05021948 Text of the Speech made by Mr. Gopalaswami Ayyangar {India) in the Security Council Meeting No. 242 held on 5 February 1948

05021948 Text of the Speech made by Mr. Gopalaswami Ayyangar {India) in the Security Council Meeting No. 242 held on 5 February 1948

I am very grateful to the President and to the Security Council for their indulgence in extending to my delegation an opportunity of intervening in the debate at this stage. It is a matter of embarrassment to me that I should have been obliged to ask for such an opportunity. I wish that it had been my lot to be able to follow the example of the representative of Pakistan, and to claim that such interventions as I am obliged to make are necessitated by happenings in the Security Council which were not anticipated, and that, left to myself, I should have been a good boy ia accepting all the suggestions that have fallen from the lips of representatives during the discussions which have taken place here.

Unfortunately, the interests of my country have demanded that I should ask permission to make these interventions, because I considered it my duty to guide the debate in the right direction from my standpoint if I possibly could. I am glad to be able to say that my intervention at the 237th meeting, follow­ed as it was by my speech at the 239th meeting, has produced a change in the attitude of the Security Council as a whole toward the solution of the problems with which we are confronted.

Yesterday we had some very helpful suggestions from different members of the Security Council, and, in this connexion, I wish particularly to refer to the remarks of the represen­tative of China, and to the observations that were made and the memorandum that was submitted by the representative of Colombia at the 241st meeting.

Before I deal with these, I should like to refer only to one or two matters which arose from the speech which the repre­sentative of Pakistan made at the 239th meeting. A good many of his points have been answered by my colleague who spoke yesterday. There are a few other points—not many—to which I should like to refer.

There has been one particular matter to which the represen­tative of Pakistan has made frequent reference, and that is the number of raids that have been made upon Pakistani territory from beyond the Kashmir border. He first referred to 130 such raids, a number which he said later on had risen to about 150.

I have been at some pains to ascertain the correctness of this allegation, and I shall read to the Security Council an extract from a telegram which I recently received from my Government in India, The telegram says:

"Reference list containing 130 allegations against Indian Union for infringing Pakistan border by incidents caused by Indian Union troops. Of this number only two are alleged against Indian troops and all other charges are made against State force troops. These are being investigated, and of those investigated so far, all are false. Of all these charges only twelve were officially reported to us previously by the Pakistan Army. These also were proved to be groundless."

I am sorry that I have not been able to get more definite information about the details of individual raids, but the allegation has been investigated partly and an investigation is being made with regard to the rest.

Passing on to some of the remarks of the representative of Pakistan about statements made by the Prime Minister of India at various times, it seems to me necessary that I should go into any detail. This matter has been discussed between us on. several occasions. I have referred to a good many statements made on the other side, and the representative of Pakistan has referred to statements made on our side. At one stage the representative of Pakistan began to speak about our complaint that there had been a breach of international obligations, but he immediately launched himself into a detailed account of the manner in which the State of Kashmir was acquired by the present dynasty. I really do not think that this particular matter is of any special relevance in connexion with the issues now before the Security Council.

I would pass this account by for the reason that, even if the great-grandfather or the grandfather of the present ruler was a man steeped in iniquity, it does not follow that the powers or the authority exercised by the present ruler cannot be recognized in international or even in Indian society.

I would pass on to the remarks of the representative of Pakistan*as regards the question of accession. These remarks appear in his speech to the Security Council during the 240th meeting. The representative of Pakistan said:

"India's reply and India's stand throughout has been: 'We accepted Kashmir's accession provisionally—for the moment —in order to deal with the emergency that had arisen; and once the emergency was out of the way, the question of accession would be decided by the people through a plebiscite.' "

That is not quite an accurate description of India's attitude.

That attitude would be more correctly described in the following words: "We accepted Kashmir's offer of accession at a time when she was in peril, in order to be able effectively to save her from extinction. We will not, in the circumstances, hold her to this accession as an unalterable decision on her part. When the emergency has passed and normal conditions are restored, she will be free, by means of a plebiscite, either to ratify her accession to India or to change her mind and accede to Pakistan or remain independent We shall not stand in the way if she elects to change her mind." That, I think, is the proper description of India's attitude.

If I may explain the position a little more in detail, the law bearing on the facts is as follows. Under section II of the India Act, any Indian State is at liberty to accede to either Dominion or to remain independent. If a State did accede to a Dominion, it could not withdraw from that accession except with the permission of that Dominion. What India had said was: "Kashmir offered her accession at a time of peril to her, and we shall not hold her to this offer. We shall accept it now, but we shall leave it to her and her people to change their minds and ask to withdraw from the accession to India and to accede to Pakistan or remain independent. If Kashmir does change her mind, then we commit ourselves to the position that we shall give our consent to her withdrawal from accession to India." That, in effect, is the position involved. There can really be no provisional accession, though that expression has been loosely used in the course of speeches, broadcasts and newspaper comments in regard to Kashmir's accession.

The instrument of accession is a document complete in itself. To the best of my memory, the instrument, in the case of Kashmir, does not confirm any conditions. It does not state that the accession is provisional. The commitment which the Government of India made for themselves on the question of ascertaining the wishes of the people was contained in a letter accompanying the accepted instrument of accession. The Government of India is certainly bound by its commitment, but it would be wrong to call the accession itself a provisional accession.

With regard to this question of accession, we should remem­ber that it became complete and operative on 26 October 1947. The effect of the Government of India's commitment in regard to the plebiscite was that if, on the plebiscite being taken, the vote went against accession to India, India would release Kashmir from the accession. Upon such release, the accession, which up to that point must be considered to be valid and effective, would, as it were, cease.

I now pass to another point raised by the representative of Pakistan. At the 240th meeting of the Security Council the representative of Pakistan quoted a telegram from the Prime Minister of India to the Prime Minister of Pakistan in which the Prime Minister of India made three proposals, namely:

"1. That the Government of Pakistan should publicly, undertake to do their utmost to compel the raiders to withdraw from Kashmir;

"2. That the Government of India should repeat their declaration that they will withdraw their troops from Kashmir as soon as raiders have withdrawn and la»-and order are restored; and

"3. That the Governments of India and Pakistan should" make a joint request to the United Nations to undertake a plebiscite in Kashmir at the earliest possible date."

These were the proposals made by the Government of India for the Acceptance of the Government of Pakistan. They did not materialize. As Pakistan was not prepared to accept them-in the form in which they were made, they were not prepared: to implement the obligations which those proposals imposed upon them. It is not reasonable, at this stage, to take out only what India was prepared to commit herself to on that occasion-if Pakistan did her part of the arrangement, and to say that we are now departing from what we agreed to on that occasion. Pakistan, at that time, was unwilling to make even a public statement condemning the action of the raiders and asking them to withdraw.

The quotation made by the representative of Pakistan is taken from a telegram dated 8 November 1947. In the same telegram there are other passages of a revealing character. I wish to read to the Security Council some of the passages of the telegram from the Prime Minister of India to the Prime Minister of Pakistan.

Paragraph 5 of this telegram states:

"Lord Mountbatten, on his return from Lahore, gave me a full account of his talk with Mr. Jinnah, in particular of two important suggestions which had been discussed, namely: one, the withdrawal of Indian troops and tribes­men from Kashmir; and two, the holding of a plebiscite at the earliest possible date.

"As regards the first proposal, Lord Mountbatten told me that Mr. Jinnah desired that the withdrawal of the Indian Dominion troops and tribesmen should be simultaneous, but that he, Lord Mountbatten, had pointed out that it was clearly impossible for the Indian troops to withdraw from Kashmir Valley until the raiders had left Kashmir soil and law and order had been restored in Kashmir. Lord Mountbatten had also made it quite clear to Mr. Jinnah that the Government of India had no desire to retain troops in Kashmir for a moment longer than was necessary.

'"As regards the second point, Lord Mountbatten reports that Mr. Jinnah had expressed the view that there was no hope of a fair plebiscite under the present Kashmir authori­ties. To meet this point, Lord Mountbatten had suggested that it should be conducted under the auspices of the United Nations. Mr. Jinnah had put forward the counter-proposal that the two Governors General should be given plenary powers to settle the matter. Lord Mountbatten had pointed out that it would be constitutionally improper for him to undertake this duty."

Pandit Nehru went on to say to Mr. Liaquat Ali Khan: "As regards your proposals one and two, armed raiders have entered Kashmir to the accompaniment of massacre, arson and loot. Our troops have been sent there to drive out these raiders and protect Kashmir, So long as these raiders remain there and law and order have not been established, our troops must discharge their duty. Afterwards, they will be withdrawn, as I have already undertaken."

Then, in a later telegram dated 13 November, Pandit Nehru told Mr. Liaquat Ali Khan: "We cannot withdraw our troops from Kashmir or those taking precautionary measures until Kashmir is free from these raiders and there is no chance of further attack."

There is nothing in the proposals that we have placed before the Security Council which can be considered to be inconsistent with the attitude that our Prime Minister took from the very beginning. While saying this, I should also draw the attention of the members of the Security Council to the fact that a great many things happened between the beginning of November 1947 and the end of January 1948, and the fighting has continued. There has been no attempt on the part of Pakistan to cooperate with India in trying to stop the fighting. On the other hand, the fighting has become more and more intensified, and the conviction has been borne in upon both the Government and people of Kashmir, and upon the Government of India, that it would be a very risky undertaking, from the standpoint of defending the State against aggression and preserving law and order in the State, for the Indian troops to be withdrawn in any haste from the soil of Kashmir.

In the proposals that we have submitted, we have said that the strength of the Indian troops in the State would be reduced progressively after the stoppage of fighting, and that we would retain only such troops in the State as are required for protec­tion against external aggression and in the discharge of the Indian Government's obligation for defence of the State of Jammu and Kashmir.

A good deal has been said about the other part of the proposals that we have made, namely, that the function of the reduced strength of troops that we shall maintain in Kashmir would be not only defence against external attack, but that those troops would be available to support the civil power in the maintenance of law and order when an emergency required such aid. I only wish to point out that this is the normal function of any armed force in any State in the world. Primarily, the armed forces are required to defend the country against attack from outside. Internal law and order has to be maintained by the civil power primarily, with the aid of the police and such armed militia as it may raise for the purpose. But occasions do arise, and emergencies do occur in internal administrations, when these forces at the proposal of the civil power do not prove adequate. In those cases, the army has to go to the aid of the civil power. This is all that was meant by the portion of our proposals which referred to giving aid to the civil power.

In this connexion, inasmuch as reference has been made to proposals of the Prime Minister of India which did not materialize, I invite the attention of the members of the Security Council to certain other tentative, provisional under­takings arrived at between the representatives of the two Governments which we had hoped would materialize in a final agreement. I shall read from a document which is headed "Revised Draft Kashmir Agreement '', a draft which was circulated to the Ministers of the Government of India who were proceeding to Lahore in the beginning of December 1947. The draft was sent to these Ministers by the Governor General of India. It begins as follows: "The Prime Minister and the Deputy Prime Minister of India, and the Prime Minister and Finance Minister of Pakistan, have held a series of discussions in Delhi and Lahore with a view to eliminating all sources of friction between the two Dominions. These discussions have been conducted in a most friendly and cooperative atmosphere. So far as Kashmir is concerned, the following were the agreed conclusions which have been reached by the two Dominions in consultations with the Government of Pakistan."

I should like to point out that this draft was sent to us to serve as a basis of discussion at the conferences which were about to take place in Lahore, and in order to enable us to continue the negotiations which had been interrupted at Delhi. The proposals were these: "(a) The normal situation shall be restored as quickly as possible. The first step to that end is when required for the preservation of law and order, which was also a continuing necessity.

We were talking of the interim period; we said that these troops have to remain there during the period between the cessation of hostilities and the taking of the plebiscite for the two purposes which we have indicated in our scheme. If, when the plebiscite is taken, it results unfavourably for India, our troops, of course, will withdraw to a man. If the plebiscite results favourably for India, our troops will remain there, and they will perform the dual function which I have indicated in the scheme that has been placed before the Council.

I shall not refer to the other parts of the Pakistan represen­tative's remarks. We listened with profound respect to the speech which was made by the representative of the United States at the 240th meeting. We are grateful for the light that he threw on one of the subtler points of controversy in international law.

I say we are grateful to him because it is difficult to disagree with much of what he said. But there are one or two aspects of his remarks to which I beg leave to draw the attention of the Security Council. Before doing that, I would refer to his observation wherein the following language appears:

"How is it possible to induce the tribesmen to retire from Jammu and Kashmir without warfare and without driving them out? That is the only way it can be done, unless the tribesmen are satisfied that there is to be a fair plebiscite assured through an interim government that is in fact, and that has the appearance of being, non-partisan. Only by that*method could one hope to have that retirement on a peaceful basis."

I wish to place before the members of the Security Council a somewhat different point of view. What is the status of these tribesmen, in relation to the State of Jammu and Kashmir, which enables them to demand that a plebiscite, to be taken for the purpose of deciding the question of accession to India or Pakistan, shall be taken in such a manner as will be consi­dered satisfactory by them?

I, for one, am unable to see the strength behind the position of this character. These tribesmen are separated from the Stats of Jammu and Kashmir by intervening in Pakistan territory. They invade Kashmir for purposes which it is unnecessary to repeat. They come and fight; they loot; they commit arson; they do all sorts of things, and then they retire to their own country with all this loot.

Are people of this description, who invade Kashmir for criminal purposes, to be given the right to demand that some­thing shall be done by Kashmir State authorities which wii! be acceptable to them; and to say, if it is not acceptable to them, that they will not retire? Of course, they will not retire so long as they see the prospect of being able to go to this beautiful land for the commission of crime. But if they have to be sent away, and they will not retire of their own accord, the proper policy in relation to these tribesmen is one of driving them out from the State of Jammu and Kashmir. That is one point of view which I would ask the Security Council seriously to consider.

I come next to the other interesting point in international law which was referred to by the representative of the United States. He states:

"What the Security Council is faced with is the fact that two Members of the United Nations have come before it with an international problem. That problem involves the external sovereignty of Jammu and Kashmir."

I agree that, except in discharge of its responsibility for external affairs, India could not have come to the Security Council. But the further point that it attempted to make, namely, that the problem relating to accession was also a matter involving external sovereignty, is a proposition which it is not so easy to accept.

In this connexion, I would like to give a brief account of the manner in which sovereignty is divided in Indian States. Though Indian States were legally sovereign prior to 15 August 1947, the political sovereignty over them was exercised by the para­mount power, namely, the British power. Many thinking states­men in India expected that when the British parted with all

their power in India, they would permit the paramount power exercised by them over Indian States also to depend on the authorities to whom power was transferred in India. For reasons best known to His Majesty's Government, this did not happen. It did not happen because, as I consider, their policy was guided by a very erroneous conception of sovereignty and paramountcy in Indian States.

The result was that they laid down the doctrine that when they parted with power in India, every Indian State—every one of the 562 States—became independent, so that after 15 August 1947 the Indian States were no longer protectorates under the paramountcy of a suzerain. They became entirely independent of any other authority. If they did not accede, they continued to be independent; if they acceded to either of the two Dominions, they became member States of a federation in which certain named subjects were added by the States to the federal Government. The sovereign powers with regard to those subjects were exercisable by the federal Government, the sovereign powers in regard to everything else continued to remain with the Indian States.

I have already quoted to the Security Council statements made by all leaders of opinion in India, including Mr. Jinnah, to the effect that the question of the accession or of the future government of any Indian State is a matter entirely for the people of the State concerned.

This will be so even after accession has taken place, because accession gives the federal centre control only over the subjects of external affairs, defence and communications. Control of all the rest, barring some minor ancillary matters, remains with the Indian States. That being so, the decision on the question of accession and the taking of a plebiscite are matters which come within the ambit, not of external sove­reignty, but of internal sovereignty. That is where I have found it somewhat difficult to follow the point made by the represen­tative of the United States.

The fact that the Government of India agreed to a plebis­cite being taken for the purpose of deciding the question of accession does not make the matter one which comes within the ambit of external sovereignty. In this connexion, let me quote the actual words used by Lord Mountbatten in his letter which was referred to by the representative of the United States. They read as follows:

"...It is my Government's wish that as soon as law and order have been restored in Kashmir and its soil cleared of the invader, the question of the State's accession shall be settled by reference to the people."

That was the wish of the Government of India. What was indicated was that the Maharaja and his Government, in whose jurisdiction this matter lay, should implement that wish.

Of course, the other point is perfectly maintainable; namely, that if the person in whom sovereignty rests chose to delegate a portion of it to somebody else for a temporary period, that delegation would be perfectly valid. I concede that position, and the authorities quoted by the representative of the United States are quite apposite in that connexion. However, the point that I have tried to make is not about the legal competency of the Maharaja, his Government and people to invite an outside administration to come and run the State for a definite period; it is rather about their willingness to do so, and the propriety of a body like the Security Council asking them to do so. Sheikh Abdullah, who spoke yesterday, also had something important to say on that point which should have indicated the wishes of the people and of the Government of Kashmir.

If accession itself cannot be considered to fall within the sphere of external sovereignty, then the question of the proper internal constitution of the State can much less be said to fall within that sphere.

It is for those reasons that we have maintained that both the question of the future government of Kashmir and the question of its accession to either Dominion are matters requiring deci­sion by the people of the State.

Having said that much, I now come to some of the state­ments which were made yesterday. In this connexion, I must acknowledge the helpful attitude which was taken by some of the speakers. The representative of China made suggestions which, I respectfully suggest, deserve serious consideration at the hands of the Security Council. The representative of France made one suggestion which, I think, tried to steer a middle course between establishing an outside administration during the interim period and continuing the present administration. His suggestion was that perhaps the most satisfactory course would be to include representatives of both the National Confe­rence and the Muslim Conference in that interim government.

In that connexion, I would draw the attention of the Secu­rity Council to our own scheme set forth at the 236th meeting. Our scheme provides that before the plebiscite is taken, a national government, based upon a national legislature elected on the basis of adult suffrage, should be established. The national government formed under those circumstances must be a government which is acceptable to the people as a whole. If, in the formation of such a national government, and for the purpose of taking an impartial plebiscite, the legislature should consider that an all-party government should be established, it will be for those who will be in the legislature at that time, and for those who might be called upon to form a government at that time, to decide what should be done in the best interests of the State; and it is quite possible that, in such circumstances, the coalition idea would be worth convincing. Sheikh Abdullah indicated yesterday that it should be his endeavor to draw all the people together in forming a strong government and conducting the administration in an impartial and efficient manner. However, what I particularly wish to stress is that the scheme which we have placed before the Security Council contemplates alternative methods of forming a govern­ment before the plebiscite is taken which should be satisfactory from all points of view.

I come now to the document submitted by the representative of Colombia at the 24lst meeting. Until that document was presented I thought that ours was the only comprehensive scheme which would cover practically all points of controversy which the representative of the United Kingdom was so anxious that the Security Council should decide upon before we disperse.

In fact, however, the Colombian scheme is also a compre­hensive one, and tries to tackle all the points of controversy. While my delegation cannot agree with every one of the pro­posals contained therein, there are many with which. we are-happy to find ourselves in accord.

I should like to indicate what are our initial fractions to this comprehensive scheme. I shall deal first with the points mentioned under the word "finds". I do not wish to examine meticulously the wording of the preamble; that can come at the appropriate time if we do in fact decide to adopt a proposal of this kind.

After the word "finds", paragraph A speaks of the cessation of fighting and other acts of hostility as being of a particularly urgent character in the Jammu and Kashmir State. We are entirely in agreement with this, and I hope that the Security Council as a whole is in agreement with it.

Paragraph B speaks of the question of accession being referred to the people. Barring verbal amendments which, if necessary, I shall propose at the proper time, it seems to me that the substance of this paragraph is worthy of serious examination. It speaks of a plebiscite to be held under inter­national auspices.

Paragraph C seems to go rather beyond the jurisdiction of the Security Council. It refers to the plebiscite as being a method of determining the future government of the Jammu and Kashmir State, but I do not think any suggestion has been made that the future government of the State should be deter­mined by means of a plebiscite. Our own proposal is that a national assembly, elected on the basis of adult suffrage, should frame the constitution of the State.

Paragraph D refers to the interim administration, and in this connexion I should like to remove one possible cause of misunderstanding. In our scheme we contemplate an interim administration that would function in the period between now and the convocation of a national assembly. It is that interim government which we say should be a council of ministers headed by Sheikh Abdullah and comprising other ministers appointed by the Maharaja on Sheikh Abdullah's recommenda­tion. But the government which would be in office at the time of the plebiscite would be a national government based upon a national legislature. We should, therefore, be willing to consider paragraph D if it were so modified as to indicate that the early establishment of a government reflecting the will of the people of the Jammu and Kashmir State is essential to the attainment of the aims and purposes of this scheme.

As for paragraph E, we would rather that it were omitted since it gives too wide a jurisdiction to the Commission to watch happenings of all kinds in the Jammu and Kashmir State and to make reports to the Security Council.

On the question of the strength of the Commission which was decided upon on 20 January [document SJ654], I should like to reserve my opinion. If the Security Council is prepared to take up that matter, it can be discussed at greater length later on.

The delegation of India accepts, of course, paragraph 2 of the proposed resolution which reads: "The Security Council recommends to the Government of Pakistan to use all its efforts to persuade the tribesmen and all trespassers who have invaded the territory of Jammu and Kashmir State to withdraw there­ from", but we would amplify it in the direction we have indicated in our scheme.

Paragraph 3 of the memorandum speaks of the reorganiza­tion of the Emergency Administration on the advice of the Commission. We are unable to agree that the Commission should have any jurisdiction with regard to this matter. The further rider that adequate proportional representation should be given to the Muslim and non-Muslim groups of the popu­lation in the interim government is altogether unnecessary from our point of view. In Jammu and Kashmir we are trying to eliminate this communal division altogether, and while, with a view to achieving smoothness and giving satisfaction to the uneducated masses, the head of the administration who is called upon to form a government will give weight to the proportion of Muslims and non-Muslims in the State, the essential principle which I know will guide him will be adequate representation to different areas and interests without reference, necessarily, to communal divisions.

Paragraph 4 practically repeats portions of our scheme.

Paragraph 5 says: "The plebiscite...shall be organized under the advice of, and supervised

by, the Commission of the Security Council."

Our own scheme was that the plebiscite should be organized and held under the advice and observation of persons appointed by the Security Council. We can have no objection to the Commission of the Security Council giving this advice and making this observation. We would not even object to the word "supervised", provided it did not carry the connotation with it that the Commission could exercise any functions of an execu­tive character.