23011957 Text of the speech made by Mr. Krishna Menon (India) in the Security Council meeting No. 763 held on 23 January 1957.

23011957 Text of the speech made by Mr. Krishna Menon (India) in the Security Council meeting No. 763 held on 23 January 1957.

 

Before I continue the observations I was making this morning, I should like to submit that the length of these observations does not arise from any particular desire on the part of my delegation to prolong these proceedings. It arises from the fact that this matter has not been before the Council for many years and, as I said this morning, there are very many new members and the basic positions have to be understood if the Indian case is to be presented adequately. Therefore, if the Security Council desires to hear all the aspects of this matter as far as they are relevant, it will be necessary for my delegation to take the necessary amount of time. But I do not want to prejudice the Security Council by creating any feeling that the length of these observations arises from any other reason.

 

The PRESIDENT: May I say to the representative of India, on my own behalf, that, while the Philippines is a new member of the Security Council, the representative of the Philippines has taken it upon himself to read the documents in connexion with the question at issue. The representative of India need therefore have no fear that the representative of the Philippines is not conversant with the documents in this matter.

 

Mr. Krishna MENON (India): Of all the documents that have been circulated, I have read out only such relevant extracts as are necessary, leaving it to delegations, as the President has suggested, to read the documentation for themselves. But that these papers are on file does not by itself ensure that the points in them will be brought out properly.

 

I was dealing this morning with the resolution of the Security Council adopted on 21 April 1948 [S/726], and I pointed out that we objected to several paragraphs of it. But we were quite willing to confer and, as a result of that, the United Nations Commission started functioning.

 

It is not really relevant to my purpose to go into the activities of the Commission. But it met at Geneva on 16 June 1948, and a study of the documents will reveal that at that time the Commission was concerned, and very much concerned, with one matter-and that was the matter of stopping the fighting. If the relevant paragraphs of the Commission's report were read, it would be quite clear that the concern of the Commission was somehow or other to bring about a cease fire.

 

I read the following from the Commission's report:

 

"At the 14th meeting, it was agreed that the question of an immediate cease-fire should be explored and that the Government of India should be asked for its observations regarding the ways and means by which such a cease-fire might be brought about". [S/1100, para. 45.J

 

The Commission goes on to state:

 

"...that its immediate objective was to bring a cessation. of hostilities rather than to deal with specific provisions contained in resolutions of the Security Council." [Ibid., para, 47].

 

Thus, the Security Council resolutions adopted earlier in the year had been disregarded by Pakistan in the sense that it had introduced other forces and heavy fighting and been taking place in the northern areas. What I said this morning referred very largely to the offensive in Western Kashmir. While that offensive was going on, however, and despite the injunctions of and the undertakings given to the Security Council that any material changes in the situation should be reported, a considerable offensive was taking place in the Northern areas: I shall refer to the details of this latter offensive when I deal with the Northern areas.

 

As a result of this heavy fighting, the Commission was naturally concerned about the immediate objective of achieving a cease fire. The Commission met in Geneva, and finally got to Karachi on 7 July. It was at that time that there occurred the new development which has been described as a "bombshell" in a book written by Mr. Korbel, who was then the Chairman of the Commission. I read from the Commission's report as follows:

 

"The Commission stopped in Karachi from 7 to 9 July. The principal representatives were received informally by the Minister for Foreign Affairs and Commonwealth Relations, Sir Mohammed Zafrullah Khan. He reviewed at length, and along the lines of the expositions made before the Security Council, the general background of the problem and the broader issues involved in the dispute between India and Pakistan. In the course of this interview" and this is the relevant passage-"the Foreign Minister informed the members of the Commission that the Pakistan Army had at the time three brigades of regular troops in Kashmir, and that troops had been sent into the State during the first half of May. Sir Moham med Zafrullah Khan stated that this action had been taken as a result of the spring offensive by the Indian Army." [Ibid., para. 40.]

 

The Security Council resolution had asked for information with regard to any material change in the situation. The above mentioned information given by Sir Mohammed Zafrullah Khan was regarded as a material change in the situation and was communicated to the Security Council. I read again from the Commission's report:

 

"At the 19th meeting, on 20 July, a confidential cable was drafted and dispatched informing the Security Council of the presence of Pakistani troops in Kashmir. The Commission adopted a resolution requesting the Secretary General of the United Nations to appoint a military adviser." [Ibid., para. 53.]

 

It was the presence of these troops-which had been denied all along, but was admitted by the Foreign Minister of Pakistan when the Commission arrived in Karachi-that created a new state of affairs. At a later stage, the Pakistan Government gave the reasons for this invasion. The report continues:

 

"Sir Mohammed Zafrullah Khan stated that three main reasons had motivated the entry of Pakistan troops into Kashmir: protection of the territory of Pakistan from possible aggression by Indian forces; prevention of a fait accompli in Kashmir by the Government of India; and prevention of the influx of refugees in Pakistan." [Ibid, para. 51].

 

I submit that none of these reasons have anything to do with the people of Kashmir. We have heard a great deal about their future and their destiny, but if the protection of the territory of Pakistan from Indian forces does not sound like a preventive war I do not known what it is-that is the situation were a Member State gets the right to go into a neighbouring territory for fear that it might be attacked from that State. So protection of its territory, the first reason, is not a reason that is sanctioned by the principles of the Charter.

 

With regard to the prevention of a fail accompli in Kashmir by the Government of India, so far as the legal position is concerned, whether the Pakistan Government accepted it or not, it had been put before the Security Council; and if the view was that a fait accompli must not be brought about, then the Pakistan Government intended, in spite of the resolution of the Security Council, to decide this by force of arms, that is to say, to use its troops in order to prevent a fait accompli.

 

The third reason was to prevent the influx of refugees into Pakistan, and I would say that of all the reasons given this is the one that least holds water. After the partition there were seven or eight million people leaving in each direction. Refugees came from Pakistan into India and from India into Pakistan one of those horrid scenes in our common history which I hope we shall be able to forget some day. But the idea of troops moving in to prevent the influx of refugees into Pakistan is difficult to understand. The only refugees who Pakistan presumably were those who preferred Pakistan as a went into home. Do we understand that the Pakistan Government was going to prevent these refugees by the use of an army ? So there are three reasons given, none of which in my submission have any substance.

 

This other matter to which I referred just now was a matter of serious concern to the Government of India and the Commission hopes that. The Commission says-these are the Commission's findings-that Pakistan had not informed the Security Council of the presence of its troops in Kashmir because at the time they had been sent into the state the question had been entrusted to the Commission, whose daily departure was expected. This is Sir Mohammed Zafrullah Khan's explanation. The matter put before the Commission immediately after its arrival in Karachi, in the view of the Foreign Minister of Pakistan-that is, the presence of foreign troops in Kashmir-did not raise the question of international obligations since Pakistan had never accepted any in regard to non-inter ference in Kashmir.

 

This view was repeated in Mr. Khan Noon's statement. before the Security Council, that is to say that Pakistan had no international obligations in regard to non-interference in Kashmir. I submit this is a violation of the provisions of the Charter. Therefore the explanation that is given, that is, that the Commission "is coming here so we will not let it know", when the Security Council had asked six months before that these things should not be done, does not hold water. And what is more, this would have been more plausible if in the course of these six months there had been no denial. Then, to buttress this argument, the Foreign Minister went on, says the Commission, to dwell at length on economic and strategic considerations. Now if it is right to lead an army into a country for economic and strategic reasons, then I think that the causes of his negation are even more justified.

 

The Commission goes on to say:

 

"The Minister for Foreign Affairs...argued that India, if it had control over Jammu and Kashmir, would be in a position to divert all five rivers of the Punjab, i.e. the Chenab, Jhelum, Beas, Sutlej and Ravi, the last three being already under Indian control, and thus could reduce to a desert one third of the irrigated areas of West Punjab." [Ibid., para, 67.]

 

I think the most amazing paragraph is paragraph 68 of this report which says that the Minister for Foreign Affairs pointed out.

 

"...that, if the Radcliffe Award had followed the terms of reference under which the Boundary Commission had operated and had included all Muslim majority areas in West Punjab, the Pakistan boundary would have been much further to the east." [Ibid., para. 68].

 

Now what is the implication of that paragraph ? The Commission pointed out that Lord Radcliffe had given an award and that award, in this particular respect, was not satisfactory to Pakistan and in many respects it was not satisfactory to us. And here the Foreign Minister is saying that if the Radcliffe Award had been given the other way then of course the question of Kashmir would have been further east and the question of direct access would not have arisen. Therefore, by implication, this invasion is a method of modifying the Radcliffe Award by force.

 

At the time it became public knowledge-we knew all the time that it was going on-that Pakistan had invaded Kashmir, this created a great deal of feeling in India, and the Prime Minister made some reference to it in some speeches he delivered, against which Pakistan protested. And the response of the Commission is significant in this matter to show how it felt about it. At the 30th meeting on 6 August the Commission considered a telegram received from the Government of Pakistan protesting a speech delivered by the Prime Minister of India, Mr. Nehru, on 25 July in Madras and asking what measures were contemplated by the Commission. The Commission felt that in view of the presence of Pakistani troops in Kashmir, any representation to the Government of India regarding this speech of the Prime Minister would be ill-advised and therefore the telegram was acknowledged without comment. The Commission exchanged views concerning alternatives-this is another significant part-to a plebiscite, keeping in mind that the study of the alternatives could not be seriously undertaken without the consent of the Governments of India and Pakistan.

 

During these same meetings, the Government of India and the Government of Pakistan produced before the Commission the various conditions which they regarded as necessary for establishing a cease-fire. The Pakistan position, so far as I understand it, subject to correction, as set out in paragraph 50 of the report of the Commission, was that a cease fire should come after arrangements for a political settlement-a very familiar argument in the United Nations,

 

The principles which the Government of India regarded as necessary for agreeing to a cease-fire, as set out in paragraph 46, 47 and later, were the following: when the Commission, under its Chairman, Mr. Graeffe, interviewed the Prime Minister, the following points were submitted on behalf of the Indian Government: (1) the regular Pakistan forces should be withdrawn from the State of Jammu and Kashmir; (2) Indian forces should remain along fixed lines and occupy certain advanced strategic positions; and (3) the evacuated territories situated outside of the fixed line should be provisionally administered by existing local authorities, or, if necessary, by local authorities to be designated by the Commission, and should be supervised by observers of the Commission, but remain under the sovereignty of the State of Jammu and Kashmir until the final settlement of the dispute between India and Pakistan.

 

Therefore, these principles, which were put forward ultimately and which to a very great extent found favour in the Commission, were based upon the idea of the sovereignty of the State, that is to say that it is indivisible, that its parts can not be taken by invasion, that the Indian forces have the right and the duty of protecting this area and that the invaders must evacuate. That is the crux of the case the invaders must evacuate the territory and, if it is necessary, there should be local authorities there-not governments but merely local authorities. for the maintenance of law and order under the provisions of the Commission. That was the position, as may be seen from the resolutions that were adopted later.

 

As a result of those discussions, the Commission, having put to both the Government of Pakistan and the Government. of India the various points of view, and in view of Pakistan's. objection as set out in the report, at its meeting on 13 August finally formulated the resolution which forms the basis of the Kashmir question so far as the Security Council is concerned. This is the well-known resolution of 13 August 1948 which brought about a cease-fire. As I stated a short while ago, the concern of the Commission at that time was to a large extent the establishment of a cease-fire so that the fighting might be stopped. I shall not read out the resolution, as it is very long. one, but there are certain points of it to which I must draw attention. This resolution was referred to in the statement by the Foreign Minister at the 761st meeting, and I believe that in the interests of clarity and accuracy one ought to draw attention to it.

 

The representative of Pakistan stated:

 

"The main provisions of this international agreement for a plebiscite are :

"(1) Cease fire and demarcation of a cease-fire line." We have no quarrel with that.

 

"(2) Truce agreement providing, inter alia, for: (a) withdrawal of tribesmen and Pakistan nationals the... (b) withdrawal of Pakistan troops and the bulk of the Indian Army... (c) plebiscite to be conducted..." meeting, pra. 32).

 

This might appear to be of very little importance if one did not know the history of this matter, because this resolution is really conceived in three consecutive parts. The part referring to the plebiscite is not part II but part III, which has very considerable relevance to the whole approach to this problem. Part I is concerned only with a cease-fire. It places responsibility on the High Commands of the Indian and Pakistan forces "to refrain from taking any measures...". I shall not read out the whole resolution. It establishes the cease-fire as between the two High Commands. Part I, paragraph E, is relevant in this connexion :

 

"E, The Government of India and the Government of Pakistan agree to appeal to their respective peoples to assist in creating and maintaining an atmosphere favourable to the promotion of further negotiations."

 

Neither before 13 August nor after 13 August until the present time, the Council will come to see when we deal with present conditions, has there been any appearance that this has been done by the Government of Pakistan as reflected in the public opinion of Pakistan. This is not to say that the peoples of Pakistan are against the peoples of India, but there has been a campaign of hatred and a campaign of a holy war against India.

 

Now that the case-fire has been established, so far as the Government of India is concerned that is an agreement into which it has entered and which should be supervised by an international body of observers.

 

Part II relates to the truce agreement. The plan of this programme is that, first, there should be a cease-fire, then there should be a truce agreement and then comes the third part. Part Il is divided into three sections; A, B and C. Paragraph 1 of section A states:

 

"As the presence of troops of Pakistan in the territory of the States of Jammu and Kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Council, the Government of Pakistan agrees to withdraw its troops from State."

 

That is to say, one of the principles laid down in this resolution was that a material change in the situation had been brought about, and as a result of that, it was necessary as one of the first conditions of the truce that there should be withdrawal of the troops of Pakistan from the territory of Jammu and Kashmir.

 

Paragraph 2 states:

 

"The Government of Pakistan will use its best endeavour to secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistan nationals not normally resident therein who have entered the State for the purpose of fighting."

 

Our submission is that there has been no withdrawal of these nationals to the extent that is required in this matter. What are called "other armies' ' in Kashmir are under the control of the Pakistan command. They are offered by Pakistan officers, and their administration is under Pakistan control. Therefore, to say that paragraph 2 of the truce agreement has been carried out is not accurate.

 

Paragraph 3 states:

 

"Pending a final solution, the territory evacuated by the Pakistan troops will be administered by the local authorities under the surveillance of the Commission."

 

This is an integral part of the conditions, and the principle for which India asked and which is incorporated by the Commission in its resolution. What is the position today? I shall deal later with the political conditions, but there are no local authorities. The administration in that area is directly under Pakistan administration through its own officials, and the authorities in Kashmir are controlled from Karachi. So there is no such thing as local administration, much less supervision by the Commission. So that part also has not been carried out.

 

Now we come to some of the other more important matters. Section B, paragraph 1, begins with "When the Commission shall have notified the Government of India that the tribesmen and Pakistan nationals referred to in part II, A, 2 hereof have withdrawn, thereby terminating the situation which was represented by the Government of India to the Security Council as having occasioned the presence of Indian forces in the State of Jammu and Kashmir, and further, that the Pakistan forces are being withdrawn from the State of Jammu and Kashmir, the Government of India agrees to begin to withdraw the bulk of its forces from that State in stages to be agreed upon with the Commission."

 

That is to say, it is only when the Commission has notified that the tribesmen and Pakistan nationals have withdrawn and, secondly, when the conditions on which we came here, namely, an invasion, has disappeared, it is at that time that the Government of India must withdraw the bulk of its forces. That is the position taken in August 1948. It was something undertaken on the basis of conditions. "Pending the acceptance of the conditions for a final settlement of the situation in the State of Jammu and Kashmir, the Indian Government will maintain, within the lines existing at the moment of the cease fire, the minimum strength of its forces which, in agreement with the Commission, are considered necessary to assist the local authorities in the observance of law and order." (section B, para. 2)

 

Therefore, this part II. section B, is a recognition of the fact that the security of the State is the concern of the Government of India. That is again amplified in the phrase that follows in section B, paragraph 3:

 

"The Government of India will undertake to ensure that the Government of the State of Jammu and Kashmir will take all measures within its power to make it publicly known that peace, law and order will be safeguarded

 

It is given the responsibility for law and order and the responsibility for security. What is more, it was a condition that the Indian forces should withdraw only when all others had withdrawn, and the reason for bringing the case had disappeared. That is set out in section B.

 

In the discussions that have gone on in the Security. Council after this period-1952 and subsequently-these matters have been put to one side. The reason is not hard to seek, because we were confined to one problem, a problem that could be implemented only after this came into effect.

 

However, so far as the Government of India is concerned, in spite of this condition in section B of the resolution, we have withdrawn a considerable part of our forces. There is an army in Kashmir, and, as far as Kashmir-which is not under foreign occupation-is concerned and as far as India is concerned, that is the Indian Army. It is the Kashmir Army. It could no more be called a foreign army than the British Army would be called a foreign army in Lancashire. It is a part of the army and the local militia that the Kashmiris are entitled to have. In spite of the fact that these foreign nationals are there, in spite of the fact that the aggression has not been eliminated, we have withdrawn a considerable part of our troops.

 

The Foreign Minister made some arithmetical calculations and told us that India had 80,000 troops in this area and, what is more, that constituted one-twelfth of the population. I think that if we applied these mathematics in one place it might be useful to apply them in some other place. There are today forty five battalions in those outposts around "Azad '' Kashmir, and there are only half a million people there. Therefore the Security Council can work out the mathematics on that. I am not referring to other areas at the moment; I am referring to that half million people in what is called the "Azad" area, where there were, at the time when the Commission was investigating thirty two battalions, which have now become forty-five battalions. Therefore, if we face the question of having troops, that is the position.

 

On this matter, I also wish to submit that Kashmir is the northern extremity of India. The Indian Army is deployed in the various sectors of the country, and this is one area where it has to function, not only for the protection of Kashmir and all that is involved therein, but because it is the place where it normally would be located.

 

If we are to take this into account, then, as I shall point out later, we shall have to take into account the divisions of the Pakistan Army that are located about five, ten and twenty miles from our border. That is, if it is right to have the Pakistan Army in Abbottabad or in Murree or in any of these areas, then it is necessary for the Indian Army to be held somewhere. Therefore, the idea that this is an occupation, which is what has been represented to the Security Council, is a total misnomer.

 

Then we come to part III of the resolution of 13 August 1948, which is the crucial part. Part III states, and I would request you, Mr. President, to give your very careful attention to this:

 

"The Government of India and the Government of Pakistan reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the truce agreement both Governments agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured".

 

The commitment about a plebiscite is usually spoken of as though it were the law of the Medes and Persians, but what does it amount to ? It amounts to an expression of a wish on the part of the two Governments. The expression of a wish is far less than what may be called an international obligation. However, I do not wish to argue that point. But take the other one, that it should be carried out upon the acceptance of the truce agreement. There has been no truce agreement signed, because Pakistan armies have not vacated and, what is more, there are continued violations.

 

As I shall point out later, there are large numbers of changed conditions under which it is no longer possible to consider the matter in these terms. So any suggestion that the Government of India-and this is the burden of the apprehension about us, and there is no further charge-has a commitment that it is not honouring. I totally deny it. So far as we are concerned, the commitment is for the acceptance of a truce agreement. It is not to take a plebiscite but to enter into consultations. That is a very different thing from doing something.

 

First of all, there is no truce agreement. Therefore, if number two does not happen, number three is out of court. Number one is the cease-fire we have performed. Number two is the truce agreement. I have given the reasons why the truce agreement is not being carried out. Therefore, number three means that it is only when number two has been accomplished that number three comes into the picture at all. The character of number three is not just a matter of taking a plebiscite, but that the Government enters into consultations. This means that the two parties shall enter into consultations in the same way, shall we say, as was arranged in connexion with elections in Indo China. That is all there is to it. Those consultations have taken place, even without a truce agreement, and nothing has come of them.

 

Now the resolution of 13 August 1948 was not accepted by Pakistan. We accepted this resolution, and as I told the Security Council a while ago, we had previously set out the principles that should be embodied. While the resolution was not one that totally met our point of view, with a view to resolving the position the Government of India accepted this resolution which was adopted by the Commission on 13 August. But still there was no cease-fire. The fighting was going on in the northern areas. It was becoming more intense. The Commission reported to the Security Council and made further efforts and returned to the Indian peninsula.

 

It is essential in reading the document of 13 August, which is a resolution of the Commission, to appreciate that this document should be read along with the assurances given in writing by the Commission to the Government of India, because they form one document. If you like, that as a contact, These are the warranties. This document cannot be regarded as isolated from the context of the assurances given.

 

Those assurances were set out in a letter that was sent by the Prime Minister of India to the Commission on 20 August 1948. May I say here that the facts of this letter are not private, as is sometimes hinted in some newspapers, between the Commission and the Prime Minister. They were published and, in the next stage of negotiations, Pakistan and India came into agreement on the resolution of 5 January 1949. Pakistan, if it agreed to that, had cognizance of these conditions.

 

That letter [S/1100, para, 78] says the following.

 

"On 17 August, my colleague, the Minister without Portfolio, and I discussed with you and your colleague of the Commission now in Delhi the resolution which you had presented to us on the 14th instant," that is the resolution that had been previously by the Commission and presented to us.

 

Then, a little further on, it goes on to say:

 

"2. During the several conferences that we had with the Commission when it first came to Delhi, we placed before it what we considered the basic facts of the situation which had led to the conflict in Kashmir. This fact was the unwarranted aggression, at first indirect and subsequently direct, of the Pakistan Government on Indian Dominion territory in Kashmir. The Pakistan Government denied this although it was common knowledge. In recent months, very large forces of the regular Pakistan Army have further entered Indian Union territory in Kashmir and opposed the Indian Army which was sent there for the defence of the State ''-which is envisaged by this resolution. "This, we understand now, is admitted by the Pakistan Government, and yet there has been at no time any intimation to the Government of India by the Pakistan Government of this invasion. Indeed, there has been a continual denial and the Pakistan Government repeated inquiries from the Government of India.

 

"In accordance with the resolution of the Security Council of the United Nations adopted on 17 January 1948, the Pakistan Government should have informed the Council immediately of any material change in the situation while the matter continued to be under the consideration of the Council. The invasion of the State by large forces of the regular Pakistan Army was a very material change"-I am sure the Council will agree-; "in the situation, and yet no information of this was given, so far as we know, to the Security Council.

 

"The Commission will appreciate that this conduct of the Pakistan Government is not only opposed to all moral codes as well as international law and usage, but has also created a very grave situation. It is only the earnest desire of my Government to avoid any extension of the field of conflict and to restore peace, that has led us to refrain from taking any action to meet the new situation. that was created by this further intrusion of Pakistan armies into Jammu and Kashmir State. The presence of the Commission in India has naturally led us to hope that any. arrangement sponsored by it would deal effectively with the present situation and prevent any recurrence of aggression." I would like the Council to take note of that sentence, that is to say, the fact that the Commission was intervening in this matter and brought this resolution to us. They had reason at that time to think that the aggression would be terminated, but nothing of that kind happened.

 

"3. Since our meeting of 18 August, we have given the Commission's resolution our most earnest thought. There are many parts of it which we should have preferred to be otherwise and more in keeping with the fundamental facts of the situation, especially the flagrant aggression of the Pakistan Government on Indian Union territory. We recognize, however, that if a successful effort is to be made to create satisfactory conditions for a solution of the Kashmir problem without further bloodshed, we should concentrate on certain essentials only at present and seek safeguards in regards to them." There follow the safeguards which are very material :

 

"(1) That paragraph A. 3 of part II of the resolution should not be interpreted, or applied in practice, so as" (the paragraph with regard to local authorities).

 

"(a) To bring into question the sovereignty of the Jammu and Kashmir Government over the portion of their territory evacuated by Pakistan troops"-that is to say, that neither the invasion by Pakistan nor the fact that they evacuated it under orders from the Commission would in any way affect the sovereignty of the Jammu and Kashmir Government. That was the condition we made;

 

"(b) To afford any recognition of the so-called 'Azad' Kashmir Government; or

 

"(c) To enable this territory to be consolidated in any way during the period of truce to the disadvantage of the State." That is what has happened since the portion was administered from another place.

 

"(2) That from our point of view the effective insurance of the security of the State against external aggression, from which Kashmir has suffered so much during the last ten months, was of the most vital significance and no less important than the observance of internal law and order, and that, therefore, the withdrawal of Indian troops and the strength of Indian forces maintained in Kashmir should be conditioned by this overriding factor."

-that is to say, we emphasized the point that we have the responsibility for security. "Thus at any time the strength of the Indian forces maintained in Kashmir should be sufficient to ensure security against any form of external aggression as well as internal disorder.

(3) That as regards part III"-that is ascertaining the will of the people-, "should it be decided to seek a solution of the future of the State by means of a plebiscite, Pakistan should have no part in the organization and conduct of the plebiscite or in any other matter of internal administration in the State."

 

Therefore, it was not as though there were two parts in a pod and two people with some equal jurisdiction over this. The plebiscite was merely a concession, merely a method, whereby some peaceful settlement could be brought about. Therefore, we made the reservation that this should be done. Then the Prime Minister went on to say:

 

"4. If I understood you correctly, A. 3 of part II of the resolution does not envisage"-this is the Commission's position being taken-"the creation of any of the conditions to which we have objected in paragraph 3 (1) of this letter. In fact, you made it clear that the Commission was not competent to recognize the sovereignty of any authority over the evacuated areas other than that of the Jammu and Kashmir Government."

 

I ask the Council to take notice of this; that is, the Commission says that they have no authority to recognize any sovereignty other than that of the Jammu and Kashmir Government. In the face of that, how can the Security Council contemplate with equanimity the position that part of the territory has been invaded, usurped, annexed and assimilated ?

 

The next paragraph says the following:

 

"As regards paragraph 3 (2), the paramount need for security is recognized by the Commission"-that is to say, the sovereign function of defence is placed upon India-"and the time when the withdrawal of Indian forces from the State is to begin, the stages in which it is to be carried out and the strength of Indian forces to be retained in the State, are matters for settlement between the Commission and the Government of India."

 

That is to say, there is no mention of the words "the Government of Pakistan" so far as that is concerned.

 

The next paragraph reads as follows: "Finally, you agreed that part III, as formulated, does not in any way recognize the right of Pakistan to have any part in a plebiscite."

 

Then the Prime Minister concludes:

 

"In view of this clarification"-these are all clarifications given by the Commission, and I shall read out the confirmation in a moment-"my Government, animated by a sincere desire to promote the cause of peace and thus to uphold the principles and the prestige of the United Nations, have decided to accept the resolution".

 

To complete this chapter, may I know the permitted to read the acceptance of the Commission [S/1100, para 79]

 

"I have the honour to acknowledge the receipt of your communication dated 20 August 1948 regarding the terms of the resolution of the United Nations Commission for India and Pakistan which the Commission presented to you on 14 August 1948.

 

"The Commission requests me to convey to Your Excellency its view that the interpretation of the resolution as expressed in paragraph 4 of your letter coincides with its own interpretation, it being understood that as regards point (1) (c) the local people of the evacuated territory will have freedom of legitimate political activity. In this connexion, the term "evacuated territory" refers to those territories in the State of Jammu and Kashmir which are at present under the effective control of the Pakistan High Command.

 

"The Commission wishes me to express to Your Excellency its sincere satisfaction that the Government of India has accepted the resolution and appreciates the spirit in which this decision has been taken." Therefore, there are assurances given and discussed for a very long time; clarifications sought and given; and, in categorical terms, a letter signed by the Chairman of the Commission on 25 August, which completes the resolution of 13 August. Therefore, I submit that the Security Council in considering this resolution-I will come to the next one in a moment-has to read it along with these clarifications and assurances. Otherwise, the Security Council has said to us that we are to accept one part of what the Commission says, and not the other. Our acceptance was of this document along with those clarifications. Pakistan did not accept this.

 

I should also add that whatever is said here also refers to the Northern Territories-that is to say, the territories where, as I shall point out later, owing to the instrumentality of the local commanders, who are not local people at all, affiliations have been received and a considerable amount of fighting has taken place.

 

In regard to these Northern Territories, the Prime

 

Minister said [1100, para. 80]:

 

"The authority of the Government of Jammu and Kashmir over this region as a whole has not been challenged or disturbed, except by roving bands of hostiles, or in some places like Skardu which have been occupied by irregulars or Pakistan troops. The Commission's resolution, as you agreed in the course of our interview on the 18th, does not deal with the problem of administration or defence in this large area. We desire that, after Pakistan troops and irregulars have withdrawn from the territory, the responsibility for the administration of the evacuated areas should revert to the Government of Jammu and Kashmir and that for defence to us."

 

That is to say, in regard to these problem territories of Baltistan and Gilgit, and all those areas, there is a difference between the local authority issue in West Kashmir, where it was suggested there were some local movements, and this one. The Government also said: "(The only exception that we should be prepared to accept"-it did not accept it, but it, but it was prepared to do so "would be Gilgit.) We must be free to maintain garrisons at selected points in this area for the dual purpose of preventing the incursion of tribesmen, who obey no authority, and to guard the main trade routes from the State into Central Asia".

 

India has considerable trade through these areas into the

 

Central Asian region and the lower provinces of Asia, of Russia, of China and of Tibet. In answer to this northern area's question, similarly, the Commission agreed. I shall read out the paragraph which relates to this agreement.

 

"The Commission wishes me to confirm that, due to the peculiar condition of this area, it did not specifically deal with the military aspect of the problem in its resolution of 13 August 1948. It believes, however, that the question. raised in your letter could be considered in the implementation of the resolution."[S/1100 para. 81].

 

The Commission, therefore, tried to make further effort, because the cease-fire could come about only if there. were the agreement of the two sides. It met in Geneva in September, prepared its procedure, and then reported to the Security Council in Paris. Then it proceeded to the peninsula and produced a series of proposals on 11 December 1948 [S/1196, annex 3]. And those proposals of 11 December, which were passed by the Commission in its private sitting, were communicated to the Governments of India and Pakistan. India accepted them on 23 December, and I believe that Pakistan accepted them on 25 December.

 

So, by 25 December, we had a situation where the Commission, as passed in its private sitting on 11 December, was accepted by both Governments, and that became the resolution of 5 January 1949 [S/1196, para. 15]. In this matter a different procedure was followed. That is to say, the resolution was first set up by the Commission and put to the two Governments; their agreement was obtained, and it was formalized.

 

This is a convenient moment to point out how we stand with regard to this, because these are the two resolutions to which we have given any agreement at all-that is the resolu of 13 August 1948 and of 5 January 1949. My submission is that so far as those resolutions are concerned they stand by their texts and by their intention. That is the first point. The second point is that they should be read together and their sequence taken into account. The third point is that these resolutions are also to be read along with, and to be conditioned by, the assurances I have read out to the Council and the other assurances that are given by the Commission with regard to the resolution of 5 January.

 

These assurances are printed in aid-memory which were submitted to the Commission and which are in the official records of the Security Council S/1196, annex 4]. It was stated therein :

 

"The Prime Minister emphasized firstly that, if the Government of India were to accept the Commission's plebiscite proposals, no action could be taken in regard to them until parts I and II of the Commission's resolution of 13 August had been fully implemented"-that is one of the things that is said in regard to the resolution of 5 January-; "secondly that, in the event of Pakistan not accepting these proposals or, having accepted them, of not implementing parts I and II of the resolution of 13 August, the Indian Government's acceptance of them should not be regarded as in any way binding upon them"-I shall come back to this in a moment-; "and thirdly, that part III of the Commission's resolution of 13 August provided that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will the people and to that end, upon acceptance of the truce agreement, both Governments agree to enter into consultation with the Commission to determine fair and equitable conditions whereby such free expression will be assured'.

 

"...While the Government of India adhered to their position in regard to plebiscite, they had pointed out that, in view of the difficulties of holding a plebiscite in present conditions in Kashmir, other methods of ascertaining the wish of the people should also be explored. The Commission had itself recognized the difficulties of carrying out a plebiscite in Kashmir. The Government of India feel that the exploration of other methods should not be ruled out,"

 

For the present purposes I am satisfied to put in this aide-memoire for the information of the Security Council. If. In further debate, should there be any challenge upon them, then I would have to argue what is in those aide-memoire. But the main thing is this: "secondly that, in the event of Pakistan not accepting these proposals or, having accepted them, of not implementing parts I and II of the resolution of 13 August..."-and our submission is that parts I and II of the resolution are not implemented, and that therefore the Government of India cannot be regarded as being bound by those resolutions, because that is the consecutive character. It is a concerted resolution. Unless A is accomplished, B cannot be undertaken; unless B is accomplished, C cannot be undertaken. Apart from what C means-something to which I have referred-, B has not been implemented, and so unless there is a truce, unless there is evacuation, how does the Security Council even contemplate the idea of anything in the nature of an assessment of the will of the people in the occupied areas of Pakistan, with forty-five battalions of these forces, the entire. army of Pakistan, right up on our frontiers? And when I deal with the military preparations in that area, the Security Council I hope, will begin to sit up and take notice. That has nothing to do with the welfare of those people. The people in the Azad areas, the people in Gilgit, the people in Chitral and the people in Baltistan-they do not go around in aeroplanes, and the Council will be bound to enquire what is the purpose of these airfields and airstrips in these areas.

 

I think it would be regarded as unfair to the Council if I did not refer to the fact that the resolution of 5 January 1949 deals, in the main, with the implementation of part III of the resolution of 13 August 1948, which deals with the cease-fire and the truce and leaves the plebiscite in one paragraph. What the resolution of the 5 January does is to elaborate the ways in which a plebiscite should be taken. Practically the whole of this resolution deals with the methodology of this plebiscite, but it is not as though it is laid down categorically. There are so many "ifs" and "whens" in this which are integral to the commitments made by India. The Council will bear with me if, on behalf of the Government of India, I try to clarify this matter, because it is a serious matter to tell a Government that it is not honouring its commitments; and it can only honour the commitments which it has undertaken. A commitment does not become a commitment by assumption of what has gone before.

 

Now, what is this resolution of 5 January 1949 ? It reads. as follows:

 

"The United Nations Commission for India and Pakistan,

 

"Having received from the Governments of India and Pakistan, in communications dated 23 December and 25 December 1948, respectively, their acceptance of the following principles which are supplementary to the Commission's resolution of 13 August 1949:

 

"1. The question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite." As everybody will notice, it says "will be decided"- a simple futurity. It does not say "shall be decided."

 

Paragraph 2 of this resolution governs paragraph

 

"2. A plebiscite will be held when it shall be found by the Commission that the cease-fire and truce arrangements set forth in parts I and II of the Commission's resolution of 13 August 1948 have been carried out and arrangements for the plebiscite have been completed."

 

That "when" still remains "when". And I shall submit later on that "when" not only remains so, but it is no longer possible.

 

Paragraph 3 of the resolution deals with the functions of the Plebiscite Administrator. I must say a word about the Plebiscite Administrator. Our position in this matter was that we did not like it, but that there was really no objection to man working out the details if he wanted to, so that he could put them into operation when the time came. We had no feeling about people coming into the country or seeing things for themselves and so, when it was pressed upon us, we agreed to the Plebiscite Administrator being appointed subject to all this expert advice.

 

Now we come to paragraph 4:

 

"4. (a) After implementation" and I ask the Council. to take note of these words-, "of parts I and II"-the previous paragraph said "when", "of the Commis sion's resolution 13 August 1948, and when the Com mission is satisfied that peaceful conditions have been restored in the State, the Commission and the Plebiscite Administrator will determine, in consultation with the Government of India"-not with the Government of Pakistan, "the final disposal of the Indian and State armed forces, such disposal to be with due regard to the security of the State and the freedom of the plebiscite."

 

There is one verbal implementation which I would like to make. It has always been understood that this expression "disposal", used in this resolution, means, to the Government of India, "disposition". The Council will see that is its meaning if it looks at the word "disposition" used in other places.

 

So paragraph 4, again, reiterates this fact, that nothing can happen until parts I and II of the resolution of 13 August 1948 have been carried out. Part I has been signed, although there have been serious breaches of the cease-fire-one of them of a serious character which developed into a miniature battle.

 

Hence, the whole of the resolution of 5 January is concerned with the minutiae of the plebiscite, but even in that, it makes it quite clear at what time it will occur. This is a plan of action. It is a blueprint. But you cannot operate it, you cannot pull the trigger on it until parts I and II are in operation. Part I is in operation; therefore, there is no fighting-and, so far as we are concerned, it will remain in operation. But part II is not in operation; and, what is more, the conditions that could have enabled part II to be in operation have been breached before this, without the knowledge of the Security Council and without conveying the information, and afterwards, and is being breached continually. In fact, a division of Kashmir, which is wrong both de jure and de facto, has taken place. This is a sheer violation of all the commitments made by the Government of Pakistan to the United Nations. That is the limit of our commitments in this matter.

 

That finishes the first part of my submission to the Security Council; that is, it takes us to what our commitments are. are. So far as I can remember, three or four resolutions were adopted by the Security Council before 13 August 1948 and 5 January 1949. I think that we should consider those two resolutions as one plan. The Security Council will appreciate, when it has gone through the papers and pondered, that all the previous resolutions are absorbed by these; the resolutions of 13 August and 5 January really take into account all the previous resolutions. It is the submission of my Government that all the resolutions which may follow can only flow from these. Therefore, the binding conditions, whether they bind us or whether they are conditional bindings, or provide for denunciation and escape, all have to be taken into account. The only things that bind us in regard to Kashmir, so far as the Security Council and the world are concerned, are these resolutions with all the conditions I have mentioned. And I would say that, while we are not a member of the Security Council, as A Member State which has earnestly tried to discharge its solemn obligations to the international community, the Council will think many times before it is led even to think, lot alone express a view, that the Government of India has in some way tried to get round international commitments.

 

I shall try, in the course of my next submission, to deal with the matter of what a commitment is, what a decision is, and what a recommendation is.

 

One gathers the impression that there is some desire to know about the Constituent Assembly since, in our view erroneously, the Security Council seems to persist in the idea that this is some world-shaking matter. I must confess that the atmosphere of Christmas has been created, or some sort of D-Day or zero hour, for 26 January. But whatever may be the background which we are able to understand, we have the duty to point out what the facts are, and I have therefore decided to change the arrangement of my presentation. Logically, this should come much later, but in order to suit the convenience of the Council, and because, I want to tell you, I am not in a fit condition to sit through a third session continuously, I have changed the order of my presentation. Therefore, I propose now to take up first of all the claim-and by claim I mean the title or the argument, or the ease, or whatever it may be-that Pakistan may have for Kashmir. Secondly, I shall deal with the accession, and then with the Constituent Assembly, because if I do not deal with the accession, the Constituent Assembly becomes unintelligible. I shall be able to do all that this afternoon. I think it is very necessary that this political, social-if you like, logical aspect of this question should be understood.

 

From what we have heard in the Security Council, from all the discussions, the debates, the writings and everything else that goes on in Pakistan and which have been communicated in the views expressed by the foreign Press, there is some idea that over and above the Security Council decisions there is a basis for the affiliation of Kashmir to Pakistan, that there is some natural affinity.

 

What are these considerations? We accept some of these considerations, but we argue that they are either equally or more applicable to us. For the moment, I am putting to one side whatever title we may have derived. I am talking of the extra-legal considerations and the extra-security considerations.

 

The first of these is geographical contiguity, which is commonly accepted by all of us. The answer to that is that Kashmir has a frontier with Pakistan on the west and slightly to the north-west. It has a frontier with India and communications with India. It has a frontier with Russia in Sinkiang and China and Tibet. Therefore, Kashmir has a large number of frontiers.

 

Geographical contiguity is very often governed to a considerable extent by the historical past, and Kashmir's economic relations and commercial relations have been very much more with India than with Pakistan. This did not arise in the old days, because it was one country. Therefore, if it is a question of a common frontier and of contiguity, it is not as though the accession of Kashmir to India is the accession of the some far off island which is separated from the rest of our territory. To put it at its worst, contiguity is a common factor.

 

The other matter is one which my Government will not in any circumstances alter its position. We refuse to recognize what is called the "two-nation theory". India is a secular State, where any person, Hindu, Muslim, Christian. Buddhist, or whatever he is, is an equal son or daughter of India, with rights of citizenship guaranteed by our Constitution. India claims Islam as one of the Indian religions, just as it does Christianity or any other. Therefore, we refuse to accept the thesis that because the population of a particular area is of one religion, some political issue is involved. We are not a theocracy; we are a modern, secular State governed on democratic principles, where the right of citizenship is based on residence, upon domicile, and upon loyalty to the Constitution. Therefore, we totally disregard this argument with regard to Muslim majori ties and Hindu minorities, and everything else.

 

Some of you may say that is a very nice view, but it is not how the world is run. Then how do we look at it ? Pakistan has a population-I am subject to correction-of between 70 and 80 million, because I believe that their census, like ours, was taken in 1951, and our populations increase by 1.5 per cent a year. Roughly speaking, Pakistan has a population of somewhere about 75 million; but the proximity of Kashmir is to West Pakistan (Pakistan is in two parts and is separated by the Indian mainland extending for about 1,000 miles). Therefore the proximity of Kashmir, ethnically and otherwise, is to West Pakistan, and I have no accurate figures of the Muslim population of West Pakistan. However, at the very outside, it cannot be more than about 30 million, and there are nearly 50 million Muslims in India. If our Government were to accept the view that because people are Muslims, thay should belong to another State, I ask the Security Council, in all conscience, to consider what would happen to the con sizeable Muslim minorities in my country. They are distributed over the whole of our land. In some places they are sparse minorities, in some places they are almost the majority in the area. Are we to say that they are second-class citizens? We refuse to accept that position in India. We have almost as many Muslims in India-and I qualify the word "almost" as in the whole of Pakistan. We do not regard it as either a foreign culture or a foreign religion. What is more, whether it be in Pakistan or in India, whether they be Hindus, Muslims, Chris tians, or whatever they are, their ancestries are pretty much the same. One religion does not mean one race, nor does it mean that there is a separation between two religious groups.

 

We have this considerable Muslim population inside India, but it is not regarded as a minority. There is no question of the Muslims having any special sheltered treatment; they would not have it. They are equal citizens in our country, taking their place in our Government, in our public services, in our industry, in our agriculture, and in everything else, just like everybody else. The secular State is one those ideas and one of those possessions which we regard with great jealousy, because in this world the rivalry of religion and the amount of violence that has been carried out in the name of religious loyalty has been to an extent that should shame humanity at any time. Therefore, we are not prepared at any time to accept any view, whatever resolutions anybody may pass, that there is any justice or anything that a modern community can entertain in this idea of what was spoken of in the address of the Foreign Minister of Pakistan, who attributed it to Lord Mountbatten, about what is called communal representation or communal affinity, or something of that kind. [761st meeting, para. 13.]

 

The whole connexion of Kashmir is, as I said a while ago, with the mainland. Its capital was founded in the third century B.C. I am not an antiquarian, I have not studied it, but the history of Kashmir is a continuous one. It has been ruled by Hindu kings, by Muslim kings, by Sikh kings by Afghans, and by all kinds of people, but it has always been part of the mainland of India.

 

Therefore, those are extra-constitutional, extralegal, extra-United Nations considerations, by which I mean they are considerations which are outside the principles of the Charter, on the one hand and which do not come into any of the resolutions or any of the decisions which we have made. However, it was necessary for me to put them forward because it was on them that the other argument was based that the accession was wrong, that we got it by force or by fraud.

 

What, then, is the interest ? Sir Mohammed Zafrullah Khan said that there are strategic interests. Well, I would argue first of all that the strategic interests of a country should not always be placed in the picture when we are talking about the fortunes of the people of that country. But let us leave that alone. What if there are strategic interests? The strategic interests of a country like India, with its big land mass in the Indian Ocean, is at least as vital in the world as the strategic interests of its neighbour, and we are not aware of any strategic interests in our mind which are inimical to the strategic interests of Pakistan. Therefore, this strategic interest, which was advanced by the former Minister, in our opinion, is one that should not appeal to the Security Council.

 

What is the actual position with regard to this evaluation?

 

I outlined briefly this morning the relation of Kashmir to India, that is, that when the British left India these States were to accede to one country or to the other, to one Dominion or to the other. That was the position. That way was prescribed in the Constitution, and it would be of interest to know that the way of accession was not thought out after the partition. It is contained in the Act of 1935 passed by the British Parliament. The way of accession is for the Head of the State to submit an instrument of accession and for the Government of India to accept it or the Government of Pakistan to accept it. So an offer of accession and an acceptance completes accession. That creates a union within a federation.

 

On 26 October 1947 the Maharaja of Kashmir who was the Head of the State-I am now dealing with the constitutional necessities-submitted to the Governor-General of India an instrument of accession-in the Constitution of that day the Governor-General of India was the Head of the Government, but not today; he was the representative of the British Crown because at that time we were an independent British dominion. The text of this instrument is set out in annex IV of my statement [S/PV. 762/Add. 1, annex IV, document 5]. I will not read it because it is a legal document in conformity with what is said in the Constitution. I will read it if it is challenged, but otherwise I will not do so. It is set out in the Constitution, in the Act of 1935, as amended. That instrument was sent over on 26 October and on the 27th, Lord Mountbatten, Governor General of India, accepted the accession. Lord Mountbatten said: "I do hereby accept this instrument of Accession.'' The accession is complete. We should look at these caveats more. frequently than we have done. It has been suggested time and again that there is something like provisional accession, that you can go in and come out.

 

This is a very serious matter for us, a serious matter not only for India but for every country seated around this table. We are a federation; we are not a confederation, and the units that accede to federation stay in once they have acceded. There is no provision in our Constitution, there is no contemplation in our Constitution for the secession, and that is not peculiar to us. Our institutions are largely derived from Anglo-Saxon parliamentary institutions which affected the constitutions of the countries of Western Europe and North America. In these countries there is no provision for secession at all. That is to say, under the Government of India Act, as in force on 15 August 1947-the relevant extracts of which are in annex IV (S/PV. 762/Add. 1, annex IV, document 31-it has. been set out how a State should accede. Once that accession has taken place there is no provision in this to go out. The only provision there is, is in regard to variation. A ruler may, by a supplementary instrument executed by him, and accepted by the Governor General, vary the instrument of accession of his State by extending the functions which, by virtue of that instrument, are exercisable by any dominion authority in relation to the State. But, of course, the Government of India also has to agree. If the two sides agree, it is possible to vary the conditions of the relationship between the constituent unit in the federation and the central Government. That is all that is permitted by the law. Therefore, when any. one suggests to us that there should be a divorcement of this territory from our federation, we are being asked to act against our constitutional procedures. Now I freely admit that when the municipal constitutional procedures, as your learned colleague will advise you, are against well-known principles of international law-international law prevails. But in this particular matter the Constitution of India is presumed to be known to the United Nations when it was admitted as a Member. These provisions were there even before we were independent. Also, it is well known to international law that in a federation of our kind there is no right of secession.

 

I want here to refer only to two instances. One is the well known instance of the United States and it is possible to quote case after case to show where the constituent States of the United States have a greater degree of sovereignty than the units of our federation-one can say this without going into domestic affairs because they have residuary powers in those States. But it has gone to the Supreme Court of the United States time after time.

 

I want here to refer only to two instances. One is the well-known instance of the United States and it is possible to quote case after case to show where the constituent States of the United States have a greater degree of sovereignty than the units of our federation-one can say this without going into domestic affairs because they are residuary powers in those States. But it has gone to the Supreme Court of the United States time after time.

 

I think the leading case in this matter is a case called Texas v. White, where the Supreme Court ruled once and for all that there was no such right vested in a State. The issue was not whether they wanted to secede, but that was the point that had to be decided. For our purposes it is much better to go into the general principle of secession. If you want me to, I can quote it. But any textbook on this subject will tell you that in a federation there is no right of secession. Our Constitution in this sense is different from the constitutions of some other countries. In Texas v. White, the Supreme Court settled the constitutional question. The book Studies in Federalism, edited by Bowie and Friedrich states that "the Supreme Court settled the constitutional question of the right of secession, as it had in fact been settled by the Civil War." I did not want to refer to that because the Civil War was not exactly a judicial process. But, at any rate, it certainly showed the determination of a people to retain the unity of their country and which side really asserted itself.

 

But in this case the Supreme Court said:

 

"When, therefore, Texas became one of the United States, she entered into an indissoluble relation."

 

That is a provision of a constituent unit in the federation. In other words, a federation does not recognize divorce. Once it is in, it is a sacrament; it cannot be separated; it is an indissoluble relation.

 

The Supreme Court continued:

 

"All the obligations of perpetual union and all the guarantees of republican government in the Union, attached at once to the State."

 

That is to say, Texas by the fact of its admission, became an American State. It is not only Texas, but it is America, the United States of America.

 

The Supreme Court continues :

 

"The act which consummated her admission into Union was something more than a compact."

 

A State, in my submission, can no more banish itself from a federation than an individual can banish himself from a State. He has no right of divorcement from the community to which he belongs. There may be rules of exile in a country, but there is no way in which a man can disqualify himself except by committing a crime. The act which consummated the admission of Texas into the Union was something more than a compact; it was not a contract and therefore could not be dissolved.

 

The Supreme Court continued :

 

"...it was the incorporation of a new member into the political body. And it was complete and final... There was no place for reconsideration or revocation, except through revolution or consent of the States".

 

It is possible for the Parliament of India, in the exercise of its sovereignty and according to its constitution procedures which would require the consultation and the assent of the constituent State to separate it, but that is the kind of sovereignty that Professor Dicey spoke of when he said that a Parliament can do everything but make a man a woman. But that sovereign right is not what is at issue here. The issue is : what was the formal relationship which was contingent, which was conditional and which could be altered? Even if it were so, then a dispute about territory, to which the previous representative in this Chair, Mr. Gopalaswami Ayyangar, referred to and refuted, would have been very simple; but there is no such thing.

 

I would refrain from quoting the general principles on this subject, but I want to refer to another instance, particularly in order that the representatives of the United Kingdom and Australia can come nearer to this problem. Australia has six States. It is not a confederation. But power is much more dispersed, shall we say, than in Canada-and Western Australia, at one time, had ideas of separation. A plebiscite was taken. Some 130,000 people-in round numbers-voted for separation, and 30,000 people voted for remaining in. The plebiscite, then, was in favour of separation. That was before the Statute of Westminster, and therefore any alteration of the law would require the consent of the British Parliament. It went to Parliament, and the Parliament appointed a joint committee of the two Houses which sits in judicial session on these matters. The case was argued by counsel on both sides, and the parliamentary view about this was recorded in the joint committee's decision-that Western Australia could not secede. At any rate, if it were to secede, the decision had to come from the Australian Parliament and then it would not be secession, but it would be separation.

 

The right of secession, then, does not exist in our federation. This may be abstract law, but it is of very great importance to us. And I want to ask the members of the Council to address what would happen to what is now called India if this principle were not strictly enforced.

 

I have mentioned that there were 562 states before the British went away. A handful of them are part of Pakistan; the remainder are part of the Indian Union. If every local Maharaja had a different idea the next morning and started seceding, our unity would disappear in no time. What is applicable to Kashmir would be applicable to every state that has acceded if once we said that the accession is not permanent but provisional.

 

Therefore, the Government of India, out of considerations of security, out of considerations of international law and the law of India, and the law that has been given to it by the British Parliament, cannot ever accept the idea that accession is anything but an indissoluble bond. When Kashmir acceded, that matter was finished. Therefore, there is no such thing as going out. In the United States, as I said, they decided in other ways. Accordingly, any suggestion to us that the accession is provisional or temporary is very wrong.

 

We might then be asked: What is the meaning of the letter written by the Earl of Mountbatten, when he was Governor-General of India, to the Maharaja, about consulting the wishes of the people ? I do not want to evade this question.

 

As I pointed out, there is a document of accession. There is an offer and there is an acceptance. That concludes the arrangement. I will not call it a contract-but that concludes the arrangement. The letter of the Governor-General is a separate document and has nothing to do with this. What does that document do? It makes no guarantees. It expresses the wish of the Government of India-not as part of the law, but as part of a political policy. We are entitled to ask that the Security Council should make a distinction between what is a policy of a Government at any time and the constitutional law or the principles of international law that govern these matters.

 

Therefore, when the Governor-General of India wrote to the Maharaja and said "In accordance with the general policy that we follow, we will consult", he did not say anything about a plebiscite; he said that the wishes of the people would be consulted. I shall deal with this more in detail when we consider the question of the plebiscite. Whatever we may have said in that way has, first of all, nothing to do with Pakistan and nothing to do with the international community, it is something between the people of Kashmir and ourselves. It is a pledge to them and to nobody else.

 

The Foreign Minister of Pakistan has quoted a telegram in which my Prime Minister says to the former Prime Minister of Pakistan, Mr. Liaquat Ali Khan, that this is a pledge to all the world-a pledge to you and everybody else [761st meeting, para. 24]. I am going to deal with those telegrams of the Prime Minister, because they must be read out in the context

 

in which they happened. And we have always communicated this view to the Government of Pakistan. In the telegram of 31 October 1947, from the Delhi to Karachi the Government says:

 

"Kashmir's accession to India was accepted by us at the request of the Maharaja's Government and the most numerously representative popular organization in the State, which is predominantly Muslim. Even then, it was accepted on condition that, as soon as the invader had been driven from Kashmir soil and law and order restored, the people of Kashmir would be able to decide the question of accession".

 

That is why the Constituent Assembly becomes important -because, while we have no international commitment in this matter, we have a moral commitment to the peoples over there -that commitment in the context of subsequent events. Therefore, when we consider this question of consulting the wishes of the people, the plebiscite and so on, we should bear in mind that there are two aspects of it. One is the aspect of whether there is a commitment by the Government of India to other parties than the Security Council of the United Nations, and the other is the aspect of whether there is a commitment that has come in the context of the United Nations. And that is where consultation of the people has arisen.

 

First of all, the reason for stating this wish was the previous history of Kashmir. Kashmir was ruled at that time by a Maharaja who was far from having given it a popular Government. The leaders of the national movement were in prison. The national movement in India was in close association with the national movement of Kashmir, and the leaders of the Indian national movement had shared the prison life of these people. So this great national movement, which was kept under suppression by the Maharaja, really represented Kashmir in a political and social sense. And a Government like the Indian Government, which had grown out of a national movement after a peaceful revolution, would not have felt happy in merely accepting the accession-not for legal reasons, but political reasons of the Maharaja. It therefore consulted what was at that time the only widespread movement in the place-the National Conference.

 

While we are on this subject, it is good to say that the national movement in Kashmir started as a communal movement. It was first called the Muslim Conference and then, as soon as it became mature, it dropped this sectarian outlook and made itself national. For twenty or twenty-five years, it struggled and endured all the rigorous opposition to the law, and went in and resisted the Maharaja's rule.

 

Therefore, when we accepted this accession, we did the next best thing we could. And after that, if conditions had not been what they were, that is to say, if the country had not been invaded, if there had not been all that followed in the wake of the invasion, if the country had not been divided by the cease fire line into the occupied part and the free part-the part occupied by Pakistan and the part that is free in India-then it would have been possible to do something else.

 

It is in that context that the telegram to which the Foreign Minister of Pakistan has referred was sent to the former Prime Minister of Pakistan. And I would request the Security Council to read the text of that telegram, because it was more a message from the heart than from any political deliberations. It was a time when India and Pakistan were emerging from the background of the great mass slaughter on the north-western frontiers, and it was hoped on both sides to prevent any further spread of this bloodshed.

 

If the telegram is to be quoted, the next paragraph should also be read. The Foreign Minister of Pakistan quoted a paragraph-and it is accurate as far as it goes. But I submit that the Security Council, in looking at the document, has to look at the previous and the succeeding paragraphs, if necessary. Now, this is what the succeeding paragraphs say:

 

"I have no doubt that you realize that the raiders from the Frontier Province or along the Murree road came from Pakistan territory and that it is the easiest thing in the world to stop them at the two bridges which connect Pakistan territory to Kashmir."

 

In other words, it was an appeal to him to stop the blood shed at these bridges. They were not so prevented, and the equipment of arms, including artillery and automatic weapons, bears witness to the help being given them. The telegram goes on :

 

"We are credibly informed that regular officers of the Pakistan Army are advising these raiders. Even now, it should be easy for your Government to stop the passage of them and their supplies to the Kashmir territory."

 

Now, the statement made by Mr. Khan Noon should be read in the context of the telegram of 31 October 1947 from the Prime Minister of India and of the reply by the Prime Minister of Pakistan.

 

At the 761st meeting of the Security Council, I said that Mr. Khan Noon had referred-not only as regards the subject with which I am now dealing, but also as regards other subjects to private conversations between the Prime Ministers. I asked the Council's indulgence-and it was freely given-so that I might have an opportunity to consult my Prime Minister. At that time, I did not have before me the full text of the telegram in question. I have now obtained the necessary information from my Prime Minister. This is what he said:

 

"As far as we can find out, Sir Firoz Khan Noon's references to statements by me all relate to certain messages sent by me to Liaquat Ali Khan within the first ten days or so of the invasion of Kashmir in 1947."-I would ask the Security Council to place itself within the context of that background.-"During those days, we had no knowledge of the part that the Pakistan Army was playing in this invasion-that is, obviously helping the raiders. It was later, in November, that we came to know of the presence of the Pakistan Army itself in Kashmir, because our troops came into contact with them there. You will notice" and here the Prime Minister is referring to me-"that, at the time that I had suggested to Pakistan to make a joint request to the United Nations to under. take a plebiscite in Kashmir, Pakistan did not accept this, and in fact continued its aggression for a year subsequently, that is, throughout 1948.

 

"We went to the Security Council to avoid an all-out war with Pakistan. Later, the fact of Pakistan's aggression came out clearly. The military situation in Kashmir State began to be unfavourable to them.

 

"The resolution of the United Nations Commission of 13. August was agreed to by India, subject to clarifications. Pakistan did not agree to this resolution and continued the aggression. Owing to a further deterioration of the military situation, they agreed to the United Nations resolution of 5 January, which supplemented the 13 August resolution."

 

Now, this goes back to a very early period of the tumult. It was our hope that Pakistan would join us in settling the matter. At this point, I would like to say something that I shall have to repeat later. If an offer is made and it is not accepted at the time it is made, it cannot be held for generations. over the heads of those who made it. It is quite true that at that time we told Pakistan: "Let us go to the United Nations together and ask for a plebiscite." They did not agree. When they did not agree, that offer lapsed. They cannot come here years later and say: "You mentioned the word 'plebiscite'." That is the position. We have made many offers to Pakistan at various times. Some of these offers may be reconsidered, if necessary, when the time comes. But, if an offer made to an opposing party is not accepted within a reasonable time, it cannot be maintained that it is still an open offer. The offer terminates when it is not accepted. In very many cases, we have said that explicitly; where we have not done so, it must be taken as the normal state of affairs. This is the position as regards accession: there can be no conditional accession. That would be against our constitutional procedures. It would amount to denying citizens of India the right to live in a free country, where they have the fundamental guarantees of freedom; it would amount to making those citizens run that risk of having to live a different kind of life elsewhere-a risk which we are not prepared to have them run.

 

It has been said that we obtained this accession, on the one hand, by force and, on the other hand, by fraud. In any thing that I shall now say on the question of force, I do not wish to be understood as referring to the word "fraud". So far as force is concerned, I would say this: force did play a part in this accession. Force affected the timing so that the Maharaja had no alternative but to ask for protection. Apart from any questions of accession, apart from any questions of the law relating to this matter, I would ask the Security Council this question in all conscience: if a State is being invaded, is it not the most natural thing in the world for that State to ask a neighbour to come to its protection? Is such a request to be regarded as the imposition of force from outside ? We used no force in connexion with the accession.

 

I believe that the Security Council is familiar with communications in this respect from General Lockhart, the British Commander-in-Chief of our Army, and from Air Marshal Elmhirst, the head of the Air Force at that time in any case, I shall circulate these communications. These officers were commissioned by His Majesty the King of England, and were on temporary service with us. They had nothing to expect from us by way of reward, but they categorically stated that any suggestion that there was any conspiracy in connexion with this accession was entirely wrong.

 

Thus, I repeat, we used no force. The only force we used was that necessary to repel the invader-and I believe that is a force which we are entitled to use, and indeed are enjoined to use, under the Charter of the United Nations.

 

With regard to the other suggestion that some sharp practice was involved, I set out this morning the conditions of the standstill agreement. Had the State concluded the standstill agreement with us, we should immediately have become responsible for its foreign affairs, defence, and communications-but, as I said this morning, this matter was interrupted by the invasion. The Security Council will recall the chronology of the invasion which I read out this morning.

 

Therefore, it can be seen that it was not we who used force-or that other word which I do not want to use. The accession was legal. As I have already said, at one time, before the Maharaja had made up his mind, we asked the Governor General to tell him to accede to Pakistan if he so wished. Lord Mountbatten told the Maharaja categorically that we would not regard such accession to Pakistan as an unfriendly act. But that was before all these events which I have described took place. Thus, there was no question of our trying to inveigle the Maharaja into any kind of accession.

 

Questions may be asked regarding the right of the sovereign-that is, the Prince-to make the accession for the State, In this respect, we have the very reputable and, in this particular case, very helpful authority of Mr. Jinnah. Mr. Jinnah was President of the Muslim League and a founder of Pakistan He said the following on 17 June 1947, before he became Governor-General of Pakistan :

 

"Constitutionally and legally, the Indian States will be independent, sovereign States on the termination of Paramountcy, and they will be free to decide for themselves to adopt any course they like. It is open to them to join the Hindustan Constituent Assembly-"that was what they called us-,"or the Pakistan Constituent Assembly ''-that was their name-, "or decide to remain independent.... I am clearly of the opinion that the Cabinet Mission's memorandum of 12 May 1946 does not in any way limit them [in this choice]."

 

Just two weeks before the partition took place, Mr. Jinnah reiterated this attitude before the Muslim League. He said:

 

"They are free to join either of the two dominions, or to remain independent. The Muslim League recognizes the right of each State to its destiny."

 

There are other statements by Mr. Jinnah in which he says that the person to whom the accession should be offered is the Ruler. If that were not the case, there would be no legality. The Ruler is the repository of power. Whether, morally speaking, he is democratic or not is another matter. In an Indian State, however, all power flows from the Ruler-in some cases, this is true only in theory; in many cases, before independence, this was also true in form. There was, therefore, no one else who could have offered the accession.

 

I come now to the question of the Constituent Assembly. In acceding to India, every State-not only Kashmir-had the right, if it so wished, to call its own Constituent Assembly. They could have discussed various other matters, such as the allocation of various sources of revenue and all kinds of things like that. But the majority of States, in fact all of them after sometime some of them had toyed with the idea-decided that it was a waste of time and energy in procedure, so they elected members to the Indian Constituent Assembly. When the subject was under discussion and they did not see the reason, the princes of India-patriotic men and women as they were all realized the importance of allowing a united India to emerge, and it was the princes who came forward, without making any difficulties in regard to this matter, and decided to go into the Indian Constituent Assembly.

 

But in Kashmir a different situation had arisen on account. of this trouble, and therefore that matter was left alone. Besides, in Kashmir, there had been a powerful national movement which in 1944 had asked for a constituent assembly, and their demand for a constituent assembly is part of their national upbringing. I would ask the Security Council whether any democratic government could disregard a very well established feeling of that kind.

 

What I am here concerned in pointing out is that this idea of a constituent assembly was not something either strange in the relationships between India and the Indian states, or something that we conjured up just because of the Security Council. It was there long before there was an invasion of Kashmir, it was part of the demand of the people to the Maharaja. But the Maharaja had his own plans-like some countries have for their colonial territories and would not give them any power-and he would have none of it.

 

So the national movement in Kashmir wanted this constant assembly. Then came the war, the invasion and all these troubles and the matter was kept in suspense. Kashmir acceded in three main subjects only. There were various other matters, because under British rule there were varying relations between British India and the Indian States, and, in the case of Kashmir, there were a large number of problems, of customs and so on, to be resolved. So the people decided to have their own Constituent Assembly.

 

What does this Constituent Assembly amount to ? So far as the Security Council is concerned it has to look at the documents. These are constitutional documents and I would ask the Council to look at the document which is the source from which the Constituent Assembly in its present form derives its existence; then its scope will be seen; because it has been presented as if this Constituent Assembly were a device rather in disregard of all other processes. It is contained in the proclamation of the Yuvraj of Kashmir, the son of the Maharaja, who is elected by the people every five years-this is a democratic process. He is the head of the State, and he issued a proclamation on 30 April 1951, and this is the proclamation :

 

"Whereas it is the general desire of the people of the State of Jammu and Kashmir that a Constituent Assembly should be brought into being for the purpose of framing a constitution for the State'' (that is its terms of reference). "Whereas it is commonly felt that the convening of the Assembly can no longer be delayed without detriment to the future well-being of the State" (again a purpose with which we do not disagree),

 

And whereas the terms of the proclamation of the Maharaja" (his father) "dated 5 March 1948 in regard to the convening of a national assembly as contained in clauses 4 to 6 of the operative part of do not meet the requirements of the present situation" (it out of date),

 

"I, Yuvraj Karan Singh, do hereby direct as follows:

 

"1. A Constituent Assembly consisting of representatives of the people, elected on the basis of adult franchise, shall be constituted forthwith for the purpose of framing a constitution for the State of Jammu and Kashmir:

 

"2. For the purpose of the said elections the State shall be divided into a number of territorial constituencies each containing a population of 40,000 or as near thereto as possible, and each electing one member; a delimitation Committee shall be set up by the Government to make recommendations as to the number of constituencies and the limits of each constituency;

 

"3. Elections to the Constituent Assembly shall be on the basis of adult franchise, that is to say, every person who is a State subject of any class, as defined in the notification No.., is not less than twenty-one years of age on the first day of March has been a resident in the constituency for such period as may be prescribed by the rules, shall be entitled to register in the electoral rolls of that constituency, provided that any person who is unsound mind or has been so declared by a competent court, shall be disqualified for registration; "4. The vote at the election shall be by direct and secret.

 

ballot; "5. The Constituent Assembly shall have power to act notwithstanding any vacancy in the membership thereof " this is in order to provide for the places from which people could not be elected, in the occupied area : there again, they tried to work it out as smoothly as possible without talking about annexation or anything of that sort; they simply left those places vacant ;

 

"6. The Constituent Assembly shall frame own agenda and make rules for the governing of its procedure and the conduct of its business t

 

"The Government shall make such rules and issue such instructions and orders as may be necessary to give effect to the terms of this proclamation,"

 

Then it goes on to say that all things done before the issuing of this proclamation with a view to facilitating the provision of electoral rules for the purpose of election to the Constituent Assembly shall, insofar as they are in conformity with the provisions of this proclamation (therefore anything that is not in conformity with this proclamation, or the decision of any conference, is not binding at all), will be deemed to have been done or taken under this proclamation as if it was in force at the time such things were done or such steps were taken.

 

This is the proclamation which states the terms of reference so to speak of this Constituent Assembly. It is quite clear from this proclamation that the function of this Constituent Assembly is to make a constitution for Kashmir. It could not make a constitution for defence, external affairs or communications, or do anything against the fundamental rights of the Indian Constitution, because it had accepted accession by that time.

 

Now we turn to the document which is the Constitution adopted by the Constituent Assembly and look at what it says. The burden of the argument here is that this Constituent Assembly is going to create a new relationship, and my answer is, in terms of international law: the actions of a Constituent Assembly are not creative, they are merely declaratory, they do not make anything new. What does it say? "We, the people of the State of Jammu and Kashmir, having solemnly resolved, in pursuance of the accession of this State to India"-if anything is wrong, it is the accession that is wrong not the Constituent Assembly; the relationship with India was not brought about by the Constituent Assembly, it was brought about by the accession-, "which took place on the twenty-sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves: justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among us all fraternity assuring the dignity of the individual and the unity of the Nation;

 

"In our Constituent Assembly this seventeenth day of November, 1956, do hereby adopt, enact and give to ourselves this Constitution."

 

So if there was a date, that was 17 November 1956. Secondly, this Constitution creates nothing. It is in pursuance of the accession. If the relationship of Kashmir is not acceptable as it is not-to Pakistan, then the thing to quarrel with, so far as the Constitution is concerned, is the instrument of accession and the Government of India. The Constituent Assembly could do nothing; it was done in pursuance of the accession. In other words, this is the act of a sub sovereign body. This Constitution is for the internal government of a constituent State where an enormous amount of social reform is taking place, where land reform has resulted in the abolition of the old form of landlordism and where no one can hold more than twenty-three acres of land, where education has spread. The people there want to arrange all their economic affairs.

 

Furthermore, I want to drawn the Council's attention to part I of the Constitution, which states, in section 1, paragraph

"(2) This section and sections 2, 3, 4, 5, 6, 7, 8 and 158 shall come into force at once"-that is to say when this Constitution is put in draft-, "and the remaining provisions of this Constitution shall come into force on the twenty-sixth day of January, 1957…

 

" Now what are the reserved clauses ? I have mentioned sections 2, 3, 4 and 5. Sections 3, 4 and 5 read:

 

"3. The State of Jammu and Kashmir is and shall be an integral part of the Union of India."-That provision came into force in November.

 

"4. The territory of the State shall comprise all the territories which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State.

 

"5. The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India."

 

All those provisions which relate to federation matters, to matters of the relationship between the State and the federation, are matters of past history.

 

In this connexion, the Presidential Order of 1954 is important. That is part of our Constitution. It is not as though the 26th were a zero hour. As a matter of fact, the Security Council is in a somewhat difficult position. Actually nothing will happen on 26 January except, in all probability, before midnight of the 25th the Constituent Assembly will dissolve itself.

 

Can the Security Council tell the members of the Constituent Assembly that they should not dissolve the Assembly ? The Security Council has been asked to put itself in a position where its actions would have no meaning in this connection. If there were any issue, that issue should be in regard to accession. Is Kashmir a part of India ? There I think the Security Council is tied up by the findings of the Commission; it is tied up with constitutional law and practice; it is tied up with the law of federations and, what is more, it is tied up with the principles of the Charter of the United Nations. The Security Council, of course, in its profound wisdom may do what it likes. I now speak from memory, which is not always very good, but the Foreign Minister of Pakistan either said or suggested that there should be some restraining action in the character of an injunction. Members know that an injunction is an equitable process, a process arising from equity. And what invader can ask for equity? Therefore, that question does not arise.

 

I want to submit, therefore, that the whole of this crisis atmosphere which has been created about 26 January is just unreal. The 26 of January with us, as with Mr. Walker in Australia, marks the foundation of our Constitution. It is India's national day. Therefore, the State thought it fit to finish its municipal constitution on that day. Its conduct is municipal -it is dealing with its legislature, how many members of Parliament there should be, what to do with the land laws, what taxes they should raise and are competent to raise in connexion with the Federation of India, what the powers of the Speaker of the House or the Advocate-General might be these are the matters contained in this Constitution. A great many of them are already in operation. The Constituent Assembly in Kashmir; as was the case in India, sits both as a Parliament and as a Constituent Assembly. When it sits as a Constituent Assembly it is presided over by its chairman. When the chairman leaves the chair and the speaker presides, it becomes a Parliament. The same body functions in two different ways. Whenever the Constituent Assembly completes consideration of a particular measure which is necessary for the welfare of the people, the Parliament enacts it. It is part of what has already been done and there is no crisis of zero hour, there is no action from which restraint can be exercised. The only thing that could be restrained would be to undo the act of accession. But the right thing for the Security Council to do, in the submission of the Government of India, would be to ask for the observance of the Charter of the United Nations and for an end to the aggression. That is the problem before the Council.

 

I have taken this out of the general scheme of the argument in order to meet the wishes of the various members of the Security Council who had intimated privately that they would like to hear about it. That is the position as regards the Constituent Assembly. I hope that the Security Council is not going to find itself in a position where it will subscribe to a decision. which is so devoid of reality, which will expose it to ridicule, which is so unconnected with the events of the day and which is contrary to the constitutional procedures of a sovereign State, of a Member State whose Constitution is presumed to be known to the United Nations in international law. What is more, there are large numbers of people who subscribe to the same kind of legal system to which we subscribe.

 

I would like, therefore, to erase from the minds of members this idea of a crisis or a zero hour or of something happening on 26 January. It is a day which is observed in every part of India in general jubilation as the day when the Constitution of India was inaugurated. It traces its origin to midnight, 26 January 1930 when, on the banks of the Ravi, the present Prime Minister, the President of the Indian National Congress, stated that all men are entitled to their freedom. Therefore, should any country oppress us, where there is a rule of that kind we shall try peacefully to terminate it. That was the declaration of independence in 1930, and this is the anniversary of that day.

 

There is nothing in this, therefore, which should attract the attention of the Security Council with regard to the Constituent Assembly process. I have taken pains to inquire about what actually is going to happen on that day. I understand that all that will happen will be a formal meeting of the Assembly in order to wind up its affairs because it no longer will have any function. Parliament may then sit the next day. This was not arranged in view of the meeting of the Security Council. It is part of its normal proceedings. It finished its functions long ago. There is no particular reason why it should do this on the 26th, except that it may thus spare the expense of having two separate celebrations, one to wind up the Constituent Assembly and another for the national day. The appointed day in this respect follows the Constitution of India. (In fact, the Australians are always competing with us in this connection with the result that we cannot get enough people to come to our functions;)

 

I have so far argued that the claims in regard to this are based, on the one hand, upon something which is extra-legal and extra-constitutional and outside the decisions of the Security Council, and I have submitted the views of the Government of India in refutation of that position. There are no considerations which are so generous in this matter, no considerations which, on their own merits, indicate that this must have been the case. To the extent that the Foreign Minister of Pakistan has quoted authority, I have proved, if my documents are correct and they are open for scrutiny to anyone that the conditions to which he referred not only did not exist but that they referred to other matters. The legal and constitutional aspect of the problem relates to the accession.

 

I would like once again to repeat that this is a matter and I quoted this position this morning-on which the Government of India has at no time made any recession. What is more, the Commission has at no time raised this point; that is to say, it is to say, it is accepted on all sides. The members were concerned with the issues of international peace and security, and that is the function of the Security Council.

 

I ask you Mr. President, to look at Chapter VI of the Charter, or even Chapter VII, if you wish and I ask where is the provision to challenge the merits of accession. The Security Council is called upon here to deal with pouring oil over troubled waters. So far we are concerned, we have not only helped to fetch the oil, but we do not trouble the waters at all. We ask the Council to restrain others from making the water muddy.

 

If those two issues are out of the way, then what remains ? What remains is aggression. That is what remains in any claim that can be made with regard to what is called a plebiscite. As regards the commitments which we have made, I am prepared to face them quite squarely, because the Government of India has a responsibility to explain its position before a world body such as the United Nations. We did not ask the Security Council at the end of five years to spend several days on this matter. Our sister State of Pakistan desired to do so and we were quite prepared to come here either in June of last year, when there were rumours about it, or at the present time. You, Mr. President, notified us about this meeting, and we are here.

 

Now, what was this commitment ? The commitment was that in various resolutions it has been said that it is the wish, that it is the desire, to refer this matter to the people of the country, and so on. I do not know whether you want me to quote this again, as I have quoted it so many times, but it is all there. No one, least of all any responsible person from India, would say that the question of plebiscites was not considered at one time under certain conditions. It is an error, if I may say so, to ask a Government to consider what it has offered and what it has considered outside the context of any circumstances. Any lawyer here would know that even in a civil matter, even in a matter between individuals inside a country, all the surrounding circumstances have to be taken into consideration. The nature of these commitments is two fold. The plebiscite, I think, has, first of all, two aspects, and one aspect has two sub-aspects.

 

One aspect is the commitment we may have made to the peoples of Kashmir, that is to say, what came out of us by our own volition in the context of the national life of India. That is represented by the communication made by Lord Mount batten to the Maharaja on 27 October 1947, which states that: "In consistence with their policy..., it is my Government's wish that... the question.., should be settled by a reference to the people." He did not say anything about a plebiscite. "Reference" might be any kind of reference: it might be a referendum; it might be plebiscite; it might be a general election; it might be a Gallup Poll; it might be anything. That was the position at that time, but let us assume that it was a plebiscite. Even he attached conditions to it: when the soil was cleared of the invader and peace and order was restored, I cannot state the authority of my distinguished colleague from Pakistan on the question of peace and order, because in one part of his statement he says there is peace and order but in another he says there is not. I think he is right, because there is peace and order in the territory we administer.

 

That was one commitment. Now I would like you to examine what it was. It is very much like an equitable doctrine, and therefore I think that one may make an analogy. Suppose that you, Mr. President, with all the wealth you possess, make a testamentary disposition to your children, willing them your property and saying that you give so much money for this and so much for that, and that at the end of it you say to your eldest son: "It is my wish that out of this money you should build a library", or something of that character. That has no force in law; it is the expression of a wish. All that binds the young man is what you have said. The expression of a wish is not binding in any equitable relations. It may be respected. We try to respect it.

 

Therefore, the first commitment, if it was a commitment, is to the people of Kashmir. No other party comes into it. Secondly, it is in consonance with the policy of the Government of India. Policies of Governments are matters which the Governments alone can decide. Thirdly, it would be effective when the soil was cleared of the invader; and, fourthly, when peaceful conditions had been restored.

 

That is why my friend and predecessor, Mr. Gopalaswami Ayyangar, when he came here, said that the garrisons of India must garrison the northern area, that the troops must be kept to prevent tribesmen coming across the frontiers. The whole of the territory comes under the sovereignty of Jammu and Kashmir, as is admitted by the Commission.

 

Therefore, that condition, even so far as we are concerned, does not exist. But we did our best. We hung this up for some time, right from 1948 till about 1952, hoping that something would happen.

 

The members of the Security Council are all of sovereign independent States given to the democratic way of life. Can the Security Council ask us that the people of Kashmir should be without franchise, without the guarantee of fundamental rights, without being able to introduce the economic legislation that is necessary for their planning, their education and things of that character? How is that to be done ? Is it to be done by command from the Government of India ? That is not how our country is governed. These provisions are made by the Constituent Assembly for that reason. Therefore, while it was not possible for us to do it in one way, we did it in another. way.

 

So in Kashmir there is a legislature, a Constituent Assembly that functions. In that parliament there is an opposition, small as it is. In 1952 there were fifteen newspapers and journals in Kashmir, in a very small area where the majority of people are not literate; today there are forty-eight. What is more, as I shall point out later, in the last two or three years more than 500 primary schools have come into this area. So it can be seen that the Government of Kashmir is advancing all State matters in this way. Therefore, to the extent that the wishes of the people could be consulted, we did so.

 

The Foreign Minister of Pakistan also made a reference, not very complimentary to us, to the election of this Constituent Assembly. I am prepared to face this issue also. The proclamation asked for a universal franchise, secret ballots, and so on. The Constituent Assembly elections are announced; the electoral rolls are prepared; the electoral constituencies are delimited. All the arrangements were made. The candidates come forward. A fact that has not been mentioned is that the opposition candidates who afterwards withdraw did not come from the people who are either Moslems or those who wanted to go Pakistan or were suspected of wanting to go to Pakistan; they came from the orthodox Rajput Hindu sections of the community who were against India for its being a secular State. We did not stop them, but they realized that in this large country, where there is a big nationalist movement, they did not have a chance. Having filed their nominations, and all arrangements having been made before the election dates, they withdrew their candidacy.

 

According to our election laws, in common with the election laws of the United Kingdom, Australia, and, I believe, other countries, each candidate has to deposit a certain amount of money, and if he does not poll one-tenth of the votes he forfeits the deposit. What is more, he looks very ridiculous if he pulls a microscopic number of votes. These people, having used the elections for propaganda purposes, withdrew their candidacies. They were not forced to withdraw or anything of that character. The result was that the others were returned unopposed. There are many unopposed elections of this type. (Whilst the case is not an exact parallel, I would ask my colleague from Pakistan to look at the elections in India in 1937. Then a national movement of that character, in the context of the first election, swept everything before it.) The test of this is in the municipal elections. Where there is no forfeiture of deposits there is no obligation of withdrawal. There are many elections of municipalities and local bodies in Kashmir, and in all these elections the same party has come out on top. Therefore, the idea that there was a one-party state, or a kind of election to order, is entirely inconsistent with what goes on in India.

 

With great respect to the Security Council, I would submit that when a country has the largest democratic electorate in the world, when it has a Constitution guaranteeing the fundamental rights, when every man and woman in it may vote and, what is more, when 200 million people will go to the polls in two months in that country, I think that to speak of such a country as stifling elections is a charge that cannot pass muster. I shall not say anything more than that.

 

You cannot compel people to be opposed. If there are unopposed returns, it does not mean that the system is not functioning. The Constituent Assembly does not sit in secret. The World Press is there. Kashmir is the centre of the World's visitors. Last summer we had 62,000 people in Kashmir as visitors, and 9,000 of them were foreigners, and the majority Americans. And they did not stick to the towns. They went around all over. Therefore, any suggestion that this Constituent Assembly was an arranged pocket affair is very much of a mistake. What is more, in that Constituent Assembly, as regards the very men, whose names were referred to by the Foreign Minister of Pakistan as now having fallen from favour, and who therefore were in prison, when I go into the facts, the Foreign Minister will probably be pleased to withdraw some of these names. But at any rate that is another matter. However, what I say is this: that the candidates who were elected are people who have been participants in the national movement. for a very long time.

 

For the convenience of the Council I have submitted the statement made by Sheikh Abdullah to the Jammu and Kashmir Constituent Assembly [S/PV. 762/Add. 1, annex VI]. It is an extremely interesting document and we do not make any apologies for submitting it. Sheikh Abdullah is in detention. He is in detention under the law of Kashmir. I will come to that in a moment, before I finish the whole submission.

 

In this address to the Constituent Assembly he has put to them the pros and cons of accession. That does not bind us. That is the internal matter of the Kashmiris, because the accession is bound, as I said, by the law. But he, as an internal Kashmir leader, can tell the people what is good and what is bad for them; and he has said what are the advantages, what are the disadvantages, what is the case for remaining as an independent country and how long they would remain independent, and he has also stated some very lucid facts with regard to the invasion and the so-called liberation of Kashmir by the invaders. Therefore, I think that whatever may be the communications that now come, it is best to read the case that was presented to the Constituent Assembly, because that shows the opportunity to discuss the pros and cons of it.

 

The Constituent Assembly did not do its work in one day. In this Constituent Assembly members spoke about each of these various aspects, on what their State should have, more or less, for its defence, its industries and everything else. Therefore, to suggest that this Constituent Assembly was some kind of a timetable affair is a misnomer. Thus, so far as we are concerned,

on the commitments to the people of Kashmir and the plebiscite, on that leg of this argument, we have discharged our obligations. Where we have not been able to discharge our obligations so far as the form goes, if that is considered necessary, we have been impeded by acts which are beyond our control, namely, invasion, unsettlement, occupation and the division of Kashmir by force of arms.

 

Sheikh Abdullah said:

 

"As a realist I am conscious that nothing is all black or all white, and there are many facets to each of the propositions before us. I shall first speak on the merits and demerits of the State's accession to India. In the final analysis, as I understand it, it is the kinship of ideals which determines the strength of ties between two States. The Indian National Congress has consistently supported the cause of the State's peoples' freedom. The autocratic rule of the Princes has been done away with and representative governments have been entrusted with the administration. Steps towards democratization have been taken and these have raised the people's standard of living, brought about much-needed social reconstruction, and, above all, built up their very independence of spirit. Naturally, if we accede to India there is no danger of a revival of feudalism and autocracy. Moreover, during the last four years, the Government of India has never tried to interfere in our internal autonomy."-We were not permitted to do so by our Constitution-"This experience has strengthened our confidence in them as a democratic State." This is Sheikh Abdullah speaking.

 

"The real character of a State is revealed in its Constitution. The Indian Constitution has been set before the country. the goal of secular democracy based upon justice, freedom and equality for all, without distinction. This is the bedrock of modern democracy. This should meet the argument that the Muslims of Kashmir cannot have security in India, where the large majority of the population are Hindus, Any unnatural cleavage between religious groups is the legacy of Imperialism, and no modern State can afford to encourage artificial divisions if it is to achieve progress and prosperity. The Indian Constitution has amply and finally repudiated the concept of a religious State, which is a throwback to medievalism, by guarantee. ing the equality of rights of all citizens irrespective of their religion, colour, caste and class.

 

"The national movement in our State naturally gravitates towards these principles of secular democracy. The people here will never accept a principle which seeks to favour the interests of one religion or social group against another. This affinity in political principles, as well as in past association, and our common path of suffering in the cause of freedom, must be weighed properly while deciding the future of the State.

 

"We are also intimately concerned with the economic well being of the people of this State. As I said before while referring to constitution-building, political ideals are often meaningless unless linked with economic plans... As you know and as I have detailed before, we have been able to put through our 'land to the tiller' legislation"-and he goes on to talk about legislation that has taken place. Then he continues as follows:

 

"In the second place, our economic welfare is bound up with our arts and crafts. The traditional markets for these precious goods, for which we are justly known all over the world, have been centred in India."-That is, their economic life is tied up with ours.-"The volume of our trade, in spite of the dislocation of the last few years, shows this. Industry is also highly important to us. Potentially we are rich in minerals, and in the raw materials of industry; we need help to develop our resources. India, being more highly industrialized than Pakistan, can give us equipment, technical services and materials. She can help us too in marketing... It is around the efficient supply of such basic necessities that the standard of living of the man-in-the-street depends."

 

Then he goes on to talk about the disadvantages:

 

"To begin with, although the land frontiers of India and Kashmir are contiguous and an all-weather road link dependable as the one we have with Pakistan does not exist."-But now it does; at the time he spoke it did not "This must necessarily hamper trade and commerce to some extent, particularly during the showy winter months. But we have studied this question and with improvements in modern engineering. If the State wishes to remain with India, the establishment of an all-weather stable system of communication is both feasible and easy. Similarly, the use of the State rivers as a means of timber transport is impossible if we turn to India, except in Jammu where the river Chenab still carries logs to the plains."-Their timber trade is with Pakistan.-"In reply to this argument, it may be pointed out that accession to India will open up possibilities of utilizing our forest wealth for industrial purposes and that, instead of lumber, finished goods, which will provide work for our carpenters and labourers, can be exported to India where there is a ready market for them. Indeed in the presence of our fleets of timber-carrying trucks, river transport is a crude system which inflicts a loss of some 20 to 35 per cent in transit.

 

"Still another factor has to be taken into consideration. Certain tendencies have been asserting themselves in India. which may in the future convert it into a religious State wherein the interests of Muslims will be jeopardized." He has put in every argument.-"This would happen if a communal organization had a dominant hand in the government, and the Congress ideals of the equality of all communities were made to give way to religious intolerance. The continued accession of Kashmir to India should, however, help in defeating this tendency. From my experience of the last four years, it is my considered judgement that the presence of Kashmir in the Union of India has been the major factor in stabilizing relations between the Hindus and Muslims of India. Gandhiji was not wrong when he uttered words before his death which paraph

rase: "I lift up my eyes unto the hills, from whence cometh my help."

 

"As I have said before, we must consider the question of accession with an open mind, and not let our personal prejudices stand in the way of a balanced judgement. I will now invite you to evaluate the alternative of accession to Pakistan,"

 

Now he has dealt with India. He goes on :

 

"The most powerful argument which can be advanced in her favour is that Pakistan is a Muslim State, and, a big majority of our people being Muslims, the State must accede to Pakistan. This claim of being a Muslim State is of course only a camouflage. It is a screen to dupe the common man, so that he may not see clearly that Pakistan is a feudal State in which a clique is trying by these methods to maintain itself in power."-I am only quoting Sheikh Abdullah. He goes on :

 

"In addition to this, the appeal to religion constitutes a sentimental and a wrong approach to the question. Sentiment has its own place in life, but often it leads to irra tional action. Some argue, as a supposedly natural corollary to this, that on our accession to Pakistan our annihilation or survival depends. Facts have disproved this. Right-thinking men would point out that Pakistan is not an organic unity of all the Muslims in this sub-continent. It has, on the contrary, caused the dispersion of the Indian Muslims for whose benefit it was claimed to have been created. There are two Pakistans at least a thousand miles apart from each other. The total population of Western Pakistan, which is contiguous to our State, is hardly 25 million"-I was wrong; it is less than I said, "while the total number of Muslims resident in India is as many as 40 million. As one Muslim is as good as another, the Kashmiri Muslims, if they are worried by such considera tions, should choose the 40 millions living in India.

 

"Looking at the matter too from a more modern political angle, religious affinities alone do not and should not normally determine the political alliances of States. We do not find a Christian bloc, a Buddhist bloc, or even a Muslim bloc, about which there is so much talk nowadays in Pakistan. These days economic interests and a community of political ideals more appropriately influence the policies of States.

 

"We have another important factor to consider, if the State decides to make this the predominant consideration. What will be the fate of the one million non-Muslims now in our State ?"-Out of the 4 million population of Kashmir in 1941, more than one million were non Muslims, and a great many of these were Buddhists of Tibetan race.-"As things stand at present, there is no place for them in Pakistan. Any solution which will result. in the displacement or the total subjugation of such a large number of people will not be just or fair..."

 

I will leave this now and come back to the other course he has pointed out. I do not want to wear the Council. The third course which is suggested is: "Why do they not remain independent ?"-And I am reading this in order to show that it is not as though these people were jockeyed into some position. They had all this before them.

 

"The third course open to us still has to be discussed. We have to consider the alternative of making ourselves an "Eastern Switzerland '', of keeping aloof from both States but having friendly relations with them. This might seem attractive in that it would appear to pave the way out of the present deadlock. To us as a tourist country it would also have obvious advantages. But in considering independence we must not ignore practical considerations,

 

"Firstly, it is not easy to protect our sovereignty and independence in a small country which has not the sufficient strength to defend itself on our long and difficult frontiers bordering on many countries. "Secondly, we must have the good will of all our neighbours. Can we find powerful guarantors among them to pull together always in assuring us freedom from aggression 7 I would like to remind you that from 15 August to 22 October 1947 our State was independent"-this was before accession-,"and the result was that our weakness was exploited by our neighbour, with whom we had a valid standstill agreement. The State was invaded. What is the guaranty that, in future too, we may not be the victims of similar aggression ?"

 

Sheikh Abdullah has developed this point, so I have read this out at length because this idea of accession is obtained.

 

Now, therefore, what is the nature of our commitments? outside ? I have dealt with the position with regard to the Kashmir people and ourselves. The outside commitments are what arise from the mention-and I want to use this word "mention" of the word "plebiscite", and from its use as a provisional mechanism, or the idea that it can be part of a plan which is a concerted plan implementing itself in consecutive stages. That is what is being argued. First of all, I do not know whether I need to repeat the arguments. I said this this morning and this afternoon, but all of these commitments can be tied up in these two resolutions of the Commission-that are the resolutions of 13 August 1948 and 5 January 1949.

 

The resolution of 5 January 1949 is an implementing resolution. It provides the mechanism, provided the decision is made. But our commitments for a plebiscite in this matter are, first of all, conditioned by the withdrawal of Pakistan forces and nationals, by the large-scale disbandment and disarmament of the "Azad" Kashmir army, by the restoration of the unity of the country, by the return of refugees, by the restoration of law and order and by conditions of security.

 

I have not the resolution of August 1948 before me; if I had would probably make this statement longer, but I do not want to do so. So if the Council will recall to mind the various "whens" and "afters" and "it's" that were in that resolution, it will appreciate that there can be no shadow of doubt in any rational mind that what was conceived was a plan conditional upon a contingency. There are two levels of conditions, and those conditions have not been performed. What is more; in our view they are incapable of performance, so that it is therefore not possible. But whether they are incapable of performance or not, we had no commitment in this matter because the Government of India takes serious exception to the suggestion that we dishonoured our commitments. It is incumbent upon those who make these charges to prove them beyond all doubt.

 

We have made no commitments. What is the nature of commitments, Mr. President? You have long experience of international affairs. Commitments are treaties between nations; they are international obligations in the way of final acts, declarations, protocols and things of that kind. In this particular case what happened was that the Commission produced a resolution and we two agreed to it. There is no bilateral agreement between Pakistan and ourselves, technically.

 

But all the same, we are not only prepared to say, but anxious to say that whatever there is to be found in the resolutions of 13 August 1948 and 5 January 1949, with the assurances in the context of the conditions then existing. And what is more-and this is the most important part-did not the fact that violations of the guarantees and assurances given to the Security Council by the other side had taken place before the agreement, a fact which was concealed from the Council, mean that therefore, in equity, that agreement was vitiated in its foundation because it was not reached bona fide, the Pakistan Government knew in August 1948 that that was the position of the 'Azad' forces, as has been pointed out by the Commission. Even at the risk of tiring the Council's patience I have quoted from the reports of the Commission instead of giving them in indirect narration because I did not want to expose myself to an inaccurate citation.

 

Therefore, those are our commitments. What is their position in the context of the Charter ? These resolutions, first of all, are not Security Council resolutions; they are, to the extent that they have been endorsed by the Security Council. What do they say? They are by way of recommendations which can be implemented only if the two sides cooperate, if the two sides agree. Our side was willing to agree. It has been willing to agree, and it has tried for years to agree. But we have always said that the Government of India will never agree to the interference of Pakistan in the sovereign affairs of the State, and that the plebiscite is not Pakistan's business but has to be taken by the Administrator who has to decide its terms. a Plebiscite And in any case none of these things can take place so long as the territory more than 42,000 square miles out of 84,000 is under occupation.

 

I have not referred to the story of the occupation of the Northern Areas. I would like to do so during the next instalment of this statement, and I have to ask all those concerned to forgive references to individuals and nationalities which are of a character which is not intended to hurt them at all since they are the facts of history.

 

Thus we have no commitments in this way. Our commitment is contingent upon the performance of part II, and even then-even if part II is performed-what is the promise that we have made? The promise we have made is to confer with the other side. But conferring with the other side does not necessarily mean that we have to do what anybody else says, or that the other side has to do what anybody else says. That is all the commitment in part III of the resolution of 13 August 1948. People are likely to be misled by the enormous amount of wording there is in the resolution of 5 January 1949, but it is only a supplementary resolution. It is an implementing resolution of the minutiae and mechanism of election. Therefore, there are no commitments that can be laid at the door of India with regard to the carrying out of a plebiscite.

 

The next point is whether we have, by our action, made non-performance of part II possible. I think that the Security Council, and every member of it and our friends in Pakistan, would be entitled to point a finger of rebuke and scorn at us if it was our action that had prevented part II from being implemented, because it is not equitable to say: I will do III if II comes about, and I go out and make IT impossible. But the whole history which I have unfolded is not like that. The personal conversations of the Prime Minister, who is the head of the Government of India, the aide-memoire and correspondence with the Commission are all recorded. It is not as though it was done at some low departmental level-although that would not bind the Government of India even then. It has been carefully gone into at every point.

 

And then we come to the interpretation of agreements. For this purpose, if the President so desires, we could take a hypothetical position. First of all, I said that there was no agreement on the level of a treaty. There is no international agreement of the type that is a protocol or a final declaration of a conference. What there is, is an agreement on a plan of settlement, which is a very different thing. Today it is us; tomorrow it may be someone else in the same position. If one cannot come before the Security Council and discuss with its representatives tentative plans, how can one carry on negotiations? All the agreements, all the meeting of minds, all the differences between minds constitute a plan that is contingent upon another contingency.

 

Now, for the purpose of argument, my Government will be prepared, not to admit that there is anything more than that, but to examine this problem as though it were a treaty. And I want to emphasize this because we have suffered in the past by making hypothetical propositions. Supposing we assume-which we cannot assume-that whatever we have said in the way of a treaty is a plebiscite; what are the obligations under international law with regard to treaties? I am not going to quote any law because this is not a juridical body but there are principles of international behaviour.

 

There are some conditions which are laid down for the interpretation of treaties. They are here in Oppenheim's International Law. If anyone is apprehensive that I might be unfair in quoting only parts of it, I am prepared to read the whole, but it will take a long time. I shall quote the parts which I think are relevant, and if there is any doubt, I will read the remainder.

 

"It is taken for granted that the contracting parties intend something reasonable"-something adequate to the purpose of the treaty-"and something not inconsistent with generally recognized principles of international law,"

 

I say that wanting the Security Council is being asked to believe that we have committed ourselves to is not anything reasonable. That is to say, to plunge a country that has got law and order institutions into a whole mixture of foreign intervention that is already on its frontier, to make this gateway of invasion into another way of interference, another way. of the violation of sovereignty, is not reasonable. It is not reasonable to assume that there could be freedom of the poll in a Pakistan-occupied area when there are-as I will tell the Council later how many divisions of the Pakistan army within five and thirty miles of its border, when there are forty-five battalions of "Azad'' forces ready to line up, with modern. troops and equipment. We have some idea of this equipment; we do not live far away. There are airstrips built in these places-again I am going to give the particulars. So far as we are concerned it is not a military secret, although it may be a secret to others. But there it is. When there is an armed fortress and, what is more, when there all this appeal to hatred and invasion, and language such as that used by the Foreign Minister himself-which, at an appropriate stage, I propose to quote-it is not reasonable to expect that a country will un settle things that are settled by Latin American friends will understand that we must let things alone is this case.

 

It is not reasonable now. Then it must be adequate. Would this be adequate for this purpose ? It was Sir Owen Dixon who said that no plebiscite would ever be adequate because, supposing the plebiscite by majority decided for India, he said, there would still be trouble; if they decided for Pakistan, there would be even more trouble. And, what is more, how would the adequacy of this plebiscite be justified in the present conditions ?

 

Oppenheim says: It must "not [be] inconsistent with generally recognized principles of international law"-and that is the main sheet-anchor of our position. For the Security Council to take a step in this matter today which does not take our primary position, that is our territory has been invaded into account would be inconsistent. It does not matter whether there are flaws in our claim. Kashmir was never a part of Pakistan. Kashmir never acceded to Pakistan. Kashmir was in no way historically connected with the present Pakistan, and therefore, its entry into that territory, irrespective of our claims: is an act of invasion.

 

Assume for the moment, for argument, what is not a fact that our claims have flaws in them, either legal, political or moral, that would not justify an act which is a clear violation of international law, as I shall point out in the findings of the United Nations Commission. An act of taking troops across our frontiers, being responsible for the aiding of ravage and rapine, is not in accordance with recognized principles of international law. I will go further and say that many invasions have taken place since the Security Council asked that there should not be such invasions; and what is more, there has been a withholding of information from the Security Council. This is not in accordance with international law.

 

International law is based upon the principle of equity, of fair play and of international morality, and no party can come before this body and ask for equity unless it is prepared to deal with it. The rule of equity in civil law is: those who want equity must come with clean hands.

 

Oppenheim says further :

 

"If, therefore, the meaning of a provision is ambiguous, the reasonable meaning is to be preferred to the unreasonable, the more reasonable, to the less reasonable."

 

Now, we have so many English pundits around here. In other words, what does the resolution of 13 August 1948 mean? The reasonable meaning is stage A, then stage B, then consideration of stage C. That is the reasonable meaning, and an unreasonable meaning cannot be read into that document. The purpose of the treaty is to get a settlement of Kashmir that is the consistent meaning, not the meaning that is inconsistent with the recognized principles of international law. That is the first set of conditions in the interpreting of a treaty. In the second place, the whole of a treaty must be taken into consideration if the meaning of any one of its stipulations is doubtful, not only the wording of the treaty, but also the purposes, the motives, and the conditions prevailing at the time.

 

There are two things here to be taken into account. Firstly, "the motives that led to its conclusion". The representatives may recall that earlier this afternoon I referred to the anxiety of the Commission to get a cease-fire. I did not do this merely to draw attention to the fact that it had some relationship with this. The motive in getting this agreement was to stop the fighting. Therefore, to talk now of something which would lead to greater violence is not in conformity with this. The second is, "the conditions prevailing at the time". I shall deal with that at length later.

 

Then Oppenheim stated:

 

"The principle in dubio mitius must be applied in interpreting treaties.," That, again, is important-"If, therefore, the meaning of a term is ambiguous, that meaning is to be preferred which is less onerous for the party assuming an obligation"-in this case, we are asked to be the parties who are to assume the obligat, on, and, therefore, if there is an ambiguity, the meaning that is less onerous to us must be taken-"or which interferes less with the territorial and personal supremacy of a party" what could be more on all-fours with the present case ?-"or involves less general restrictions upon the parties,"

 

It is also stated:

 

"If two meanings of a provision are admissible according to the text of a treaty, such meaning is to prevail as the party proposing the stipulation knew at the time the meaning preferred by the party accepting it."

 

That is the case here, because when we accepted the two resolutions we accepted the stipulations and the meanings of the letters of assurance and the aide memoire. These were known to the other side. Therefore, that meaning is to be preferred. There are a large number of other conditions, but these are sufficient for my purposes.

 

It is also stated that:

 

"It is a well-established rule in the practice of international tribunals that so-called preparatory work (travaux preparatoires)-i.e. the record of the negotiations preceding the conclusions of a treaty, the minutes of the plenary meetings and of committees of the Conference which adopted a convention, the successive drafts of a treaty."-That is what I done, I have gone into the minutes of the Commission, into the letters, and so on-The Permanent Court of International Justice... has frequently affirmed the usefulness of preparatory work."

 

Therefore, even if there were, and there is not, a high level treaty as between our two countries, or an agreement of the nature of a treaty obligation, either registered with the United Nations or entered into with the Secretary-General, it would still be bound by these commitments. Therefore, we say that one of our commitments in this matter is accession. There we have a commitment. We have accepted the obligations which are laid on us under our Constitution. We have not only accepted a legal obligation, but also political and moral obligations, because to throw accession away would be to throw the whole of India into chaos and we would open the door to dismemberment, and our unity and national sovereignty is something which we prize. Therefore, under the circumstances we are not prepared to permit a challenge to the validity of this accession, That is our commitment, and on that commitment we stand.

 

We have another commitment, to which I shall refer at length later. That is the cease-fire commitment, and we shall honour it. But we have no other commitments.

 

The Minister for Foreign Affairs of Pakistan said that in regard to this Kashmir matter he had no other international obligations than those that are to be found in the resolutions [761st meeting, para. 115]. I agree with that, but to a limited extent in the sense that we have to interpret this agreement in the terms of these two resolutions to which I have referred, but if it means that the international obligations of the Charter of the United Nations are not binding, then I will join the issue with him. I am prepared to confirm that I subscribe to the view that in the discussion of any procedure, of any particular decision, of any agreement reached, these resolutions are what are binding in the circumstances I have submitted to you. But it would be wrong, so far as we are concerned, for a Member State to argue that there are no other international commitments. The Charter is a commitment for every State, and when the time comes to sum up these observations at the conclusion of these meetings of the Security Council, we shall fall back upon our bounden duty to ask all of you to address yourselves to the provisions of the Charter. Therefore, no Member State, in our submission, may say there are no other international obligations. I feel sure that that is not the meaning of the statement

 

made by my colleague, but I wish to be clear on this point. Mr. NOON (Pakistan): I am sorry, but it is a misinterpretation of my statement.

 

The PRESIDENT: You have no right to interrupt. Mr. Krishna MENON (India): I will read out the quotation. I thought that by not doing so before I could save time, but it will be seen that my slow procedure is the quickest in the long run. The representative of Pakistan said. "Pakistan is equally convinced that the international agreement for a plebiscite is one indivisible whole." We agree-"No party to the dispute has the right to accept it in part. If India, a party to the dispute"-which does not exist-"makes an attempt to freeze the situation as it exists, Pakistan would consider it as a repudiation of the international agreement... I want to make it clear that Pakistan recognizes no international obligations with regard to the State of Jammu and Kashmir except those it has voluntarily accepted together with the Government of India in the resolutions of the United Nations Commission for India and Pakistan dated 13 August 1948 and 5 January 1949." (761 st meeting, para. 115).

 

I should not have referred to this without quoting it, but I submit that, in my own reading of this, it does not exclude our commitments under the Charter. It simply means that there are no other agreements of the type of these resolutions or plans of that character outside these two resolutions. I was trying, in my statement, to elicit information on this point in the reply of my colleague. So far as the Government of India is concerned, for the moment we assume that this means that, as far as commitments of this kind are concerned, these are the only two resolutions. That is also our position.