Indian stance lacks legal basis
The landing of Indian troops in Srinagar on 27th October, 1947, on the basis of an instrument of accession that the Indians claim was signed by the ruler of Kashmir but which was neither part of the official record concerning partition nor has ever been shown to the world, does not have a legal basis. The legal experts are of the opinion that in consonance with article 7 of the Indian Independence Act all agreements and treaties with the princely states or their rulers stood terminated on 15th of August, 1947. Therefore Maharaja of Kashmir ceased to be the legal ruler of the state and hence was not in a position to sign the instrument of accession.
Granted that the Maharaja did sign the accession and he was legally competent to enter into an agreement with the Indian dominion, it is pertinent to note that the accession itself was provisional as is manifest by the letter that Lord Mountbatten wrote to Maharaja in October 1947 accepting the accession provisionally and making it clear that the state would only be incorporated into the Indian Union after a reference had been made to the people of Kashmir. It thus clearly acknowledged ascertaining the will of the people, which was never done.
According to the Indian Independence Act, the rulers of princely states were given the choice to freely accede to either India or Pakistan, or to remain independent. They were, however, advised to keep the geographical proximity and demographic realities in view while deciding the accession. It is also a recorded history that Lord Mountbatten in his address to the special full meeting of the Chamber of Princes in New Delhi on 25th July, 1947, told the princes of the princely states that they were free to join any one of the dominions, India or Pakistan, however, while acceding to any dominion they should take into account geographical contiguity and wishes of the people. It is thus quite evident that in the so-called instrument of accession as well as the partition plan, two elements were of paramount importance i.e., the will of the people and geographical contiguity.
In the case of Kashmir, both these elements were negated. The revolt of Kahmiris against their ruler’s pretensions to join India and the resultant war between India and Pakistan is also a strong testimony to the fact that the people of Kashmir wanted to join Pakistan. Kashmir was contiguous to Pakistan and majority of its population was also Muslim. It had cultural and historic links with Pakistan and had remained under Muslim rule for centuries before Ranjit Singh annexed it.
Encyclopedia Britannica also highlighted this reality in these words: “Although there was a clear Muslim majority in Kashmir before the 1947 partition and its economic, cultural, and geographic contiguity with the Muslim-majority area of the Punjab (in Pakistan) could be convincingly demonstrated, the political developments during and after the partition resulted in a division of the region. Pakistan was left with territory that, although basically Muslim in character, was thinly populated, relatively inaccessible, and economically underdeveloped. The largest Muslim group, situated in the Vale of Kashmir and estimated to number more than half the population of the entire region, lay in Indian-administered territory, with its former outlets via the Jhelum valley route blocked.”
In regards to the UN resolution on Kashmir, it is relevant to point out that in the wake of the war that broke out between the two countries after the landing of Indian forces in Kashmir, it was India who took the matter to the United Nations, which facilitated an immediate ceasefire. The UN during the course of its deliberations on the subject passed 23 resolutions, including two UNICEP resolutions of 13th August, 1948, and 5th January, 1949, calling for a plebiscite in Kashmir under the auspices of the United Nations.
It is quite evident that like the supposed instrument of accession and the partition plan, the UN resolutions also vividly recognised the right of the people to decide their own future through a process of self-determination. It is also pertinent to mention that the UN through its resolutions 91 and 122 also repudiated Indian stance that the issue of accession of Kashmir had been resolved by the constituent assembly of Kashmir. These resolutions reiterated that the question of accession could not be resolved by any means other than enunciated in the UN resolutions on the subject. This proves beyond any doubt that the Indian claims of Kashmir being an integral part of India represents travesty of the facts and lack any legal basis.
In the wake of 1971 war between India and Pakistan, Simla Agreement was signed and clause 6 of the agreement emphasised the resolution of all disputes between the two countries including Kashmir through peaceful means, bilaterally. The very fact that India acknowledged Kashmir as a disputed territory in Simla Agreement belied its claims of Kashmir being its integral part. But unfortunately the Indians have never shown honesty of purpose in resolving this issue and have used varying tactics to suspend or scupper the process of dialogue. It has always remained evasive on the core issue of Kashmir.
The Indians also claim that in view of the Simla Agreement, Pakistan cannot internationalise the Kashmir dispute. That stance is also devoid of any legality. Article 103 of UN Charter says: “In the event of a conflict between the obligations of the members of the UN under the present charter and their obligations under any other international agreement, their obligations under the present charter will prevail.” What it means is that the UN resolutions on Kashmir will take precedence over all other international agreements on the same issue. So Pakistan is very much within its right to invoke UN resolutions, after having been frustrated to find solution through the bilateral arrangement. As is evident Indian stance on Kashmir has no legal basis.
Prime Minister Nawaz Sharif was therefore right in highlighting the issue at the UN and with President Barack Obama urging the former to fulfill its obligation towards the people of Kashmir and the latter to facilitate resolution of this contentious issue between the two nuclear neighbours. Resolution of the Kashmir issue is in the interest of both the countries and the region from the perspective of regional security and shared economic prosperity that awaits to be unleashed. India needs to show matching response and commitment to the peace overtures by Pakistan.
Malik Muhammad Ashraf is an academic. He can be contacted at: [email protected].
Mr Ashraf. Let's make it clear, it was Pakistan's fault of sending Pashtun tribals in 1947 to unleash a wave of terror, arson, murder and rape to the people of Kashmir, hence the Maharaja of Kashmir had to respond by asking the newly independent India to send the army. The only way to do it was, of course, acceding to India through the instrument of accession which is irrevocable, and legitimizes it as a state within the Indian union. On the other hand, what does Pakistan have to prove that the portion of Kashmir you occupy (i.e. Azad Kashmir and Gilgit-Baltistan Areas) is of legitimate possession? Nothing. And who gave Pakistan the authority to gift a portion of land of Kashmir to China? Is it your father's land? And what audacity does Pakistan have to claim Jammu and Kashmir while its own Balochis talk of secession. By making Kashmir an independent country, who do you think is fit to become rulers? Al-Qaeda, Taleban and Hizb-ul-Mujahideen supporters who kill innocent people in the name of Islam? Don't you think, Mr Ashraf, it is time Pakistan grows up and takes stock of its own folly? First the 1947 debacle to sending looters much to dismay of your then Mr Jinnah of how they disobeyed his orders and started causing mayhem, the shame of 1965, the utter defeat of 1971 and the loss of Bangladesh, the loss of 1999 Kargil war, and the proxy wars you have been fighting post-1971 since you cowards cannot face us Indians directly that has culminated worse to 2008 Mumbai attacks coming from your own soil … you guys have a proud record, haven't you? Now you test Indian resilience by pesky ceasefire violations and the cannibalistic way of decapitating the heads of our Jawans and taking that as your prize trophy? What kind of human beings are you as a nation? Reflect on that. You then talk of the US, the UN and God knows who to help you, and they all tell you, including your dear friend China and Saudi Arabia, that sort it out with India. And India has one clear message, we will talk as nations, but first stop your cross-border terrorism. But you guys can't do that. Look at your FATA areas, they are a mess, an utter mess. No minority is safe in Pakistan. Even Muslims of India and the world are saying, Pakistan must liquidate itself and become part of India again. Yet what stake does Pakistan still have in Kashmir, we all wonder. Is your hate for India leading you to your own destruction? Because just figure this out – India is not sending drone strikes to your country, and the Americans are certainly not using our bases. So Mr Ashraf, analyze first before you publish. Anyways, the dynamics of the region has changed now and India is a clear winner, the world and the UN knows that. Pakistan better know it earlier before it is too late. That is all we Indians can say!
Haha. What a nonsensical response. You have not given any arguments to counter the writer's arguments instead you have tried to divert attention by making foolish statement which have no relation to the points put forward by the author. Typical response of someone who has lost an argument and can't counter the issues on technical or moral grounds. As they say violence is the last refuge of a scoundrel. Bro, before dishing out unsolicited advice and giving sermons on righteousness, i suggest you take a stock of all the lies, deception and dishonesty Indian leaders have put up to deal with this issue and condemn them and fight for what is just and truthful. even if it means losing out Kashmir. I wonder if you have the moral courage to do that 🙂
Mr. Amit why are you on fire? you have said we will talk as nation? you have no logic at all in above writing. is it not represent you as a nation? the way of talk rhetoric.your above talk can be in a nutshell 'Argumentam ad hominem".
you have just say what you daily see to your media. If you people as a nation are rightious then why you avoid to dialogue on kashmir issue. If the kashmiri people are satisfied with you people then why not you think about plebiscite? you have comment about pakistan occupied kashmir If we as you said occupied it then why not an insurgency in pak occupied kashmir? indeed you people indians can never talk to us in kashmir issue.
Mr. Amit,
It is a very correct assessment of Pakistan thinking but sorry to say that you just wasted your time. Frankly if you put dog's tail in tube for how long you want is not going to straighten.We have to wait for the day when Pakistan has nothing left to lose due to its own ill conceived policies.
Site Admin….Itni G@@nd kion fati hai teri ?
LOL
Pakis are still talking about Kashmir? Look what you have accomplished with the lands and ethnic groups u got in 1947. Literally coming apart, Sunni-Shia nurder spree all over, begging bowl to USA for living. whole world is spitting on you. Talk about Kashmir?
Fantastic article Sir. A slap on the faces of our 'brothers' across the border whose tail has been set on fire by your article (as is evident by the preceding comments) LOL. Great analysis. We should highlight these issues on all forums all over the world to embarrass Indians for their dishonesty.
Possesion is nine points in law
Pakistanis love to live in delusions and denials. no wonder they ban social media every now and than.Similarly, my comments driving hole into author’s lies and claims also not published as it will burst the bubble of delusions. It will not get u Kashmir. Never
What a typic thinking by these so called cecular indians. What are you doing with ur country?? Baby let me help u to remember that in more than 13 provinces of india the freedom struggles are being started. First stop ur own hindu brother from ditching u then question us. Kasmir is our jannah on this globe which'll be handed over to its real lovers,owners brothers of Pakistan,….
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