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may be following me on Facebook, WhatsApp and X. I appreciate your kind and valuable interest. This blog is dedicated to elucidating the various variables of Kashmir Case. Here, we will explore the jurisprudence of Kashmir case. Kashmiris are not a subordinate people; their title is based on the principle of equality.
Constituency of Reliable Information
There is an urgent need to enlarge the constituency of reliable information and knowledge about Kashmir case. It will include interpretation of the title of the people to self-determination, explaining the United Nations’ template and the interpretations of the respective Indian and Pakistani claims. The Indian and Pakistani claims are a consequence of the Kashmiri people’s title to self-determination. June 2018 and July 2019 UN High Commissioner for Human Rights Reports have asked India and Pakistan to “Fully respect the right of self-determination of the people of Kashmir as protected under International Law.
You have to be vigilant. Government of Pakistan has failed to spot that these two UN Reports have referred to Indian Administered Kashmir no less than 17 times as “Indian State of Jammu and Kashmir”. Unfortunately, not a single person from the Government of Azad Kashmir, its administration, judiciary, civil society, or general citizenry has raised concerns with the Government of Pakistan regarding this terminology. It has appeared 9 times in the 2018 report and 8 times in the 2019 report. We need a modern-day Diogenes with his lantern to keep a sharp vigil.
Independent and Sovereign State
The political arrangement of Jammu and Kashmir with the British Crown came to an end on 15 August 1947. Maharaja of Kashmir was under the Paramountcy of the British Crown before the partition of India from 15.8.1947 under section 7, Indian Independence Act. The Suzerainty of the Crown over Jammu and Kashmir lapsed and all functions exercisable by His Majesty at that date with respect to the State of Jammu and Kashmir, all obligations of His Majesty towards the Jammu and Kashmir State or the ruler thereof and all powers, rights, authority or jurisdiction exercisable by the Crown at that date in relation to the State of Jammu and Kashmir by treaty or otherwise lapsed and the State became an independent and sovereign State in the full sense of the International Law.
“Thus whatever limits to the sovereignty of His Highness in relation to matters coming within the sphere of paramountcy existed before 15.8.1947, these ceased to exist and His Highness became an uncontrolled and absolute sovereign even in relation to such spheres from that.” (Janki Nath Wazir CJ and Shahmiri J in Magher Singh v Principal Secretary J & K Government 1953).
Jammu and Kashmir State, by virtue of an Instrument of Accession made on 26 October 1947 ceded a limited authority specified in Section 6 (1) (a) in regards to Defence, External Affairs and Communication to the Dominion of India. Clause 8 of the Instrument of Accession runs as follows:
“Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or save as provided by or under this Instrument the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.” It is a clear and express reservation. No change whatsoever was affected in the residuary sovereignty of the State or the power of its Ruler so far as the succession of the State to the Dominion of India is concerned. The residuary sovereignty of the State and the powers of its ruler in matters other than those specified in the Instrument of Accession remained unaffected.
Promise made to the Government of Kashmir
On 27 October 1947, the Governor-General of India, Lord Mountbatten of Burma, informed the Maharaja of Kashmir:
“In response to your Highness’ appeal for military aid, action has been taken today to send troops of the Indian Army to Kashmir to help your own forces to defend your territory and protect the lives, property, and honour of your people.”
The Governor-General made it clear that this military support was conditional. He stated:
“In accordance with the policy that in the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State, it is my Government’s wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people.”
Indian army remains as a sub-ordinate force under the State administration and a supplement to Maharaja’s forces. The ultimate decision regarding Kashmir’s accession was to be made through a democratic process, reflecting the will of the Kashmiri people.
Promise made to the Government of Pakistan
In a telegram dated 27 October 1947, the Prime Minister of India assured the Prime Minister of Pakistan with the following statement:
“I should like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India.”
This assurance, conveyed from one Prime Minister to another, is a significant state document. Given the developments of that time, Pakistan was understandably concerned. The Prime Minister of India provided further reassurance with these words:
“I should like to make it clear that the question of aiding Kashmir in this emergency”—referring to efforts to eliminate tribal incursions and quell the rebellion—”is not designed in any way to influence the State to accede to India. Our view, which we have repeatedly made public, is that the question of accession in any disputed territory or State must be decided in accordance with the wishes of the people, and we adhere to this view.”
In a subsequent telegram dated 31 October 1947, the Prime Minister of India reiterated to the Prime Minister of Pakistan:
“Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are restored”—nothing could be clearer—”and leave the decision regarding the future of the State to the people of the State is not merely a promise to your Government, but also to the people of Kashmir and to the world.”
Radio Broadcast
On 2 November 1947, during a broadcast on All-India Radio, the Prime Minister stated:
“We have declared that the fate of Kashmir is ultimately to be decided by the people. That pledge”—this assurance, this promise, and now this pledge—“we have given not only to the people of Kashmir but to the world. We will not and cannot back out of it. We are anxious not to finalize anything in a moment of crisis and without giving the people of Kashmir the fullest opportunity to have their say. It is for them ultimately to decide. Let me make it clear that it has been our policy all along that where there is a dispute about the accession of a State to either Dominion, the accession must be made by the people of that State.”
He emphasized once more: “The accession must be made by the people of that State.” This principle was reflected in the proviso added to the Instrument of Accession of Kashmir.
Assurance Given to the Prime Minister of Great Britain
On 26 October 1947, Prime Minister of India Jawaharlal Nehru sent a telegram to the Prime Minister of Britain, Clement Attlee, to inform him about the “grave situation” in Kashmir. Nehru emphasized that “helping Kashmir, therefore, is an obligation of national interest to India.”
In his message, the Indian Prime Minister assured:
“I should like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India. Our view, which we have repeatedly made public, is that the question of accession in any disputed territory or State must be decided in accordance with the wishes of the people, and we adhere to this view. It is quite clear, however, that no free expression of the will of the people of Kashmir is possible if external aggression succeeds in imperilling the integrity of its territory.”
This statement underscores India’s commitment to ensuring that the decision regarding Kashmir’s accession would be determined democratically by its people, free from external pressures and aggression.
India goes to UN Security Council
On January 1, 1948, India presented its case to the UN Security Council, followed by a prayer on January 15. Pakistan responded with three documents:
“Pakistan’s Reply to India’s Complaint,”
“Pakistan’s Complaint Against India,” and
“Particulars of Pakistan’s Case.”
India had agreed to a UN-supervised vote on its provisional accession, altering its nature on January 15, 1948, and recognizing the people’s right to an unfettered decision on their future, including the possibility of independence or joining Pakistan.
Key Questions
Paramountcy and Suzerainty: How effectively have the people of Kashmir safeguarded these aspects, returned to them by the British Crown on 15 August 1947?
Title Interpretation: Have they interpreted their title towards establishing an independent state, complete integration, federated relationship, or another political arrangement?
Azad Kashmir Government: How well has it performed in relation to the Provisional Declaration of October 24, 1947?
Compliance with UNCIP Resolutions: Has the Azad Kashmir Government adhered to these resolutions and other Security Council directives?
Pakistan’s Responsibilities: How well has Pakistan fulfilled its obligations under UNCIP Resolutions and the UN template?
Indian Responsibilities: Government of India remains under a caution given in UN Security Council resolution 91 of 30 March 1951. “The party that would dare to violate an agreement thus reached would load upon itself a very grave offence against the other party, against the United Nations, and against the right of the people of Jammu and Kashmir to self-determination.
Historical Context and Present Choices
Kashmiris today face a pivotal decision:
Remain Unchanged: As Walter Lawrence described in 1895 in “The Valley of Kashmir,” Kashmiris have historically been resilient yet plagued by contradictions. In today’s context, they could seek dignity and honour through a UN-supervised vote and Article 257 of Pakistan’s Constitution. However, they have instead aligned with the main political parties in Pakistan.
Transform into an Inclusive Entity: Dr. P. Graham, in his 1952 UN Security Council report, envisioned Kashmiris as a historic, legendry people deserving self-determination. This transformation remains a challenging yet vital path.
Accession
Indian Independence Act of 1947 makes no reference to the accession of States to one Dominion or the other, as both India and Pakistan were to be at the start of independence. However, the Memorandum of the Cabinet Mission on the question of Indian States dated 12 May 1946, has laid down a principle in regards to Accession. In case of an accession the States had to take active steps to place themselves in close and constant touch with public opinion in their States by means of representative institutions.
The Memorandum states that this meant that the rights of States which flowed from their relationship to the crown would no longer exist and that all rights which had been surrendered by the States to the paramount Power would return to the States. The Memorandum concluded:
“Political arrangements between the States on the one side and the British Crown and British India on the other will thus be brought to an end. The void will have to be filled either by:
integrate themselves fully into the federal system
enter into a federal relationship or
come to a particular political arrangement.
The White Paper issued by the Government of India on 10 August 1948, states: “‘The Government of India are firmly of the view that whatever sovereign rights reverted to these States on the lapse of paramountcy (that is to say, when British sovereignty ceased to operate) they vest in the people, and conditions must be created in every state for a free and unfettered exercise of these rights.”
Accession with India is limited and only three subjects have been ceded. However, it has to be addressed afresh. (Report of The State Autonomy Committee July 2000). Accession with Pakistan has to be a consequence of negotiations as envisaged in Article 257 of the Constitution of Pakistan. It could be an integration, a federal relationship or any other political arrangement. The free and unfettered exercise of the rights, reverted to the people of the State, could also result into an Independent State of Jammu and Kashmir.
At this point in time the politicians have misdirected themselves on the question of Accession. India has acknowledged the right of the people of Kashmir to make an unfettered decision about their future, as reflected in the following prayer made at the UN SC on 15 January 1948:
“The question of the future status of Kashmir vis-à-vis her neighbours and the world at large, and a further question, namely, whether she should withdraw from her accession to India, and either accede to Pakistan or remain independent, with a right to claim admission as a Member of the United Nations – all this we have recognized to be a matter for unfettered decision by the people of Kashmir, after normal life is restored to them”.
As Kashmiris, we have yet to fully address the elements involving neighbouring countries and the international community, as highlighted in this statement. It is essential to mobilize efforts to correct historical inaccuracies and to ensure that the voice of Kashmiris is heard and respected on the global stage.
Dr. Syed Nazir Gilani
Dr-nazirgilani@jkchr.com
