Kashmir – A Distorted Chapter of History

Salvat Kainat Tatari Commentary, Guest Columnists

Undoubtedly, the territorial conflict in Jammu and Kashmir that is between India and Pakistan has put the whole region of South Asia in unrest and threatened its security since 1947. In fact, the unresolved conflict zone has remained the prime reason behind constant friction between the two countries. In order to understand the legality of the conflict, it is significant to get into a brief history of the region. To start with, it must be made clear that this region of Kashmir consisted of five different areas and it was the princely state of Jammu and Kashmir, ruled by a Hindu maharaja, with a two-third Muslim population (Noorani, 2017). The state was one of the largest princely states created in 1846, after the first Anglo-Sikh war (1845-1846), through the Treaty of Amritsar and sold by the British India Company to Gulab Singh of the Dogra Dynasty for 7.5 million rupees (DAWN, 2020). It is pertinent to mention that the present-day Gilgit Baltistan, a province of Pakistan, was part also of the state of Jammu and Kashmir (Ahmad, 2020). Like all 550 princely states, the state of Jammu and Kashmir also got the choice to join either India or Pakistan depending on the ruler’s consent as per Section 6 of the Government of India Act, 1935 (Pillai, 2020).

The Dogra Maharaja, Hari Singh intended to remain independent and refused to accede to either India or Pakistan (Haq, 2020). However, it is clear that due to the geopolitical and strategic importance of Kashmir, both India and Pakistan wanted Kashmir to accede to them. Lord Mountbatten took the proposal of accession to the Maharaja which he flatly refused by saying, “I do not want to accede to India or Pakistan rather would like to remain independent.” (Bhat, 1981). Later, Mahatma Gandhi met him and tried to convince him but couldn’t move the ruler of Kashmir even an inch from his prior stance. On the other hand, Quaid-e-Azam Muhammad Ali Jinnah extended his support to the Maharaja in his right to accession as per his wishes under the law. Therefore, the Maharaja offered a ‘Stand Still Agreement’ to both India and Pakistan on 15th August 1947, which Pakistan accepted while India pretended to require more time to think about (Dewan, 2008). In the meantime, tribesmen entered Kashmir through its northern border supported by pro-Pakistan elements in Kashmir which resulted in civil unrest (Mehta, 2005). The ruler of Kashmir sought help from other princely states such as Patiala but their forces remained insufficient to help (Haq, 2020). Amidst the illegal invasion, the Deputy Commissioner of Rawalpindi, Khawaja Abdul Rahim, announced a parallel government of Jammu and Kashmir at Palandari, nominating late Sardar Ibrahim Khan as its President on 24th October, 1947 on the basis of the areas that had been declared independent by the locals with the help of tribal people, which the Maharaja considered to be an infringement of the ‘Stand Still Agreement’ (Mehta, 2005). The Maharaja sought India’s help to fight the tribesmen and India, already desirous of the state’s accession to India, asked him to sign an Instrument of Accession in order to receive military assistance (Dawson,1994). As a result, Jawaharlal Nehru ordered troops to enter Kashmir on 26th October, 1947 after the Maharaja fulfilled the condition to sign an Instrument of Accession against his will (Dewan, 2008).

It is to note that most scholars are skeptical about the Instrument of Accession and where and how it was prepared. They also believe that accession never happened (Lamb, 1991) and India just took advantage of the situation (Haq, 2020). In fact, Karan Singh, the son of the then-ruler Maharaja Hari Singh, in multiple interviews while recalling the attacks of the tribesmen which had left the Kashmiris and the state of Kashmir in bloodshed, stated that Hari Singh had wished to remain independent but the illegal invasion by intruders had provoked him, rather pushed him, to accede to India and when he had asked for its military assistance, the condition of accession was put before him (Haq, 2020).

The first and foremost legal issue in the conflict is that the people of Kashmir have not been made party to the dispute despite being the real and principal stakeholders. It is, however, ironic that while these states in power, India and Pakistan, have come to the table several times, India is still unwilling to bring the people of Kashmir to the same table as it does not consider them to be a genuine party to negotiate with. The issue has been a conflict between India and Pakistan even before the United Nations (UN) neglecting the people of Kashmir and the option of their independence altogether. Interestingly, Pakistan has shown interest to make Kashmir a party to the conflict, which it also did before the UN in its First Reply (Fai, 2020). It is also pertinent to note that India has objected to Pakistan’s proposal to include the Kashmiris and have tripartite dialogue because it alleges Pakistan of having undue influence over both sides of Kashmir (north and south) through its establishment and secret agencies. Another argument which India presents to counter Pakistan’s wish to include Kashmir as a third party to the conflict is that Pakistan has imposed a constitution on Kashmir, Article 3, subsection 7 of which states, ‘No person or political party in Azad Jammu and Kashmir shall be permitted to propagate against, or take part in activities prejudicial or detrimental to the ideology of states accession to Pakistan’, apparently revealing the prejudice and biases of Pakistan towards the issue. Moreover, India claims that Pakistan does not allow the Kashmiris to criticize their “occupier” or be able say they want independence or want to accede to India, unlike the Kashmiris in the south because India has not barred them from raising slogans to join Pakistan or even raising the flag of Pakistan. India also claims that all political parties of Kashmir are based in Pakistan and Pakistan’s bureaucracy, armed forces and agencies are at the helm of affairs and see and watch all related aspects – political, constitutional, social and economic – by appointing Pakistanis at principal positions within the bureaucracy, i.e. the Chief Secretary, Inspector General, etc. However, Pakistan denies these allegations and such claims have also not been verified by independent sources.

The second legal issue was that India had gone to the UN and filed a complaint against Pakistan on 1st January, 1948 demanding Pakistan’s withdrawal from its occupation and claiming that Jammu Kashmir had acceded to India thus Pakistan had no right to stay on its soil (Puri, 1993; Moorthy et al., 2013). The case remained under discussion for about ten years during which multiple resolutions had been passed but no final decision could be made. For example, one of the oldest resolutions of the United Nations Security Council (UNSC) was Resolution 47 (S/RES/47) which stipulated that both India and Pakistan must withdraw their military forces from Kashmir after which a plebiscite should held to give choice to the people of Kashmir as to whichever state they want to join. However, it never happened as none of the states in power stepped down and withdrew their militaries from Kashmir, which in turn could not get them to step two, i.e. plebiscite.

It is also noteworthy that India lodged the complaint against Pakistan under Chapter VI of the UN Charter rather than Chapter VII which shows that India intended to seek the settlement of the conflict through peaceful means, meaning that it did not want the UN to take coercive actions against the acts of aggression and threats to peace. This gives rise to certain questions: if India had entered Kashmir only because of the request of the ruler to provide military assistance and Pakistan was a mere illegal intruder, why did India not want the UN to use force under Chapter VII of its Charter? It somehow reveals the true intent of India to send troops to Kashmir, which was definitely not just to extend help to the Maharaja of Kashmir but to coerce the ruler to sign the Instrument of Accession. Another significant legal question is whether India considered Pakistan as an occupier in the first place if it intended to resolve matters peacefully. Similarly, India did not present the Instrument of Accession when it first went to the UN, nor did it attach the same with the document it provided to the UN, which raises various questions regarding the validity of the accession. Pakistan challenged the Instrument of Accession altogether and questioned its legal validity on the basis that consent to an agreement gained through force or coercion made it void.

Legally, the conflict of Kashmir revolves around the Instrument of Accession, which the UNSC has never discussed explicitly, perhaps due to the fact that India has never produced it until recently. The UNSC’s first statements on the issue were its Resolutions 38 and 39, which established the United Nations Commission for India and Pakistan (UNCIP) to investigate the root causes of the Kashmir conflict and mediate and oversee the progress made by the parties. UNCIP was accepted and welcomed by both parties. The next resolution, Resolution 47, outlined the structure for a permanent solution to the conflict. This is still intact. It calls for Pakistan to first withdraw tribesmen and other Pakistani nationals from the territory of Kashmir, followed by India’s withdrawal of forces to minimum strength necessary for the maintenance of law and order, after which a plebiscite is to be held under the supervision of a UN appointed plebiscite administrator.

It is imperative to note that according to India, the UNSC has not explicitly mentioned the Instrument of Accession and its validity. However, it has indicated the presence of tribesmen and Pakistani nationals in Kashmir and by tacit statements asked Pakistan to withdraw them first and then asked India to withdraw its troops and maintain law and order by keeping minimum forces, which automatically validates the Instrument of Accession and at the same time rejects the claims of Pakistan in not being directly involved in the invasion of tribesmen. Similarly, the presence of Pakistani troops in the territory of Kashmir was mentioned by UNCIP in its report but was not called an act of aggression by Pakistan or a violation of Indian sovereignty (Subbiah, 2012).

The right to self-determination is an inherent and inalienable right of the Kashmiris and protected by international law and customary international law. India has illegally revoked the special status of Kashmir (under Article 370 and 35-A) by violating its own Constitution and putting Kashmir under New Delhi’s control, over which Pakistan has continuously protested at various international forums. India is attempting to change the demography of Jammu and Kashmir in sheer violation of international law. The UN should play its role to induce both countries to fulfill UNSC’s commitments in both letter and spirit and ensure that the Kashmiris get to exercise their right of self-determination in a free and fair manner. The Kashmir conflict needs to be resolved according to the wishes of the Kashmiris and in light of UNSC resolutions.

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Salvat Kainat Tatari

Author: Salvat Kainat Tatari

The writer is a High Court lawyer and an LLM candidate at Nottingham Trent University, UK. She has also worked as an Associate Lawyer at the Ministry of Law and Justice, Pakistan.