India's False Claim on Kashmir

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On October 28th 1993, Robin Raphel stated that Washington did not recognise the Instrument of Accession to India as meaning that Kashmir is not forever more an integral part of India. She expressed the view that the whole of Kashmir is disputed territory, the future status of which must be determined in accordance with the wishes of the people of Kashmir.

The International Commission of Jurists (ICJ), based in Geneva, recently, passed a resolution proclaiming Kashmir's accession to India as bogus and null and void. The ICJ went further by condemning the human rights violations in Kashmir.

A Postcard from KashmirThese events serve to highlight the disputed status of Kashmir by focusing on the fraudulent nature of the Instrument of Accession which was 'signed' by the Mahrajah of Kashmir on 26th October 1947.

The Indians claim that the Instrument of Accession was signed by Mahrajah Hari Singh on 26th October 1947, in which the Mahrajah agreed to accede to India in return for military assistance to put down the popular rebellion against him, seen at that time as an invasion by tribesmen from neighbouring Pakistan. The details of the accession were worked out between the Kashmiri Prime Minister, MC Mahajan and the Indian official, VP Menon, in Dehli. However, there are serious doubts about the signing of the document. Alastair Lamb (in his book, Kashmir - A disputed legacy 1846-1990) points out that the Instrument of Accession could not have been signed by the Mahrajah on 26th October as he was travelling by road to Jammu (a distance of over 350 Km). There is no evidence to suggest that a meeting or communication of any kind took place on 26th October 1947. In fact it was on 27th October 1947 that the Mahrajah was informed by his MC Mahajan and VP Menon (who had flown into Srinagar), the the Instrument of Accession had already been negotiated in Dehli. The Mahrajah did not in fact sign the Instrument of Accession, if at all, until 27th October 1947. This sheds doubts on the actions of the Indian regime. Some Indian troops had already arrived and secured Srinagar airfield during the middle of October 1947. On 26th October 1947, a further massive airlift brought thousands of Indian troops to Kashmir - BEFORE the signing of the Accession. Therefore, this situation begs the question: would the Mahrajah have signed the Instrument of Accession had the Indian troops not been on Kashmiri soil?

No satisfactory original of the Instrument of Accession has ever been produced in an international forum; a published form has always been shown. Further, the document was not presented to Pakistan or to the UN. In the summer of 1995, the Indian authorities reported the original document as lost or stolen. This sheds further doubt on whether the Mahrajah actually signed the Instrument of Accession.

The Governor-General of India at the time, Lord Mountbatten, stipulated that the permanent accession of Kashmir to the Indian Union will only be accepted once the people of Kashmir had been consulted. He noted in a letter to the Mahrajah, "the question of the states's accession should be settled by a reference to the people". Furthermore, when the Kashmir crisis broke out in October 1947, the principle of reference to the people through plebiscite was already established as similar disputes in some other states had been resolved this way. The Indian Prime Minister J Nehru, accepted this principle and reiterated his position in a letter to the British Prime Minister on 25th October 1947, "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". Therefore, at the time of the so-called accession, the Indian regime accepted the principle of reference to the people. Based on this principle, the Instrument of Accession should have been provisional and conditional upon the outcome of a plebiscite.

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. 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 status of Kashmir would be determined by its people. Therefore, the Instrument of Accession, even if genuine, is rendered null and void.

In the past, attempts to hold a plebiscite have been met with fierce opposition from India. India has known, right from the start, that the result of a plebiscite is a foregone conclusion - the population of Kashmir would have voted to rid themselves of Indian rule. This has been the case from 26th October 1947 to the present day. On the practicality of holding a plebiscite, a paper by the US state department, presented to the UN on 2nd December 1947, noted , "the dominion of India may attempt to establish the extant electoral rolls on the basis for the referendum. As these rolls are said to contain less than 7% of the population and were compiled on a basis which served the weight to the members of the wealthiest educated Hindu majority who would obviously vote for accession to India, it is important that the electoral body should in fact be composed on a basis of complete adult suffrage in order that the result of the referendum may be representative of the actual wishes of the people of Kashmir".

In view of the above arguments, it is clear that the Indian case on Kashmir is politically, legally and morally unjustified. The commitment made by India and the UN to allow the people of the state to choose their own future are neither time bound nor do they provide an escape clause for the Indian regime. It is only through fraud and repression that India continues to forcefully occupy a large portion of Kashmir.

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This site is maintained by Gharib Hanif (hanif@gharib.demon.co.uk). Comments and suggestions always welcome.