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Thursday, May 23, 2024

India’s claims on Kashmir rest on a dubious legal instrument

Several historians and researchers have inferred that the so-called instrument of accession did not exist, or was fraudulently ante-dated to justify India’s invasion of the disputed Kashmir State.

Flouting United Nations’ resolutions, India under Narendra Modi converted the disputed Jammu and Kashmir State into its Union territory like other states. AG Noorani rightly pilloried the puerile amendment of Indian maps to annex foreign territory, and tout it as evidence of occupation.

Noorani says, `You cannot claim Mexico by showing it as Indian territory on our maps. The value of foreign maps depends on their provenance, whether in a work of learning or otherwise. Maps in periodicals or books published after a dispute have arisen do not affect either side’s case; only the mental balance of some Indian officials, which is precarious even at the best of times. It is puerile to stamp warnings on issues of foreign magazines’ (AG Noorani, The Frontline, June 5, 2020, Facing the truth).

The ostensible basis for annexation is that India claims that the instrument of accession allows it to do so.

Fraudulent instrument of accession touted by India in Kashmir

Several historians and researchers have inferred that the so-called instrument of accession did not exist, or was fraudulently ante-dated to justify India’s invasion of the disputed Kashmir State. Here I quote from George Irani, Judy Carter, and Vamık Volkan book: “Regional and Ethnic Conflicts: Perspectives from the Front Lines” (page 44):

Pakistan immediately contested the accession, questioning its legitimacy on several grounds. It suggested that the accession document was fraudulent. It further argued that in any case the maharajah had no right to sign an agreement with India when he had fled from the Kashmir Valley and not in control of the state and, therefore,  not in a position to make decisions on behalf of  the people.

Read more: The story of intrigues, deception & the dual accession of Kashmir

No original authentic accession  document has been produced in an international forum or presented to Pakistan or to the United |Nations (in the summer of 1995, Indian authorities reported  the original document as lost or stolen, thus reinforcing doubts about its existence in the first place).

Several other writers have lambasted the myth of the `instrument’. They include Alastair Lamb (‘Incomplete Partition, Kashmir: A disputed legacy 1846-1990’, and ‘Birth of a Tragedy’), and Avtar Singh Bhasin (‘India and Pakistan: Neighbours at Odds), besides a 10-volume documentary study of India-Pakistan Relations 1947-2007. It contains 3649 official documents, accessed from the archives of India’s external affairs ministry. ‘Selected Works of Jawaharlal Nehru’ is another useful resource book.

Other myths regarding the Kashmir issue

There are other myths like ‘Pakistan’s aggression through Army regulars and tribal forces’. Be it noted that when India took the Kashmir issue to the UN in 1948, it did so under article 35 of Chapter VI which outlines the means for a peaceful settlement of disputes.

It is interesting to note here that India did not present the Kashmir case under the UN Chapter VII which relates to acts of aggression as India was alleging Pakistan.

Therefore, it is evident that by raising the issue under Chapter VI, India recognised the Kashmir issue as a dispute, thus conceding that the Instrument of Accession had not confirmed the state to be an integral part of India. India is still party to all the UN resolutions on Kashmir.

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Moreover, India and Pakistan accepted the UN resolutions of January 1948 calling for a plebiscite in Kashmir to exercise the right of self-determination of the people of Kashmir. India’s acceptance of the UN resolutions establishes beyond a doubt, that the future of the status of Kashmir would be determined by its people. Thus, the Instrument of Accession, even if genuine, is rendered null and void.

Alastair Lamb regards the so-called Instrument of Accession, ‘signed’ by the maharajah of Kashmir on October 26, 1947, as fraudulent. He argues that the maharajah was travelling by road to Jammu (a distance of over 350 km). How could he sign the instrument while being on the run for the safety of his life?

There is no evidence of any contact between him and the Indian emissaries on October 26, 1947. Lamb points out Indian troops had already arrived at and secured Srinagar airfield during the middle of October 1947. On October 26, 1947, a further airlift of thousands of Indian troops to Kashmir took place. Stanley Wolpert also points out a lack of concordance between various versions of the ‘accession’ in his book Nehru: A tryst with Destiny.

He says the factual position is that India marched its troops into Kashmir without maharajah’s permission – a blatant act of aggression. Historian Alastair Lamb, in his book, ‘Incomplete Partition (Chapter VI: The Accession Crisis) points out that Mountbatten wanted India to not intervene militarily without first getting the ‘instrument of accession’ from Maharajah [prince] Hari Singh.

Not doing so would amount to ‘intervening in the internal affairs of what was to all intents and purposes an independent state in the throes of civil conflict’. But India did not heed his advice. Lamb says, ‘the timing of the alleged instrument of Accession undoubtedly affected its legitimacy’.

He adds, ‘If in fact, it took place after the Indian intervention, then it could well be argued that it was either done under Indian duress or to regularise an Indian fait accompli.’

Lamb concludes: ‘According to Wolpert, VP Menon returned to Delhi from Srinagar on the morning of October 26 with no signed Instrument of Accession. Only after the Indian troops had started landing at Srinagar airfield on the morning of October 27 did VP Menon and MC Mahajan set out from Delhi from Jammu.

The Instrument of Accession, according to Wolpert, was only signed by Maharaja Sir Hari Singh [if signed at all] after Indian troops had assumed control of the Jammu and Kashmir State’s summer capital, Srinagar.

Perry Anderson says that Kashmir became part of India in 1947 ‘with a forged declaration of accession’, and that the document then disappeared for ‘over half a century’. Perry says, `A facsimile of the crucial page bearing his signature was published more than forty years ago, and the entire document was posted on the website of India’s Ministry of Home Affairs.

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However, when I sought permission to consult the original, I was told – it would be nice to think that the play on words was intentional – that the Indian government had ‘not acceded’ to my request.

Andrew Whitehead, London NW5, says, `There is certainly something fishy about the circumstances of the accession. The evidence is compelling that the maharajah signed on 27 October, but was told to record the date as 26 October.

In other words, he put his name to the document a few hours after India began an airlift of troops to the Kashmir valley (the beginning of a military presence that continues to this day), but in a manner which suggested it had been signed before the military operation began. There’s more about this in my book about Kashmir in 1947’.

Nehru never labeled Pakistan an aggressor at the UN: He never declared Pakistan an aggressor. But he told parliament on March 1, 1954 `that “aggression” took place in Kashmir six and a half years ago with dire consequences. Nevertheless the United States have thus far not condemned it and we are asked not to press this point in the interest of peace (Bhasin pp. 55-56).

Nehru’s commitment to the plebiscite in Kashmir

During debates at the United Nations,  Nehru never referred to the `instrument of accession’ or accession by puppet occupied-Kashmir assembly. In his letter dated October 31, 1947, addressed to the disputed state’s prime minister, on the fourth day of `signing’ of the mythical accession instrument by maharajha on October 26, 1947, Nehru says   `after consideration of the problem, we are inclined to think that it [plebiscite] should be held under United Nations’ auspices (p. 28 ibid.).

He reiterated in New Delhi on November 3, 1951 that `we have made it perfectly clear before the Security Council that the Kashmir Constituent Assembly does not [insofar] as we are concerned come in the way of a decision by the Security Council, or the United Nations’(SWJ: Volume 4: page 292, Bhasin p.228).

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Again, at a press conference on June 11, 1951, he was asked `if the proposed constituent assembly of Kashmir “decides in favour of acceding to Pakistan, what will be the position?”’ he reiterated, `We have made it perfectly clear that the Constituent Assembly of Kashmir was not meant to decide finally any such question , and it is not in the way of any decision which may ultimate flow from the Security Council proceedings’ (SWJ: Volume 15:, Part II, page 394. Bhasin page 56).

He re-emphasised his view once again at a press conference in New Delhi On November 3, 1951. He said `we have made it perfectly clear before the Security Council that the Kashmir Constituent Assembly does not [insofar as] we are concerned come in the way of a decision by the Security Council or the United Nations’.

Till 1952, Nehru remained committed to holding a plebiscite. Bhasin points out that `there was a perceptible shift in his [Nehru’s] stand on July 24 1952` about the future of the State. if the decision of the Security Council was at variance with that of the Constituent Assembly’.

Nehru said, `Unless the Security Council functioned under some other sections of the Charter, it cannot take a decision which is binding upon us unless we agree to it. They are functioning as mediators and a mediator means getting people to agree (SWJ, Volume 19, page 241. Bhasin page 56).

Bhasin points out (page 57 op. cit.) `At the same press conference on 24 July, 1952 when asked what the necessity of a plebiscite was now that he had got the Constituent Assembly, he replied “Maybe theoretically you may be right. But we have given them an assurance and we stand by it (SWJ: Volume 19, pp. 240-241. Bhasin p. 57).

India never registered the Instrument of accession with the United Nations. Maharajah’s signature on the instrument; do not match those recorded in the museum.The UN outlawed the ‘accession’; the accession resolution, passed by the occupied Kashmir’s ‘constituent assembly’ is void.

Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions, Security Council’s Resolution No 9 of March 30, 1951, and confirmatory Resolution No 122 of March 24, 1957, to forestall the ‘foreseeable accession’.

Read more: “India-washing” continues in Occupied Kashmir: rights report

It is eerie to note that the ‘Instrument of Accession’ is not registered with the United Nations. India took the Kashmir issue to the UN in 1948 under article 35 of Chapter VI which outlines the means for a peaceful settlement of disputes on Jammu and Kashmir State, not under Chapter VII dubbing Pakistan as ‘aggressor’. India knew at heart that she herself was an aggressor.

Real basis of `accession’: Might is right, or danda.

It is obvious that India, from Nehru to Modi, had harboured a perfidious contempt for United Nations, or aspirations of Kashmiri people or its leaders.

The cornerstone of India’s foreign policy had all along been “jiski lathi, uski bhains” (he who has the stick, has the buffalo). Simply put, ‘might is right’.

The Greek sage, Thucydides said: “The strong do what they can and the weak suffer what they must.” India wants to eat up its other neighbours like it devoured disputed Kashmir, Junagadh, and Hyderabad. The Indian attitude reflected the Kautilyan template: bheda (sowing seeds of discord) to achieve yana (victory) through danda (force).

Aggression towards neighbours by India

Kautilya believed that all neighbouring countries were actual or potential enemies’. After Kashmir, India annexed Nepalese territory in the maps. In blatant violation of mutual treaties, India annexed Kalapani area on the India-Nepal border.

Nepal’s legislature enacted a clarification to affirm its sovereignty over Kalapani. However, India has already brazenly occupied over 14,000 hectares (140 km2) Nepalese territory of Susta in Tribenisusta, Lumbini Zone, near Nichlaul, UP.

Snubbed at Doklam which lies outside Sino-Indian border, China tried to prevent India’s aggressive infrastructural work at Galwan (Ladakh).

Read more: OIC wants halt to Kashmir abuse by India

A corollary to Sino-Indian tiff is that China will be justified in conquering the whole of Ladakh, or for that matter the whole of disputed Kashmir, now Indian booty.China could declae the conquered territories into an autonomous region. After all, Kautliya says, matsy nyaya, or machh nyaya `way of the fish’, big fish eat the small one.

Bhasin documents Nehru’s perfidy on Kashmir in Chapter 5 titled Kashmir, India’s Constitution and Nehru’s Vacillation (pages 51-64). His successors were no less perfidious.

The accession is a myth. It never happened, as corroborated by British Records. S. Wolpert and P. French too proved that. Archives show Patiala Sikh Infantry had secretly landed in Srinagar by October 17, 1947 (aggression), five days before the Pathan tribal invasion from North West Frontier Province, now re-named Khyber Pakhtunawa Province(Anil Athale of Gorkha Regiment in Sunday Observer, Mumbai, October 26, 1997, p.2).

India kept promising to hold a plebiscite. It never claimed that the state had acceded to India. India utilised ‘lost or stolen’ subterfuge to parry questions at national and international forums about the mythical instrument of accession’.

Mr. Amjed Jaaved is editor of the monthly magazine, The Consul. His contributions stand published in the leading dailies and magazines at home and abroad (Nepal. Bangladesh, et. al.). He is author of eight e-books including Terrorism, Jihad, Nukes and other Issues in Focus. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.