Guest Post By: ZAHOOR HUSSAIN BHAT
On October 26, 1947, the State of Jammu and Kashmir acceded to the Dominion of India when its ruler Maharaja Hari Singh signed an Instrument of Accession and the Governor General of India, Lord Mountbatten accepted the instrument. With this Maharaja handed-over the Valley to India. This was the time when thousands of tribal groups had raided the State. By the Instrument of Accession, the Maharaja of Jammu and Kashmir accepted three subjects as ones on which the Dominion Legislature may make laws for the State. They were: Defence, External Affairs and Communication. While accepting the Instrument of Accession Mountbatten put forth the condition that as soon as peace is restored in Kashmir the people of Kashmir should confirm the Accession of the State.
On October 27, 1947 Indian troops were airlifted to Srinagar. The landing of troops in Srinagar was justified by Government of India by stating that troops were sent as was requested by the ruler of the state; and only after he had decided to accede to the Indian Union. However M J Akbar, the author of Nehru’s biography, has expressed doubts about Hari Singh’s formal request for assistance. He writes, “Nehru and Patel were both determined to send the army into Kashmir whether Hari Singh asked for them or not”.
Historians are of the view that the strongly nationalistic Kashmiris were fearful of joining India given the communal holocaust raging elsewhere in India during the Partition. This is clearly articulated in a famous speech by Sheikh Abdullah on October 22, 1947 where he explains the apprehension of the Kashmiri Muslims in joining India, given the massacre of Muslims in Kapurthala and elsewhere in India. However, Abdullah would consent to provisional accession to India on October 27 clearly stating that it was a provisional accession ultimately to be decided by a plebiscite.
The Maharaja made an order on October 30, 1947 appointing Sheikh Mohammad Abdullah as “the Head of the Administration with power to deal with the emergency” and appointed a twenty three member Emergency Council “pending the formation of the Interim Government”. By a proclamation issued on March 5, 1948 the Maharaja decided “to replace the Emergency Administration by a popular interim Government and to provide for its powers, duties and functions, pending the formation of a fully democratic Constitution”.
The State of Jammu and Kashmir was then governed by the Jammu and Kashmir Constitution Act, 1939. Justice Dr. A.S Anand, an eminent judge, opined in his book, ‘The Development of the Constitution of Jammu and Kashmir’: “The Government of Jammu and Kashmir did not accept the Constitution of India as a Constitution for the State.
Despite the accession, the State was still to be governed by the old Constitution Act, 1939. This was because the Government of India had given an undertaking that the people of Kashmir could frame their own Constitution. The Government of India could not force the State to accept the constitution (of India), for that would violate the agreed terms of the association of Kashmir with India. The State had voluntarily surrendered three matters only (Defence, External Affairs and Communication) and the Government of India could not enlarge the sphere of its jurisdiction at its own discretion”.
On November 2, 1947 speaking on all India Radio Pundit Jawaharlal Nehru said, “Destiny of Kashmir is ultimately to be decided by the people who live in it. We have given this promise not only to people of Kashmir, but to the world. We will not and cannot back out of it”.
On November 25, 1947 Nehru informed the Indian Parliament that we have suggested, “When people of Kashmir are given a chance to decide their future, this should be done under the supervision of an impartial court such as United Nations Organization”.
Nehru in a famous speech at Lal Chowk made it clear that the wishes of Kashmiri’s regarding the State of Jammu and Kashmir would be consulted in a plebiscite or referendum. He would repeat this promise time and again in various speeches from 1947-1951 and the 1948 Indian White Paper clearly records that the accession of Kashmir to India is provisional until such time as the will of the people of the State could be ascertained by a plebiscite.
On November 1, 1947 Mountbatten held a meeting at Lahore with Quaid-e-Azam Muhammad Ali Jinnah & Prime Minister Liaquat Ali Khan. Nehru on the justification of illness failed to attend meeting.
Pakistani leaders made it clear that accession was based on fraud and violence and was not genuine.
Nehru approached the UN Security Council to seek its help to settle the issue. On January 1, 1948 the Security Council of United Nations was called upon by India under article 34 and 35 of Chapter VI of the United Nations. In Indian complaint it has been pledged that once the soil of the State had been cleared of the invaders and normal conditions restored its people could be free to decide their future by the democratic method of plebiscite or referendum which in order to ensure complete impartiality might be held under international auspices.
The Security Council met on January 15, 1948. The Indian delegation also included Sheikh Mohammad Abdullah, head of Interim Government under Indian occupied Kashmir. The Indian representative referred to note of Mountbatten on instrument of accession that question of State’s final accession should be settled by reference to the people of Kashmir. Pakistan’s representative protested against Indian forces in Kashmir. He said that in the presence of Indian forces people of Kashmir could not express free will. Pakistan’s Foreign Minister made a forceful speech for five hours and made a history in records of United Nations. On January 20, 1948 Security Council by resolution No.39, established the United Nations Commission on India & Pakistan (UNCIP). On February 8, 1948 discussions in the UNO broke down on the question of free administration, as India wanted Sheikh Mohammad Abdullah to continue as head of the administration during plebiscite or referendum.
Negotiations again resumed in March 1948 in UNO and on April 21, 1948 a resolution was passed according to which Government of Pakistan was asked to withdraw from Jammu & Kashmir all its forces, tribal & Government of India was asked to reduce her forces to minimum strength after which plebiscite be held on the question of accession of State to India or Pakistan. The resolution asked for U.N delegation to proceed to sub-continent at-once. It did not condemn Pakistan as aggressor as desired by India nor it touched upon the legal aspect of Kashmir’s accession to India. The UN Security Council resolution of April 21, 1948, clearly states that the final status of Jammu & Kashmir should be decided through an impartial plebiscite held under the auspices of the world body.
The United Nations resolutions of August 13, 1948 and January 5, 1949, proposed the plebiscite option for resolving the Kashmir dispute. These resolutions laid down the principles and procedures for a free and impartial plebiscite under UN auspices. Both India and Pakistan accepted the United Nations Resolutions. However, later, differences arose over the interpretation of various clauses of the resolutions, especially on the issues of demilitarization and disbandment/ disarming of the “Azad Kashmir” forces. India gave its own interpretation to the agreement and suggested that the Azad Kashmir forces be disbanded and the defence and administrative responsibility of the region be given to India and Indian Kashmiri authorities.
Pakistan, on the other hand, was in favour of a complete and simultaneous withdrawal of forces by both countries. By early 1948 Nehru had developed second thoughts about the plebiscite. The Indian leadership from the very beginning was aware that the majority of Kashmir was against accession with India and after dismissal of Sheikh Abdullah in August 1953 the alienation among Kashmiri people became increased.
Indian Constituent Assembly in 1949 adopted Article 370 of the Constitution, ensuring a special status and internal autonomy for Jammu and Kashmir with Indian jurisdiction in Kashmir limited to the three areas: defence, foreign affairs and communications. This was confirmed by Abdullah in 1952 Delhi Agreement and the State was allowed to have its own flag. In reality, Article 370 which was envisioned as a temporary measure till self-determination has been seriously eroded over years with the collusion of local ministers installed in rigged elections, by extending various articles like 356 and 357 to the State, by virtue of which the Centre can assume the government of the State and exercise its legislative powers.
Today, Kashmiri’s are worse off than people in other States in many respects: having been denied rights, Article 370 eroded and repressive acts such as Armed Forces Special Powers Act which lead to arbitrary arrests, torture and killing of thousands of innocent civilians.
