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Solution to Kashmir problem lies in law, Gilgit was unlawfully acquired

Updated: Aug 20, 2016 15:18 IST      
Solution to Kashmir problem lies in law, Gilgit was unlawfully acquired
By I. Ramamohan Rao

New Delhi, Aug. 20 (ANI) Aman Hingorani, a lawyer and mediator of the Supreme Court of India has made a comprehensive study of the Kashmir issue, and pointed out that the state, including the areas presently under the possession of Pakistan, legally belong to India.

He has convincingly argued in the book that when India became independent from British rule in 1947, the laws governing the transfer were the Government of India Act of 1935 and the Indian Independence Act of 1947. Under these Acts, the 360-odd Princely States became independent and the rulers became sovereign. They became the sole repositories of power to offer accession to either of the dominions of India or Pakistan'

Therefore , the accession to India by the Maharaja of Kashmir to the dominion of India in 1947 was legally valid, final , complete and irrevocable, and all the areas under his rule became a part of India. This would include, the present areas of Jammu and Kashmir, the Pakistan occupied Kashmir and Gilgit.

To recall the events, following Partition, Sardar Patel, and Secretary V. P. Menon, exercised authority to persuade the Princely States within India's boundaries to accede to India and allow those Princely States inside the boundary of West and East Pakistan to accede to Pakistan.

There was some trouble in case of Hyderabad, but this was sorted out by India by sending in the military .As far as the Maharaja of Jammu and Kashmir was concerned, initially he wanted to be independent. First, he concluded a standstill agreement with India and Pakistan. When Jinnah came to know that the Maharaja was likely to join India, he organised a tribal invasion later backed by the Pakistani Army.

The Maharaja tried to resist, but on finding it difficult, decided to join India and invited the Indian forces to fight the invaders. The Maharaja had appointed Brigadier Ghansar Singh as Governor of Gilgit, and the areas was looked after by Gilgit Scouts headed by Major William Alexander Brown. Major Brown revolted and on October 31, 1947 and decided to accede to Pakistan.

Aman Hingorani recalls in the book that on the eve of independence, the areas under the princely Indian State of Jammu and Kashmir had engaged the attention of British strategists, because of its geographical location; it had boundaries with Tibet in the North East, the Soviet Republic of Turkmenistan and Afghanistan to the North and North West.

Lord Mountbatten, presumably directed by British strategic interests, tried to persuade the Maharaja of Jammu and Kashmir to accede to Pakistan. The British strategists felt that they could use Pakistan to further their "great game" in the region as against the Soviet Union, and the accession of Kashmir to Pakistan would help consolidate their interests. Mountbatten visited Srinagar twice and told Maharaja Hari Singh that if he acceded to Pakistan, India would not object.

The Maharaja did not submit to his pressure, and concluded a standstill agreement with India and Pakistan. When Jinnah came to know that the Maharaja was likely to join India, he organised a tribal invasion. The Maharaja then decided to accede to India on October 26.

On October 27, India accepted accession and flew troops to Srinagar. Lord Mountbatten, while accepting the instrument of accession and the appointment of Sheikh Abdullah as the Prime Minister of the state wrote a letter that "the issue of accession should be decided in accordance with the wishes of the people of the state (and) it is my government's wish that as soon as law and order have been restored and her soil cleared of the invader, the question of the state's accession should be settled by a reference to the people."

Lord Mountbatten was able to persuade Prime Minister Jawaharlal Nehru to agree to the provision of ascertaining the will of the people.

Aman Hingorani has pointed out that the Government of India was not competent to introduce the 'wishes of the people' as a factor to determine the accession of a princely Indian state to either of the dominions, let alone commit before the UN Security Council, to a plebiscite or referendum in the princely Indian State of Jammu and Kashmir under international auspices.

Lord Mountbatten also persuaded Prime Minister Jawaharlal Nehru to complain to the United Nations, after sending Indian troops to defend the state, after it acceded to India. India , which was on the verge of victory in its fight with Pakistan also agreed to a cease fire. It also agreed to hold a plebiscite once the Pakistani troops vacated Jammu and Kashmir.

The author has pointed out that the present "sad state of affairs" could have been averted if New Delhi had simply realized that it was not competent to introduce the 'wishes of the people' as a "factor to determine the accession of the Princely Indian State of Jammu and Kashmir to the dominion of India, let alone promise a right of self- determination to the people of the state". To add to the problems, New Delhi had gone a step further to involve the United Nations Security Council complaining that Pakistan had organised a tribal invasion, backed by its forces. The result was it had to agree to hold a plebiscite in the state under international auspices, following the withdrawal of Pakistani forces from Jammu and Kashmir.

The author has pointed out that under the Independence Act of 1947, and the Government of India Act of 1935, when the Partition of India had taken place, the sovereign rulers were the sole repositories of power to offer accession to either of the dominions of India or Pakistan. Hence Maharaja Hari Singh's Instrument of Accession was final and Governor General Mountbatten had no authority to make the accession conditional on 'ascertaining the will of the people when peace was restored'.

Aman Hingorani has pointed out that Gilgit ,which was controlled by the Gilgit Scouts under the command of Major Brown had no authority to join Pakistan.

He points out that the instrument of accession had also made Pakistan Occupied Kashmir a part of India. The Constitution of Jammu and Kashmir has the provision to keeping vacant in the Kashmir Assembly some seats to represent the areas of the state occupied by Pakistan.

Hingorani has suggested that the while formulating a solution to the Kashmir issue, it must be noted that n terms of the Indian Independence Act of 1947 read with the Government of India Act of 1935 , as amended, the 'wishes of the people were completely irrelevant to the question of accession, and therefore, it was not for the people to decide the future of the state. It must be recognised that the people of the princely Indian State of Jammu and Kashmir, like the people of other princely Indian states were not given a 'birth right 'to self determination by these Acts , nor did the Instrument of Accession promise or confer any such right.

The author's view is that the international community must be made aware that the suggestion of taking into consideration of the will of the Kashmiri people to resolve the Kashmir issue is legally unfounded.

Lord Mountbatten's letter and his ability to persuade Jawaharlal Nehru to ascertain the will of the people once troops are withdrawn and peace restored" has permitted Islamabad to project what is a form of 'terrorist' or secessionist movement for New Delhi to be a 'jihad or freedom struggle, with national, geostrategic and political interests of several other countries compelling them to endorse Pakistani view in varying degrees.

The epilogue in the book points out that India should approach the International Court of Justice, and make it confirm that that on the lapse of British paramountsy the princely Indian states were the sole repositories of power to offer accession to either of the dominions of India or Pakistan under the Indian Independence act of 1947 , and the Government of India Act of 1935 and that the wishes of the people of a princely state were alien to the question of accession . The accession by the sovereign ruler was legally valid , final , complete and irrevocable.

The book, which is a timely publication, suggests that the solution to the Kashmir problem should, in the first instance be located in law, and that is, perhaps the only option available to comprehensively resolve the issue, more so in light of the ground realities in the state and the inadequacies of other solutions.

The epilogue also suggests that the proposed way forward of referring the issue to the International Court of Justice to unravel the Kashmir knot is certainly worth a try and, if successful, could bring lasting peace to the Indian subcontinent and perhaps closure to the trauma of its partition.

Book Review ; Unravelling the Kashmir Knot by Aman Hingorani,Sage Publications; pages 386. Price Rs 995.

Mr. I Ramamohan Rao is a former Principal Information Officer of the Government of India. He can be reached on e-mail at raoramamohan@hotmail.com (ANI)

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