Legality of Indian claim over Kashmir: A perspective


Dr Muhammad Khan

Once India invaded Jammu and Kashmir on 27 October 1947, it had only one plea that Maharaja of Kashmir had signed an instrument of accession with India. This was the sole appeal which India referred to the United Nations, once it lodged its complaint on January 1, 1948. India continued its occupation of the State for 72 years under the same pretext while apparently maintaining a façade of Article 370 of its Constitution. Article 370 was a temporary, transitional and provisional arrangement and the only linkage between India and the State of Jammu and Kashmir.
Article 370 was to remain valid until conduct of the plebiscite in the state as per UNCIP resolutions of 13 August 1948 and 5 January 1949. Being temporary in nature, it got a provisional acceptance from the Constitutional Assembly of the India occupied Kashmir (IoK), indeed forced upon by Indian Government. After provisional approval of this Article, the Constitutent Assembly of IoK was dissolved in 1956 and Kashmiris started counting the days for their right of self-determination through an impartial plebiscite under the auspices of the United Nations. As a covert but persistent State policy, Prime Minister Nehru initially delayed and then denied the conduct of plebiscite which was followed by successive Indian governments until India decided to take another drastic act like its October 1947 invasion. On 5 August 2019, Indian Government implemented its long-awaited agenda of illegal annexation of the State of Jammu and Kashmir as union territory under Jammu and Kashmir Reorganization Act-2019.
This illegal Act was implemented on 31 October 2019 without any consent of the people, the State Assembly and above all in violation of its own Constitution and Constitution of IoK. Grounds were prepared for that through imposition of Presidential, after the Governor Rule. Besides, UN resolutions 91 and 122, both prevent all parties to dispute to take any unilateral decision about the future of the State, except through UN administered plebiscite. While annexing the State into Indian Union in two parts, India again took the plea of Instrument of Accession which it claims was signed before 27 October 1949. Even the original signed copy of the instrument of accession is not held with Indian Government as a proof. Indian says, the document was lost in the 1990s, thereafter it was not traceable.
About the Instrument of Accession, two distinguished unbiased historians of the United Kingdom proved through their account of the dispute that there was no Instrument of Accession signed between Maharaja Hari Singh and Indian Government before 0800 hours on 27 October 1947. Indian forces formally landed on Srinagar Airport at 0800 hours on 27 October 1947. Alastair Lamb in his well-known book, Kashmir: A Disputed Legacy (1846-1990) has criticized Indian Government for taking the plea of Instrument of Accession for its claim over and invasion into the State of Jammu and Kashmir in 1947 and then perpetuating that till-to-date. His research proved that ‘Time calculation between Delhi and Jammu during the visit of V. P. Menon and Mehr Chand Mahajan does not fit into the signing of Accession Treaty before 27 Oct, 1947. He also proved through his research that, indeed, Maharaja Hari Singh never asked for the accession of the state with Indian Union, he only requested for the military assistance from India, fearing the military advance of Kashmiri irregular forces, who were later helped by tribal volunteers from former NWFP (now KP). Indeed, Maharaja wanted to keep the State of Jammu and Kashmir as an independent state for which he had already initiated the standstill agreements with India and Pakistan. Pakistan accepted the standstill agreement; India however refused to do so with an ill intention.
Prem Nath Bazaz, a Hindu Kashmiri politician, scholar and author, wrote in his book that, PanditKok, the Hindu Prime Minister of Kashmir in 1947, advised Maharaja to accede to Pakistan, since 80% population of the State was Muslim and non-Muslim population of the state too wanted to join Pakistan, owing to natural inclination of the state with newly born Pakistani state. Prem Nath Bazaz wrote an account of Kashmir in his famous book, “The History of Struggle for Freedom in Kashmir: Cultural and Political, from the Earliest Times to the Present Day (1954)”.
Even being a prominent Hindu politician, scholar and writer, Prem Nath Bazaz was an advocate of the fact that since there is a natural inclination of the State of Jammu and Kashmir towards Pakistan, therefore it should have acceded with it. Moreover, there were two basis fixed by Viceroy of India, Lord Mountbatten for the accession of the princely states; the will of the people and geographic contiguity. In the case of Princely State of Jammu and Kashmir both factors favoured Kashmir’s accession toPakistan.
Victoria Schofiled, another distinguished British historian, clearly denied the Indian claim over the State of Jammu and Kashmir, based on the Instrument of Accession. She has been highly critical to Indian occupation of the state in her two prominent books; “Kashmir in the Crossfire” and “Kashmir in Conflict: India, Pakistan and the Unending War”. Supposedly, there was an Instrument of Accession; its clauses did not allow its occupation by India. Clause V says, “The terms of this Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947, unless such amendment is accepted by me.” Clause-VII says, “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India.”
Since Indian claim over the state of Jammu and Kashmir is only based on Instrument of Accession, which has either not been signed by Maharaja Harising hand if signed under duress (after October 27, 1947), its contents as mentioned above do not legalize Indian rule over the state. Therefore, there was no legitimacy of Indian occupation of the state in 1947 and there was legality of its annexation of the state in two parts into Indian Union on 31 October 2019 through its illegal Jammu and Kashmir Reorganization Act-2019. From the perspective of legitimacy, India is an illegal occupant of the State of Jammu and Kashmir, which seriously warrants the attention of the United Nations and international community.
— The writer, a retired Brig, is Professor of Politics and International Relations at International Islamic University, Islamabad.

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