Fight For Jammu & Kashmir: Legalities

Continuing from Fight For Jammu & Kashmir: Indian side of state

The ruler of Jammu and Kashmir, Maharaja Hari Singh, signed the accession papers and sent them to the Government of India on October 26, 1947; “Now, therefore,’ I, Shriman Rajrajeshwar Maharajadhiraj Shri Hari Singh Ji, Jammu Kashmir Naresh Tatha Tibbet adi Deshadhipathi Ruler of Jammu and Kashmir state, in the exercise of my sovereignty in and over my said state do hereby execute this my instrument of Accession”. This way the Maharaja submitted his accession papers which were accepted by the then Governor General, Mountbatten, on October 27, 1947.

Maharaja Hari Singh

Maharaja Hari Singh

After this accession, even India had no right to talk with short-sightedness. Such a purposeless talk had not only insulted the accession proposal of Maharaja Hari Singh but also violated the Independence Act. Under this Act the rulers of the State had been given the right for accession. Nothing had been said about the right of self-determination for the people of the State. In fact Mountbatten was desirous of keeping the fate of Kashmir hanging and he performed this act through Pt. Nehru and R.C. Kak. The Constitution of India was adopted on January 26, 1950 and there was no provision kept for self-determination in the Constitution. Therefore, the Government of India too had no right to talk about this plan. When the Constitution of India has not given the right to Government of India to review the questions of self-determination and accession, it is unconstitutional and illegal for any international organisation to talk anything in the context of India.

The entire dispute should have ended with the ratification of the accession by the Constituent Assembly on November 17, 1956. Both Pakistan and the Security Council have lost any right to talk anything about Kashmir or do anything about it.The people to whom was connected the question of self-determination were the same people who had elected the Constituent Assembly which had accepted the accession. This Assembly adopted the Constitution of the State. The clause three of this Constitution makes it clear “Jammu and Kashmir is and will remain inseparable part of India.”

The clause four of the Constitution is: The entire area, which was under the control of the ruler of the State till August 15, 1947, will remain withir. the territory of the State.

On August 15, 1947 the Pakistan held Kashmir was also under the control of the ruler of the State. Therefore, it is evident that the entire Jammu and Kashmir State is an inseparable part of India. The Maharaja had acceeded this undivided state to India. As such occupation of even an inch of the territory of Kashmir by Pakistan will be treated as aggression on India. This clause of the Constitution is further strengthened and shielded by clause 147. According to this clause, clause four cannot be nullified. And the Security Council too loses its right to give guidance and direction to India on matters connected with Kashmir. The Security Council can only advise Pakistan to vacate the Indian territory. And if Pakistan does not accept the suggestion ofthe Security Council, it can adopt a resolution against it and ask other countries to snap ties with Pakistan. But the Security Council has become a wrestling arena for political groups and as such it will not be wisdom to have any expectations from this powerless and lifeless international body.

Hide and seek of the Security Council

When India wrote to the Security Council about Pakistani aggression, it could do nothing except behaving like a spectator. It kept on adopting one resolution after the other but it could not prevail upon Pakistan to vacate the Indian state after declaring it an aggressor. Had not India unilaterally ordered cease-fire, it would have not only regained its two-third area of Kashmir but the Indian troops could have entered into the Pakistani territory ? At that time the Indian Prime Minister was neither any strong-willed Sarvarkar, nor any Subash or Dr. Hedgewar. Had Sardar Patel been appointed as the Prime Minister he would have finished the artificial line of partition by directing the Indian Army to march forward. The British had left India and the entire Army was under our control and this way the Congress would have washed away the blot of partition on its forehead. But the Oxford graduate, Nehru, lacked diplomacy and political wisdom.

The settlement of Kashmir became an object for the Security Council for playing hide and seek. On July 4, 1948 the Security Council sent a commission to have an on the spot assessment of the situation. On reaching Karachi, the Commission was told by one Pakistani officer, Sir Zaffarullah Khan, that three brigades of Pakistani Army had been deployed on the Kashmir border. But he called it part of self-defence plan thereby trying to prove that India was an aggressor.

After two years, in September 15,1950, a similar Commission, headed by an expert on international law, Owen Dixon, came to the following conclusion as a representative of the United Nations.

“When the rebel elements entered into the borders of Jammu and Kashmir, it was violation of the international law. When in May 1947 Pakistani Army entered into this state, it too was a violation of the international law”.

This Dixon had charged Pakistan with the open violation of the international law. In reality the Security Council too has accepted Kashmir’s accession to India. One American representative of the Security Council had given a statement on February 4, 1948.He had said: “The external ruler of Kashmir is not now under the control of the Maharaja. With the accession of Jammu and Kashmir with India this right has been vested in the hands of India and on the basis of that right India has placed this question here”.

The Security Council deployed UN observers on both sides of the cease-fire line. After that it adopted a resolution calling upon Pakistan to withdraw its troops, citizens and tribals from Kashmir. This way the United Nations accepted the defence aspect of India. But Pakistan, till date, has been violating this direction and resolution. Even after this, Pakistan has turned down the parleys between India and Pakistan. In August 1953 talks between the Prime Ministers of India and Pakistan took place where it was agreed to withdraw their troops from Kashmir. But again Pakistan adopted obstinate attitude.

The United Nations has always failed to control such attitude of Pakistan. Pakistan declared open war on India twice and the United Nations succeeded in halting the war but it remained incapable of resolving this dispute. The Security Council did not concentrate on the basic complaint of India which it had submitted to the Council in January, 1948.

 

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