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Excerpts from 'The Myth of Indian Claim to JAMMU
AND KASHMIR ––A REAPPRAISAL'
by Alistair Lamb
THE INDIAN CLAIM TO JAMMU AND KASHMIR - A REAPPRAISAL:
The formal overt Indian intervention in the internal affairs of
the State of Jammu and Kashmir began on about 9.00 a.m. on 27
October 1947, when Indian troops started landing at Srinagar
airfield. India has officially dated the commencement of its
claim that the State was part of Indian sovereign territory to a
few hours earlier, at some point in the afternoon or evening of
26 October. From their arrival on 27 October 1947 to the present
day, Indian troops have continued to occupy a large proportion of
the State of Jammu and Kashmir despite the increasingly manifest
opposition of a majority of the population to their presence. To
critics of India’s position and actions in the State of
Jammu and Kashmir the Government of New Delhi has consistently
declared that the State of Jammu and Kashmir lies entirely within
the sphere of internal Indian policy. Do the facts support the
Indian contention in this respect?
The State of Jammu and Kashmir was a Princely State within the
British Indian Empire. By the rules of the British transfer of
power in Indian subcontinent in 1947 the Ruler of the State,
Maharajah Sir Hari Singh, with the departure of the British and
the lapsing of Paramountcy (as the relationship between State and
British Crown was termed), could opt to join either India or
Pakistan or, by doing nothing, become from 15 August 1947 the
Ruler of an independent polity. The choice was the Ruler’s
and his alone: there was no provision for popular consultation in
the Indian Princely States during the final days of the British
Raj. On 15th August 1947, by default, the State of Jammu and
Kashmir became independent.
India maintains that this period of independence, the existence
of which it has never challenged effectively, came to an end on
26/27 October as the result of two pairs of closely related
transactions, which we must now examine. They are:
(a) an Instrument of Accession of Jammu and Kashmir to India
which the Maharajah is alleged to have signed on 26 October 1947,
and;
(b) the acceptance of this Instrument by the Governor-General of
India, Lord Mountbatten, on 27 October 1947; plus
(c) a letter from the Maharajah to Lord Mountbatten, dated 26
October 1947, in which Indian military aid is sought in return
for accession to India (on terms stated in an allegedly enclosed
Instrument) and the appointment of Sheikh Abdullah to head an
Interim Government of the State; and
(d) a letter from Lord Mountbatten to the Maharajah, dated 27
October 1947, acknowledging the above and noting that, once the
affairs of the State have been settled and law and order is
restored, “the question of the State’s accession should
be settled by a reference to the people.”
In both pairs of documents it will be noted that the date of the
communication from the Maharajah, be it the alleged Instrument of
Accession or the letter to Lord Mountbatten, is given as 26
October 1947, that is to say before the Indian troops actually
began overtly to intervene in the State’s affairs on the
morning of 27 October 1947. It has been said that Lord
Mountbatten insisted on the Maharajah’s signature as a
precondition for his approval of Indian intervention in the
affairs of what would otherwise be an independent State.
The date, 26 October 1947, has hitherto been accepted as true by
virtually all observers, be they sympathetic or hostile to the
Indian case. It is to be found in an official communication by
Lord Mountbatten, as Governor General of Pakistan, on 1 November
1947; and it is repeated in the White paper on Jammu and Kashmir
which the Government of India laid before the Indian Parliament
in March 1948. Pakistani diplomats have never challenged it.
Recent research, however, has demonstrated beyond a shadow of a
doubt that the date is false. This fact emerges from the
archives, and it is also quite clear from such sources as the
memoirs of the Prime Minister of Jammu and Kashmir at the time,
Mehr Chand Mahajan, and the recently published correspondence of
Jawaharlal Nehru, the Indian Prime Minister. Circumstantial
accounts of the events of 26 October 1947, notably that of V.P
Menon (in his The Integration of the Indian States, London 1965),
who said he was actually present when the Maharajah signed, are
simply not true.
It is now absolutely clear that the two documents (a) the
Instrument of Accession, and (c) the letter to Lord Mountbatten,
could not possibly have been signed by the Maharajah of Jammu and
Kashmir on 26 October 1947. The earliest possible time and date
for their signature would have to be the afternoon of 27 October
1947. During 26 October 1947 the Maharajah of Jammu and Kashmir
was travelling by road from Srinagar to Jammu. His Prime
Minister, M.C. Mahajan, who was negotiating with the Government
of India, and the senior Indian official concerned in State
matters, V.P. Menon, were still in New Delhi where they remained
overnight, and where their presence was noted by many observers.
There was no communication of any sort between New Delhi and the
traveling Maharajah. Menon and Mahajan set out by air from New
Delhi to Jammu at about 10.00 a.m. on 27 October, and the
Maharajah learned from them for the first time the result of his
Prime Minister’s negotiations in New Delhi in the early
afternoon of that day.
The key point, of course, a has already been noted above, is that
it is now obvious that these documents could only have been
signed after the overt Indian intervention in the State of Jammu
and Kashmir. When the Indian troops arrived at Srinagar air
field, that State was still independent. Any agreements
favourable to India signed after such intervention cannot escape
the charge of having been produced under duress. It was, one
presumes, to escape just such a charge that the false date 26
October 1947 was assigned to these two documents. The
deliberately distorted account of that very senior Indian
official, V.P. Menon, to which reference has already been made,
was no doubt executed for the same end. Falsification of such a
fundamental element as date of signature, however, once
established, can only cast grave doubt over the validity of the
document as a whole .
An examination of the transactions behind these four documents in
the light of the new evidence produces a number of other serious
doubts. It is clear, for example, that in the case of (c) and
(d), the exchange of letters between the Maharajah and Lord
Mountbatten, Lord Mountbatten’s reply must antedate the
letter to which it is an answer unless, as seems more than
probable, both were drafted by the Government of India before
being taken up to Jammu on 27 October 1947 (by V.P. Menon and
Jammu and Kashmir Prime Minister M.C. Mahajan, whose movements,
incidentally, are correctly reported in the London Times of 28
October 1947) after the arrival of the Indian troops at Srinagar
airfield. The case is very strong, therefore, that document (c),
the Maharajah’s letter to Lord Mountbatten, was dictated to
the Maharajah.
Documents (c) and (d) were published by the Government of India
on 28 October 1947. The far more important document (a), the
alleged Instrument of Accession, was not published until many
years later, if at all. It was not communicated to Pakistan at
the outset of the overt Indian intervention in the State of Jammu
and Kashmir, nor was it presented in facsimile to the United
Nations in early 1948 as part of the initial Indian reference to
the Security Council. The 1948 White Paper in which the
Government of India set out its formal case in respect to the
State of Jammu and Kashmir, does not contain the Instrument of
Accession as claimed to have been signed by the Maharajah:
instead, it reproduces an unsigned from of Accession such as, it
is imposed, the Maharajah might have signed. To date no
satisfactory original of this Instrument as signed by the
Maharajah ever did sign an Instrument of Accession. There are,
indeed, grounds for suspecting that he did no such thing. The
Instrument of Accession referred to in document (c); a letter
which as we have seen was probably drafted by Indian officials
prior to being shown to the Maharajah, may never have existed,
and can hardly have existed when the letter was being prepared.
Even if there had been an Instrument of
Accession, then if it followed the form indicated in the unsigned
example of such an Instrument published in the Indian 1948 White
Paper it would have been extremely restrictive in the rights
conferred upon the Government of India. All that were in fact
transferred from the State to the Government of India by such an
Instrument were the powers over Defence, Foreign Relations and
certain aspects of Communications. Virtually all else was left
with the State Government. Thanks to Article 370 of the Indian
Constitution of January 1950 (which, unlike much else relating to
the former Princely States, has survived to some significant
degree in current Indian constitution theory, if not in
practice), the State of Jammu and Kashmir was accorded a degree
of autonomy which does not sit at all comfortably with the
current authoritarian Indian administration of those parts of the
State which it holds.
Not only would such an Instrument have been restrictive, but also
by virtue of the provisions, of (d), Lord Mountbatten’s
letter to the Maharajah dated 27 October 1947, it would have been
conditional. Lord Mountbatten, as Governor-General of India, made
it clear that the State of Jammu and Kashmir would only be
incorporated permanently within the Indian fold after approval as
a result of some form of reference to the people, a procedure
which soon (with United Nations participation) became defined as
a fair and free plebiscite . India has never permitted such a
reference to the people to be made.
Why would the Maharajah of Jammu and Kashmir not have signed an
Instrument of Accession? The answer lies in the complex course of
events of August, September and October 1947 emerged. The
Maharajah, confronted with growing internal disorder (including a
full scale rebellion in the Poonch region of the State), sought
Indian military help without, it at all possible, surrendering
his own independence. The Government of India delayed assisting
him in the hope that in despair he would accede to India before
any Indian actions had to be taken. In the event, India had to
move first. Having secured what he wanted, Indian military
assistance, the Maharajah would naturally have wished to avoid
paying the price of the surrender of his independence by signing
any instrument which he could possibly avoid signing. From the
Afternoon of 27 October 1947 onwards a smoke screen conceals both
the details and the immediate outcome of this struggle of wills
between the Government of India and the Maharajah of Jammu and
Kashmir. To judge from the 1948 White Paper an Instrument of
accession may not have been signed by March 1948, by which time
the Indian case for sovereignty over Jammu and Kashmir was
already being argued before the United Nations.
The patently false dates of documents (a) and (c) alter
fundamentally the nature of the overt Indian intervention in
Jammu and Kashmir on 27 October 1947. India was not defending its
own but intervening in a foreign State. There can be no
reasonable doubt that had Pakistan been aware of this
falsification of the record it would have argued very differently
in international for from the outset of the dispute; and had the
United Nations understood the true chronology it would have
listened with for less sympathy to arguments presented to it by
successive Indian representatives. Given the facts as they are
now known, it may well be that an impartial international
tribunal would decided that India had no right at all to be in
the State of Jammu and Kashmir.
The Indian Claim to Jammu and Kashmir - Conditional
Accession, Plebiscites and the Reference to the United Nations:
While the date, and perhaps even the fact, of the accession to
India of the State of Jammu and Kashmir in late October 1947 can
be questioned, there is no dispute that at that time any such
accession was presented to the world large as conditional and
provisional. In his letter to the Maharajah of Jammu and Kashmir,
bearing the date 27 October 1947, the Governor General of India,
Lord Mountbatten, declared that:
"Consistently with 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 to 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 invaders the question of the State’s
accession should be settled by a reference to the people."
The substance of this was communicated by Jawaharlal Nehru to
Liaquat Ali Khan in a telegram of 28 October 1947 in which Nehru
indicated that this was a policy with which he agreed. The point
is clear enough. A reference to the people would be entirely
futile unless it contained the potential of reversing the process
of accession. If the people opted for Pakistan, or indeed, for
continued independence, then any documents relating to accession
which the Maharajah may have signed would be null and void. Such
documents would perforce be provisional, in that they could
confer rights only until the reference to the people took place;
and they were conditional in that they could not continue in
force indefinitely unless ratified by popular vote. This point is
as valid today as it was in late October 1947.
Indian apologists have since endeavored to argue that the
plebiscite proposal was personal to Mountbatten (which we can see
it was not) and that it was in a real sense ex-gratia and in no
way binding on subsequent Indian administrations. The fact of the
matter, however, was that the plebiscite policy had been
established long before the Kashmir crisis erupted in October
1947. It was an inherent part of the process by which the British
Indian Empire was partitioned between the two successor Dominions
of India and Pakistan. Plebiscites (or referenda-the terms tended
to be used at this time as if they meant the same thing) had been
held on the eve of the Transfer of Power in August 1947 in two
areas. In the North West Frontier Province, which possessed a
Congress Government despite a virtually total Muslim population,
and in Sylhet, a Muslim majority district of the non-Muslim
majority Province of Assam, there had been plebiscites where the
people were given the choice of joining India or Pakistan. In
both cases the vote was in favour of Pakistan. The Sylhet
Plebiscite is of particular significance in that it gave a Muslim
majority district of a State with an overall non-Muslim majority
the opportunity to join its Muslim majority neighbour, Bengal.
The value of the plebiscitary process continued to be appreciated
in India after the British Indian Empire had come to an end. In
September 1947 the Government of India advocated, as a matter of
policy, the holding of a plebiscite in the Princely State of
Junagadh. Junagadh was in many respects the mirror image of
Kashmir. Here a Muslim Ruler, the Nawab, had formally acceded to
Pakistan on 15 August 1947 despite the fact that the overwhelming
majority of his subjects were Hindus. The Government of India
were united in opposing this action. However, as Jawaharlal Nehru
put it on 30 September 1947 :
"We are entirely opposed to war and wish to avoid it. We
want an amicable settlement of this issue and we propose
therefore, that wherever there is a dispute in regard to any
territory, the matter should be decided by a referendum or
plebiscite of the people concerned. We shall accept the result of
this referendum whatever it may be as it is our desire that a
decision should be made in accordance with the wishes of the
people concerned. We invite the Pakistan Government, therefore,
to submit the Junagadh issue to a referendum of the people under
impartial auspices."
In Indian eyes, in other words, Junagadh’s accession to
Pakistan, if it had any validity at all could only be provisional
and conditional upon the outcome of a plebiscite of referendum.
India, moreover, considered that the need for such a reference to
the people was specifically determined by the fact that a
majority of the State’s population followed a different
religion to that of the Ruler. A plebiscite in Junagadh was duly
held in February 1948, when the vote was for union with India. In
Indian official thinking, it is clear, there was no question of a
plebiscite in any State where both Ruler and people were
non-Muslims.
Thus when the Kashmir crisis broke out in October 1947 the
plebiscite was already established as the official Indian
solution to this order of problem. On 25 October 1947, before the
Kashmir crisis had fully developed and before Indian claims based
on the Maharajah’s accession to India had been voiced, Nehru
in a telegram to Attlee, the British Prime Minister, declared
that:
"I should like to make it clear that [the] question of
aiding Kashmir…..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 must be decided in accordance with the wishes of the
people, and we adhere to this view."
On 28 October 1947 the Governor General of Pakistan M.A. Jinnah,
also agreed that the answer to Kashmir lay in a plebiscite, thus
confirming the official Pakistan policy on this subject. From
this moment the basic disagreement between the two Dominions, at
least on paper, lay in the modalities for holding a plebiscite
and what was understood by “impartial auspices”.
The concept of impartial supervision of the determination of
sovereignty had been present from the outset of the run up to the
partition of the Punjab and Bengal in early June 1947. A number
of possibilities had been considered at this period, including
the request for the services of the United Nations (which had
then been rejected on technical grounds arising in the main from
the short span of time allowed for the partition process to be
implemented). In connection with the Junagadh question, on 30
September 1947 Nehru made it clear that if the United Nations
were to be involved (as a result, perhaps, of a reference to that
body by Pakistan), and the United Nations issued directions,
India would “naturally abide by those directions”.
Between 28 October and 22 December 1947 there took place a series
of Indo-Pakistan discussions over the Kashmir question, some with
the leaders of the two sides meeting face to face, some through
subordinate officials and some through British intermediaries
acting either officially or unofficially. While frequently
acrimonious, the general tenor of the negotiations was that some
kind of plebiscite should be held in Jammu and Kashmir. At a
meeting on 8 November 1947 between two very senior officials, V.P
Menon for India and Chaudhri Muhammad Ali for Pakistan, a
detailed scheme for holding a plebiscite in Jammu and Kashmir was
worked out, with the apparent blessing of the Indian Deputy Prime
Minister, Vallabhbhai Patel, in which the following principle was
laid down : that neither Government [of India or Pakistan] would
accept the accession of a State whose rule was of a different
religion to the majority of his subjects without resorting to a
plebiscite.
The 8 November scheme aborted; but the underlying principles
remained on the agenda. There were two major questions. First :
how and in what way should the State be restored to a condition
of tranquility such as would permit the holding of any kind of
free and fair plebiscite. Second: who should supervise the
plebiscite when it finally came to he held. On both question,
after exploring a number of devices including the employment of
British officers to hold the ring while the votes were being
cast, the consensus in the Governments of both India and Pakistan
by 22 December 1947 was that the services of the United Nations,
either through the Secretary General or the Security Council,
offered the best prospect for success, though Nehru continued to
express in public his reservations about “foreign”
intervention.
At this point Lord Mountbatten, the Governor General of India,
explained to Liaquat Ali Khan, the Prime Minister of Pakistan,
that the best way to get Nehru to decide finally in favour of
reference to the United Nations was to permit India to take the
first step, even if in the process Pakistan would have to submit
to some measure of Indian “indictment” to which
Pakistan would have every opportunity to make rebuttal at the
United Nations. Liaquat Ali Khan, so the records make clear,
accepted this proposal. On this basis, on 1 January 1948, India
brought Security Council of the United Nations.
The Presentation of the Indian case, the Pakistani reply, and the
series of debates which followed over the years, have all tended
to obscure the original terms of that Indian reference. This was
made under Article 35 of the Charter of the United Nations in
which the mediation of the Security Council was expressly sough
in a matter which otherwise threatened to disturb the course of
international relations. The issue was an Indian request for
United Nations mediation in a dispute which had transcended the
diplomatic resources of the two parties directly involved, India
and Pakistan, and not, as it is frequently represented, an Indian
demand for United Nations condemnation of Pakistan’s
“aggression”. This point, despite much Indian and
Pakistan rhetoric, can be determined easily enough by relating
the contents of the reference to the specifications of Article 35
of the United Nations Charter. The United Nations was asked to
devise a formula whereby peace could be restored in the State of
Jammu and Kashmir so that a fair and free plebiscite could be
held to determine that State’s future. The matter of the
Maharajah of Kashmir’s accession to India was not in this
context of the slightest relevance.
The Security Council of the United Nations responded to this
request by devising a number of schemes for the restoration of
law and order and the holding a plebiscite. These were duly set
out in United Nations Resolutions which, though never
implemented, still remain the collective expression of the voice
of the international community as to how the Kashmir question
ought to be settled. The conditions set out by the Security
Council of the United Nations have not been met in any way by the
subsequent internal political processes (including a variety of
elections) in the State of Jammu and Kashmir and in any of its
constituent parts.
The situation in the State of Jammu and Kashmir remains
unresolved, and it remains a matter of international interest.
Given the background to and terms of the original Indian
reference to the Security Council it cannot possibly be said
that, today, Jammu and Kashmir (or those parts of it currently
under Indian occupation) is a matter of purely internal Indian
concern. The United Nations retains that status in this matter,
which it was granted by the original Indian reference, and the
Security Council still has the duty to endeavor to implement its
Resolutions.
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