Kashmir dispute: The legal position

Dr Muhammad Khan

THERE is a basic paradoxical discrepancy between what India proclaims over the Kashmir and what is written in its Constitution about the status of Kashmir. Following the fake election in IOK in 1953, successive Indian leadership have been claiming that, Kashmir is integral part of Indian Union. Whereas, the fact is that, IOK is being ruled by India, through Article 370 of its Constitution.
In fact this article is the only linkage between IOK and Indian Union. Article 370 is drafted in part XXI of the Indian Constitution and clearly relates to the “Temporary, Transitional and Special Provisions” concerning Kashmir. No other Indian state is being ruled through this article, which clearly depicts that, Kashmir is not integral Indian state like other Indian states. After taking over the power, Prime Minister, Narrindra Modi became more hard and rigid over the Kashmir dispute. In Sept 2016, during her speech in UN General Assembly, Indian External Affairs Minister, once again tried to mislead the world by saying that, Kashmir is integral part of India. Besides, India is constantly suppressing Kashmiri masses, over only and genuine demand of their right of self-determination.
In order to know the reality of Indian claim on Kashmir, there is need to understand the historical context of Indian partition and subsequent developments took place in subcontinent. The June 3rd Partition Plan of British India was formally passed by British Parliament as “Indian Independence Act”, on July 17, 1947, According to this plan, partition of British India into Pakistan and India was to be implemented from August 15, 1947. This Partition of India was implemented as per Article 1 of the Indian Independence Act.
As per Article 7 of this Act, it was clearly stated that, from August 15, 1947, “the suzerainty of His Majesty over the Indian states lapse and with it lapses all treaties and agreements enforce at the date of the passing of this Act between His Majesty and the rulers of Indian states”. Apart from Kashmir, there were over five hundred sixty Princely states in British India at the time of its partition.
The most significant aspect of Indian Independence Act was that, 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 meant that, on August 15, 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. This title to the state was granted to him by the British Government (East India Company) under the Treaty of Amritsar (Kashmir Sale deed) signed on March 16, 1846 and lapsed on the appointed day of August 15, 1947.
Besides this act, 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, which was not implemented, the first and most significant violation of Indian Independence Act. The 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 fabricated story.
Indeed, a heavy contingent of Patiala State was involved in fighting against the Kashmiri rebellions in Uri Sector on October 18, 1947, which means that they were very much inside the State’s territory much earlier than October 27, 1947, a violation committed much earlier than October 27, 1947. On October 24, 1947, Kashmiris formally declared their independence from Dogra Rule and established their own government with the name of Azad (Free) Kashmir Government. Following this Maharaja Hari Singh sent his deputy Prime Minister Mr. 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 Harisingh never desired.
It is to be noted that, the famous British historians; Alastair Lamb and Victoria Schofield have contested the signing of any Instrument of Accession by Maharaja Harisingh with India, at least before October 27, 1947, proving the entire Indian story as false and fabricated. 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, e.g. 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 …”
Furthermore, the wording of this so-called instrument of accession, 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.” Then, there were commitments of Indian Prime Minister Nehru, Mountbatten and UN resolutions.
A top-secret letter addressed to British Government by Alexander Symon, UK High Commissioner to India, also negate any accession treaty. 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? Besides, as per UN resolutions; 2017 of March 30, 1951 and 3779 of January 24, 1957, Kashmir Constituent Assembly cannot pass any resolution for accession with any state. IOK Legislative Assembly cannot declare Kashmir as its integral part of Indian Union in the light of these resolutions.
The legal position of dispute is that, Indian claim over IOK is unlawful, oppressive and unsubstantiated. India is negating its own Constitution, UN resolutions and commitment of its leadership with Kashmiri people. Rather being rigid, Modi is right man to take a bold step and adopt a realistic approach for the resolution of this outstanding dispute. Its resolution as per the wishes of the people would lessen the tense environment in South Asia, shrink arms race, promote political consensus and ensure economic development, which would improve the living standard of over 1.5 billion people of this region. The key to this regional peace lies with India alongside, UN, US and major powers.
— The writer is International Relations analyst based in Islamabad.
Email: [email protected]

Share this post

PinIt
    scroll to top