The
sub-continent was partitioned on the agreed principle that contiguous Muslim majority areas were to be separated from the
contiguous non-Muslim majority areas, to form the two independent states of Pakistan and India. There were about 562 Princely States, which existed under the overall paramountcy of the
British Crown. The Cabinet Mission, in its statement of May 16, 1946, clarified that ‘Paramountcy could neither be retained by the British Crown nor transferred to the new Government’. Also, in Section 7 of the Indian Independence Act, 1947, it was stated that ‘the
suzerainty of His Majesty over the Indian States lapses.’ Thus, legally the Princely States became independent. However,
the last British Viceroy Lord Mountbatten, during his address to the Chamber of Princes on July 25, 1947, asserted that ‘the rulers were technically at liberty to link with either
of the dominion (India or Pakistan)’. As regards the criteria to be followed, he held that ‘normally geographical
situation and communal interests and so forth will be the factors to be considered.’ On various occasions between June
and July 1947, Quaid-e-Azam Mohammad Ali Jinnah, the Governor General-designate of the new State of Pakistan, stated, ‘The
legal position is that with the lapse of Paramountcy on the transfer of power by the British all Indian States would automatically
regain their full sovereign and independent status. They are, therefore, free to join either of the two Dominions or to remain
independent. The Muslim League recognizes the right of each State to choose its destiny. It has no intention of coercing any
State into adopting any particular course of action.’ By August 15, 1947, the majority of the Princely States, owing to their geographical contiguity and Hindu population, joined India while only ten joined Pakistan. However, disputes over independence arose with India in the case of three Princely States, namely Junagadh, Hyderabad and Jammu and Kashmir.
Junagadh,
a maritime state in Kathiawar, with a Muslim ruler and a Hindu majority population, decided
to accede to Pakistan on August 15, 1947. By middle of September 1947 Pakistan accepted the accession. India
reacted by criticising Pakistan’s acceptance as ‘in utter violation of the principles
on which Pakistan was agreed upon and effected.’ On September 17, India deployed troops around Junagadh and by November 1947 India had militarily annexed the State, as its first expansionist act after the partition
of 1947. It is to be noted that this happened when Pakistan had no defence structure of any sort. Pakistan’s complaint, claiming Junagadh as its territory, is still pending before the Security
Council. Similarly, Hyderabad, also with a Muslim ruler and a majority Hindu population, despite
Indian pressures, decided to remain independent and in fact executed a Standstill Agreement with India in November 1947, which India duly signed. However, India continued to increase pressure on Hyderabad and by
the middle of 1948 had imposed an economic blockade as well as carried out border raids. During a parliamentary debate, on
July 30, 1948, the then British Prime Minister, Winston Churchill referred to a speech by Pandit Nehru made in the last week
of July, 1947, in which he had declared, ‘If and when we consider it necessary we will start military operations against
Hyderabad.’ Commenting on this remark, Winston Churchill said ‘It seems to me that this is the sort of thing which
might have been said by Hitler before the devouring of Austria.’ On August 24, 1948,
Hyderabad filed a complaint before the Security Council, but before the
case was heard before the Council, Hyderabad was militarily annexed by India on September 13, 1948.
While
India laid claim on the other two Princely States on the basis of them being Hindu majority areas, as well as geographically
contiguous to India, and that the partition of the sub-continent was agreed to on these principles, it did not apply the same
principle to the Jammu and Kashmir State, which had a Muslim majority population, under a Hindu ruler who was in favour of
remaining independent. During the previous hundred years, the subjects of the Jammu and Kashmir State had been in a state of ongoing series of revolts against the
Dogra rulers. When Partition took place, the Muslim majority population of Jammu and Kashmir was in favour of joining Pakistan,
whereas the Hindu Maharaja was reluctant, hoping that he would retain his independence. Internally, there were already tensions
due to repressive measures of the Maharaja against the Muslims. The situation further deteriorated when, towards the end of
July 1947, the Maharaja ordered the Muslims to surrender their arms to the police, and communal violence erupted. In the Jammu province, thousands of Muslims were massacred by the Hindus and Sikhs, who attacked
Muslim villages. The massacre was one of the first attempts of ethnic cleansing, which, in fact, had begun even before independence,
with the connivance of the local administration comprising units of the Maharaja’s Army and Police. In August 1947,
on the eve of Partition, Poonch revolted against the Maharaja’s rule and in September 1947, the Muslim population liberated
the area from the State Police. According to some estimates, between August-October 1947, in the State of Jammu and Kashmir
out of the Muslim population of 500,000 about 200,000 just disappeared, presumably were killed, and many Muslims from among
the rest fled to the neighbouring West Pakistan (now Pakistan).
Another
significant development of the time was that on August 12, 1947, the then Prime Minister of Jammu and Kashmir,
Janak Singh, proposed a ‘Standstill Agreement’ to both India and Pakistan.
This was agreed to and signed by Pakistan
on August 15, but India was reluctant and suggested further discussions, keeping matters
pending. Eventually no discussion took place and, thus, the ‘Standstill Agreement’ was never signed by the Indian
government with the Maharaja of Kashmir even though it had signed a Standstill Agreement on November 29, 1947, with Hyderabad,
since Prime Minister Nehru had other plans to annex the State of Jammu and Kashmir.
In
October 1947, there was a revolt by the Muslim population against the Maharaja. He fled from the capital Srinagar to Jammu on October 26, 1947, and appealed to India for help. India claims that the Maharaja signed the ‘Instrument of Accession’ on October 26, following which the Indian
forces landed in the State supposedly on October 27, 1947. Regarding the signing of the Instrument of Accession, its timing, terms and conditions, and the timing of the landing
of Indian troops, are all controversial. According to British historian, Alastair Lamb, initially the Maharaja sent the Deputy
Prime Minister, R. L. Batra, to New
Delhi, on October 24, with
a ‘letter of accession to India’
which could not be signed. Mr. Batra, in New Delhi, held
discussions with ‘who would listen to him; but his mission was fruitless.’ The study of historical events shows
that this was certainly no blanket unconditional Instrument of Accession but rather a statement of the terms upon which an
association between the State of Jammu and Kashmir and the Indian Dominion might be negotiated in return for military assistance.
The Indian side have been careful to avoid specific reference to this particular document in their descriptions of the State
of Jammu and Kashmir’s plea for assistance. It is probable that it involved
no more than a token diminution of the State’s sovereignty. It certainly did not provide for an administration in the
State of Jammu and Kashmir presided over by Sheikh Abdullah.
Moreover,
research also shows that Indian leaders were not in favour of signing the Instrument of Accession before any military help
was provided to the Maharaja. As has been mentioned above the Maharaja was not in favour of unconditional surrender of sovereignty.
Pandit Nehru, however, was of the view that what was required was ‘not so much the formalities of accession as some
pragmatic arrangement whereby the Maharaja’s government might be obliged to collaborate politically with Sheikh Abdullah
and his National Conference, bolstered in power by Indian arms.’ Also, during the Indian Defence Committee meeting on
October
25, 1947, which discussed the situation
in Jammu and Kashmir, V. P. Menon stressed, ‘it would technically be quite
proper for India to send its forces to the State of Jammu and Kashmir without its prior accession to India, be it definitive or provisional.’ (Alastair Lamb, Birth of a Tragedy: Kashmir 1947,
p.82)
Subsequent
research has also thrown doubts on the official Indian version, which claims that its intervention was legal, basing it on
the signing of the so-called ‘Instrument of Accession’ signed by Maharaja Hari Singh. According to the British
historian Alastair Lamb, the Maharaja was forced to sign a conditional Instrument of Accession after the Indian troops had
landed at Srinagar. (Incomplete Partition, p.175) Article 49 of the Vienna Convention
on the Law of Treaties states: ‘A treaty is invalid if its conclusion is procured by the threat or use of force in violation
of the principles of the Charter of the United Nations.’ Therefore, the fact that the Instrument of Accession was signed
under duress in the presence of Indian troops ‘points to the use of force in obtaining consent of the Maharaja to the
said Instrument. This makes it patently defective.’
The
next significant element in that drama was the connivance of Lord Mountbatten, both as out-going Viceroy and later as the
first Governor General of India.
While receiving the Instrument of Accession regarding the State of Jammu and Kashmir, Lord Mountbatten, explicitly stated
in his acceptance letter of October 27, 1947, addressed to the Maharaja, that ‘…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 State’s
accession should be settled by the reference to the people.’
India’s military intervention in Jammu and Kashmir
in October 1947 was also accompanied by the solemn assurances of the Indian Government to the Government of Pakistan that
the final decision would be in accordance with the wishes of the people of the State. The Indian Prime Minister in a telegram,
dated October
27, 1947, to the Prime Minister of Pakistan
stated: ‘I should like to make it clear that the question of aiding Kashmir
in the 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.’
In another telegram dated October 31, 1947, Prime Minister Nehru again pledged: ‘Our assurance that we shall withdraw
our troops from Kashmir as soon as peace and order are restored and leave the decision regarding the future of this 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’.
Again, on November
2, 1947, in a broadcast on All-India
Radio, Prime Minister Nehru declared that the Government of India ‘was prepared when peace and order have been established
in Kashmir to have a referendum held under international auspices like the United Nations.’
These statements reflect the ‘conditional and provisional’ nature of the so-called accession. It establishes that
the accession of Kashmir to India was not complete, final and irrevocable as contended by India. It was no more than an ad hoc and temporary arrangement and was subject to reference
to the people for its final disposal.
India repeated the same commitment of deciding the question of the accession of Jammu and Kashmir in accordance with the wishes of the people of the State, when it took the issue to the United
Nations in January 1948. The Indian representative made this commitment in the UN (discussed in section on Right of Self-determination).
Although India took the issue under Chapter VI, titled “Pacific Settlement
of Disputes” of the UN Charter, and not under Chapter VII, titled “Action with respect to Threats to the Peace,
Breaches of the Peace, and Acts of Aggression”, the Indian efforts were to get Pakistan declared as an ‘aggressor’.
The Indian Representative to the UN in para 6 of the letter, dated January 1, 1948, stated: ‘The grave threat
to the life and property of innocent people in the Kashmir Valley and the security of the State of Jammu and Kashmir that
had developed as a result of the invasion of the Valley demanded immediate decisions by the Government of India.’ Adaress
Sein Annand, a Judge of High Court of Jammu and Kashmir,
in his book writes: As Lord Birdwood, British historian, observed, ‘Illegal act of aggression by Pakistan and a legal accession of Kashmir
to India is, therefore, the basis of the Indian case.’ Also, important
to note are the arguments of the Indian spokesman, during the discussions in the Security Council in January 1948, where he
stressed, ‘We have referred to the Security Council a simple and straightforward issue…The withdrawal and expulsion
of the raiders and the invaders from the soil of Kashmir…’ Moreover, the government of India appealed to the Security Council, to ask the Government of Pakistan: (1) to prevent
government personnel, military and civil, participating in or assisting the invasion of Jammu and Kashmir State; (2)
to call upon other Pakistani nationals to desist from taking any part in the fighting in Jammu and Kashmir State…
(A. S. Anand, The Development of the Constitution of Jammu and Kashmir, p. 101)
As
regards the controversy of ‘invaders’ or ‘raiders’ from Pakistan, as alleged by India, according to
research by Alastair Lamb, the Pathan tribesmen from the Pakistani side, crossed
over on the night of 21/22 October 1947 ‘at the invitation of internal elements in the political struggle then going
on in the State of Jammu and Kashmir. The clearing of the way into the State at Domel was not that of forced entry by the
tribesmen but of a gate being opened, as it were, by rebels within the State of Jammu and Kashmir.’ (Kashmir: A Disputed Legacy, p.154)
Therefore, the entry of tribesmen cannot be regarded as ‘aggression’ as termed by India.
However, when India realised that its
initial attempts had failed and the United Nations, which in clear-cut terms, also supported the right of the self-determination
of the people of Jammu and Kashmir, India started to wriggle
out of its original commitments. For example, on January 20, 1948, the Security Council through Resolution 39 established
a mediatory commission - the United Nations Commission on India and Pakistan (UNCIP)
- to investigate the facts pursuant to Article 34 of the Charter of the United Nations.’ When India saw that its effort
to get Pakistan declared as an ‘aggressor’ was not endorsed by the UN, in the
Security Council discussions, it then adopted differing attitudes on various occasions. As observed by the British scholar,
Rosalyn Higgins, ‘Pakistan clearly felt that no impartial plebiscite could take place under Sheikh Abdullah’s
government; whereas, India, while conceding the possibility of a National Assembly being elected, clearly thought it should
be done while Abdullah was still leader. This in turn led to disagreement on the UN’s role, Pakistan wishing it to have
temporary administrative authority, and India believing it should have an advising and observing
capacity. Above all India regarded accession as complete, and resented the
view of many Security Council members that Lord Mountbatten’s letter regarding accession was an integral part of the
terms of accession.’ (United Nations Peace-Keeping 1946-1947: Documents and Commentary, II, Asia, p.318) It may be recalled
that Lord Mountbatten in his letter to the Maharaja, dated October 27, 1947, explicitly stated that finally ‘the question
of the State’s accession should be settled by the reference to the People.’
