim that its forces landed Srinagar Airport on 27 October 1947 only after signatures on Instrument of Accession by Maharaja and the Indian government, is also unfounded. Indeed, a heavy contingent of Patiala State was involved in fighting against the Kashmiri fighters in Uri area on 18 October 1947, which means that they were very much inside the State’s territory much earlier than 27 October 1947. On 24 October 1947, Kashmiris formally declared their independence from Dogra Raj and established their own government with the name of Azad (Free) Kashmir Government. Following this Maharaja Hari Singh sent his Deputy Prime Minister R L Batra to New Delhi, requesting Indian military assistance. The Indian Government however, conditioned the military assistance with state’s accession to India, which Maharaja Hari Singh never desired.
Two well-known British historians; Alastair Lamb and Victoria Schofield have contested the signing of any Instrument of Accession by Maharaja Hari Singh with India, at least before 27 October 1947. Nevertheless, even if there was an instrument of accession between Maharaja Hari Singh and Indian government, it provides a number of safeguards to the state’s sovereignty, eg Clause 7 of the instrument says, “Nothing in this instrument shall be deemed to commit me in any way to acceptance of any future constitution of India …”.If it is accepted that there was an instrument of accession, signed by the Maharaja and Indian government, even then, it clearly states that “after the restoration of law and order in the State of Jammu and Kashmir and the expulsion of the raiders, its future will be decided in accordance with the wishes of the people of the State.”
In summary, Indian annexation of Kashmir on 5 August 2019 is illegal and against the UN resolutions. Indeed, it is a reinvasion of the state by India through use of force. Moreover, its claim over the occupied state of Jammu and Kashmir as integral part since 72 years has been completely illegal and unsubstantiated. Its invasion in Kashmir on 27 October 1947 was illegal and against UN Charter. Kashmiris have never accepted Indian rule and its claim over the state since it invaded the state on 27 October 1947. Kashmiris throughout the world observe this day as the Black Day in the history of Kashmir. All UN resolutions, ask for the right of self-determination for the Kashmiris through a neutral mechanism. Today, the oppressed Kashmiris demand that UN and international community must take a decisive step towards resolution of Kashmir dispute as per their wishes in the light of UN resolutions.
— The writer, a retired Brig, is Professor of Politics and International Relations at International Islamic University, Islamabad.