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Origin of the Kashmir problem

Kashmir’s accession to India was lawful and in terms of the Indian Independence Act, writes Nirmalendu Bikash Rakshit.

Nirmalendu Bikash Rakshit |


Kashmir has been a bone of contention between India and Pakistan since our independence on 15 August 1947. As a stark reality, some vital issues largely generated bad blood between these two neighbouring states – but the Kashmir issue lies on top.

Kashmir is situated strategically in an area where Russia, undivided India, China and Afghanistan met in a common frontier. Because of its geographical position, Kashmir is connected with the security of both India and Pakistan.

Moreover, the bulk of its people are Muslims, and hence, Pakistan sought to keep it within its domain after the partition of India. Above all, its scenic beauty attracts visitors, both local and foreign, who largely enrich the state-exchequer. Pakistan is not willing to suffer such a financial loss by keeping it out.

But, as a cardinal truth, it cannot claim to annex it on the basis of history or law or logic. It forcibly occupied a portion of Kashmir in 1947 and, thus, it was a ghastly act of naked aggression.

As a matter of fact, there were 562 princely states in India during British rule. Each of them was almost independently ruled by a King or Nawab and the British Government hardly interfered with the internal affairs of these states.

But, when the British agreed to depart, a question arose: what would be the status of these states after partition and the lapse of ‘British Paramountcy’. The Indian Independence Act of 1947 clearly and expressly stated that the Kings and Nawabs could join either Dominion by signing on the Instrument of Accession or, if they wished, they could remain independent as before.

After long negotiation with Sardar Patel, the Home Minister of India, and Lord Mountbatten, the Viceroy, most of these states joined India and some of them merged with Pakistan.

Hari Singh, the Hindu King of Jammu and Kashmir initially intended to remain free. So, Jawaharlal Nehru, our Prime Minister, intended to go to Kashmir in order to persuade the King to join India. But they did not see eye to eye and, hence, the Viceroy himself took this responsibility upon himself.

He was cordially received in Kashmir and it was decided that the crucial talks would be held on the last day of his visit. But before the scheduled meeting, the King informed that he was too ill to attend it. As Leonard Mosley puts it, ‘this is his usual illness when he wishes to avoid difficult discussion’.

Consequently, the Viceroy came back with broken hopes and the King happily felt that his wise manoeuvre would enable him to maintain equidistance from both new-born Dominions.

But history tells us another story of paramount importance. On 22 October 1947, some tribesmen, together with the Pakistan Army, suddenly invaded Kashmir and they rapidly reached near Srinagar, the capital. Sensing danger, the King immediately sent MC Mahajan, his Prime Minister, to India for military help. But unless the King signed on the Instrument of Accession, it was not possible for India to intervene in the matter.

So, Mr Mahajan promptly air-dashed to Kashmir and soon he came back with the Instrument duly signed by the King in favour of India. In this way, Kashmir became an integral part of India. The Indian army immediately proceeded to Kashmir and it liberated a large part of the occupied territory. It informed that it would take only few days’ time to fulfill its mission.

But, at this juncture, Nehru made a fatal blunder. He stopped the war and referred the matter to the United Nations for a peaceful settlement. Naturally, some allies of Pakistan came forward to support Pakistan’s stand in that international forum and, thus, a purely internal affair of India became a matter of international complexity.

Nehru committed the second mistake by his promise to hold a plebiscite in Kashmir. Pakistan readily jumped at the proposal with the fond hope that the Muslim-dominated state would like to join it. But the merger of Kashmir with India was a fact of history and an act of law.

Moreover, the people of Kashmir elected in September 1951, their Constituent Assembly which confirmed the accession of Kashmir to India in 1954. Above all, the question of plebiscite can, by no means, arise in this case, because, the Indian Independence Act empowered the ruler alone to decide with which Dominion he would like to join.

As DD Basu, the eminent constitutional authority writes, ‘the Instrument signed by the King on the 26th October, 1947, was in the same form as was executed by the rulers of the numerous other states which had acceded to India following the enactment of the Indian Independence Act’.

In short, the question of a plebiscite was nowhere stipulated in the aforesaid Act and the King or Nawab of each state alone was entitled to decide the fate of the relevant state.

But, Pakistan cares little for logic on law. It waged war against India on this issue on two occasions – but on each occasion, it lost ground. Thereafter, it changed its stance and embarked upon a policy of subversion, terrorism, infiltration and conspiracy. Moreover, it moved from pillar to post in a frantic search for supporters. But its attempts to discredit India in the UN were foiled by the Soviet veto.

Being disheartened, it took up the issue at the UN Human Rights Commission in Geneva in 1994. But the Chairman upheld the Indian objection and directed Pakistan not to make any reference to Kashmir in it. Then, Pakistan sought the support of the Organisation of Islamic Countries (OIC). But this attempt too ended in a fiasco. In this way, these two states are at daggers drawn with each other on this issue.

Paksitan even raised the issue in Iran in 1995. Mrs Benazir Bhutto the former Pakistani Premier, sought Iranian support on the Kashmir issue, though with little dividend. Then, in the same year, the Pakistan President Farooq Leghari, raised the issue in the conference of Commonwealth of Nations – but its Chairman held that such a bilateral matter cannot be discussed in a neutral forum.

Thus, every attempt by Pakistan, either armed or diplomatic, on Kashmir has ended in smoke. Kashmir’s accession to India is eventually a historical fact and lawful affair. So its status cannot be altered by any armed action or diplomatic pressure.

The writer is a Griffith Scholar and Former Reader, New Alipore College, Kolkata.