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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 States 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 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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