24011957 Text of the Speech made by Mr. Krishna Menon (India) in the Security Council meeting No, 765 held on 24 January 1957.

24011957 Text of the Speech made by Mr. Krishna Menon (India) in the Security Council meeting No, 765 held on 24 January 1957.

 

In conformity with previous practice of the representatives of my Government before this Council, I ask for permission, as I am entitled to do under the Charter, to offer my observations on the present state of proceedings before this Council.

 

I would like to preface my remarks by saying that one would consider that the purpose of speaking in an assembly of this kind is twofold. Sometimes the two purposes work together, sometimes one alone is possible. One purpose is to try and persuade your listeners in order that they might come to a judgement that is in conformity with the facts as one sees them. The other is for the purpose of registering a position so that at least at some future time, when considerations of a different character appear, the position will have been stated for the record. In the past my Government has not paid adequate attention to this because, as has been repeatedly said, our overwhelming consideration at that time was, without being punctilious, to find a settlement. Obviously, in this hard world that kind of thing has its penalties..

 

So far as the present situation is concerned, we have no right to pronounce on the draft resolution before the Council. It is the Council's resolution. It does not bind us. In fact, I suppose some day it will be communicated to the Government of India, which will in turn, in the normal course of business, communicate it to the Government of Kashmir and to the newspapers in India, because it is not a resolution in which we have participated. The Security Council invited us to present our views, and in the normal course of business one would have thought that a resolution on this subject would take into account the presentation that has to be made by the parties which are called before the Security Council. That was the intention of the Charter.

 

I have no desire to raise unnecessary controversies, but the first draft of the draft resolution was in my hands before I had not only not finished speaking, but in the forenoon of yesterday. The alterations that have been made are alterations which are more convenient and suitable to the other side. Therefore, any suggestion that I had stated my case in the Constituent Assembly and all they wanted to know had been made known, has not been borne out by facts.

 

I will not refer to private discussions, but I have here documents that have been circulated, and if other people can have them, I can have them. What did I say? My friend. Mr. Cabot Lodge expressed his appreciation of my having changed the arrangements of the meeting. What did I say? I said the following:

 

"I must confess that the atmosphere of crisis 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" [763rd meeting, para. 79]-in order to show that there was not any kind of crisis or anything of that kind

 

Then I said the following at the end of the meeting, which the Council may well remember:

 

"I do not think I will be able to finish my statement in another hour. It will probably take two to two and a half hours, even if I condense everything. The whole of the argument in this case remains." [Ibid., para. 205].

 

No one can possibly comfort his conscience in this matter by thinking that the first paragraph of this resolution represents the facts when it says:

 

"Having heard statements from representatives of the Governments of India and Pakistan concerning the dispute over the State of Jammu and Kashmir". While we are not in a position, nor do we desire, to move any amendments, alterations or anything of that kind, I would not want it to be thought in my country that I have not pointed out when this resolution was hatched and when it came out.

 

Before I go further, I would also like to address the objections of my Government to certain statements in the Australian submission before the Security Council. I have already elaborated them in my previous statements and I do not wish to take the time of the Council any further with them. This also applies to one other statement made in the Council: we are unable to agree to the two last sentences of the penultimate paragraph of the statement made by the representative of the United States [para. 50 above]. Those are specific matters to which I want to draw attention.

 

It has been put out that we are only reaffirming something and therefore are not doing anything new. With all respect, I would like to ask: since the whole burden of this argument was the reaffirmation, was a new decision-ignoring all those facts which had been presented during the eight hours-necessary? If you come to a decision then you must reaffirm, you have decided on merits.

 

Therefore, while the Security Council, or those who sponsored this resolution or support it, can take that view, I submit that I am unable to take it. What is more, I have the responsibility to let the people and Government of India know that I have said in this Council that this resolution only takes care to remind us of those resolutions of the Security Council which we have, in express terms, declined to accept, that is, the resolutions of 21 April 1948 onward-I am not now referring to the resolutions of the Commission. Secondly, the principle embodied in these resolutions, whether it covers all the detail that goes into these resolutions or not, also is somewhat of a perplexing problem to us. The representative of Australia told us that he was still in doubt about so many matters, but that has not prevented him from coming to a conclusion. In this connexion, we are also likely to enquire in India whether it is necessary to reaffirm what, by implication in these speeches in our opinion, erroneously-is regarded as an affirmed principles,

 

There are people who are likely to ask: has the Security Council no concern about the other principles it affirmed-that there should be no aggressions, there should be no changing of the conditions that existed in the country, of annexations, of affiliations? The Security Council appears to be willing to sit long hours, even at night, in order to register its objections to what may appear in a Constitution, on the grounds that it changes the existing status. But my people would enquire : why not at least equal anxiety in regard to other matters that change the status ? Why was not the Security Council concerned about the incorporation of a part of Kashmir into Pakistan by the Pakistan Constitution? Why is the Security Council not equally concerned about the annexation of these territories, about the militarization of them, about the threats. of war made in this room?

 

I say all this not because you will change the resolution, but because it was quite obvious that long before you had even called upon me to speak, on 16 January, the representatives of the United Kingdom and Australia had expressed their views as to what they would do. I referred to that in my opening statement yesterday.

 

These situations do produce some strange spectacles, on which I am entitled to comment because they are political matters. Here we have the representative of Her Britannic Majesty challenging an act of a legislature which has received the royal assent. This is a very unusual procedure. And we are acting in terms of an act of the legislature which received at that time-fortunately for us-the royal assent, and not after the termination of monarchy in India. Therefore, in doing what is being done, those people who are connected with those matters are not only challenging us but challenging their common law-because they have no constitutional law-their statutes, their tradition, and the power of the royal seal on a bill. Now we go further and look at what the Commission says and I am not going to make a long statement. The Commission said (and I did not say this)-but why the resolution passed eight years ago should have such significance, while the investigations a of Commission appointed by the Council and reported seriously would not pass muster, that also would be incomprehensible to the peoples of India and that world opinion which is uncommitted in this issue to one side or the other this is what the Commission said in paragraph 249 of its third report :

 

"In essence, the problem of the withdrawals lies in the fact that the sequence for the demilitarization of State, as contained in the Commission's resolutions of 13 August 1948 and 5 January 1949, is not adequate to solve the present situation. The situation in the State has changed; the resolutions remain unchanged."

 

And you gentlemen today have thrown to the winds the caution that the situation in the State has changed; the resolutions remain unchanged. With great respect. I say you go a step further and you make sure that your resolutions remain fossilized, because you reaffirm them, preserved for posterity.

 

Now I must go to the position in the second paragraph. I want to say to you again, for the purposes of the record: this paragraph lacks propriety in respect to the Head of the State of Kashmir, a member of the former ruling house. And I am again surprised that the representative of the United Kingdom should have put his name to it, because the Constituent Assembly in Kashmir did not emanate from the Jammu and Kashmir Conference The Security Council is a body of the representatives of State in the world and not of private organization. The representative of the Government of India has placed before it the constitutional document that deals with the question; then to affirm in the resolution that the Constituent Assembly proceeds from some resolution passed by however important a body it is, which has no place either in

the Constitution of India or in its constituent unit in Kashmir, is I submit, a place of impropriety. But we have no remedy, because you have the votes-I mean, the Council has the votes.

 

Therefore, I submit that this paragraph, in normal circumstances, is one that would not be passed by an assembly. charged with this amount of dignity and this amount of deference to protocol. The Head of the State of Kashmir is entitled, in any case, to consideration as the Head of that State in the normal way.

 

Reference has been made to what my predecessor, Sir Bengal Rau, said in this Council, and I should have thought that his statement was sufficient to prevent the Security. Council from repeating its previous action because, while it may be purposeless to say so-because I have said it before-it is not the Constitution of Kashmir and the Constituent Assembly of Kashmir that make Kashmir integrated, as you. call it, that makes it a part of India. It is the act of accession under the act of a legislature which received the royal assent in 1947. Therefore, this Constitution is not what makes any difference, and if the Council is not prepared to accept the statement of the Government of India in regard to this matter. about which I have spoken-that the act of the Constituent Assembly flows from accession-what the Council has to challenge is the accession; and I submit that the Security Council is not competent to do so.

 

Secondly, I desire to submit that this draft resolution refers not merely to the Kashmir Constituent Assembly. but also to the State of India, because these provisions, against which this Council is entering its caveat and proposing this interdict, are part of the Constitution of India incorporated by a Presidential Order in 1954. Therefore, this declaration by the Council now is not merely a declaration in respect of the Kashmir Constitution. The Security Council is telling India what it can have in its Constitution because if we are to follow this, surely we have to amend the Indian Constitution because

 

The Security Council has asked us to do so. I have heard a great many arguments in this building about domestic jurisdiction. I have myself on many occasions on behalf of my Government, taken the view that very few people can take shelter under domestic jurisdiction. But that the Security Council intends to give instructions about the Constitution of another country is the meaning of this declaration, for if the Constitution of Kashmir has to be interfered with, so has the Constitution of India.

 

Finally, I submit that the Constituent Assembly Act is what in law is called a declaratory act. It does not create anything; it simply affirms the existing state of affairs. And that is what Sir Benegal Rau told the Council. In fact, the Constituent Assembly of Kashmir could not bind the Union of India. If the Constituent Assembly passed some provision which was inconsistent with the Act of the Union, then that would be ultra vires, and no question of binding the Security Council by a resolution passed by a subordinate legislature, or even a national legislature, would arise.

 

I would like to read what Sir Benegal Rau said in 1951, which was six years ago, and my Government takes the view that in this case particularly, six years have changed a lot of things. At that time Sir Benegal Rau said:

 

"rn effect, therefore, the revised draft resolution continues to ignore the basic facts of the situation in Kashmir, and it includes provisions which we have all along made amply clear that we cannot accept. For a peaceful settlement of the problem it is essential that a peaceful atmosphere should be created. The continuous and intensive propaganda in Pakistan for 'jehad', and the levelling of wild and baseless charges against India, hardly provide a suitable background. Nor is the periodic re-agitation of the matter and the constant reopening of closed issues calculated to promote a peaceful settlement of the question. India desires peace above everything, peace for the world and peace with all its neighbours. But there can be no lasting peace which is not based on fairness and justice." [528th meeting, para. 22]. The only effect that this draft resolution can have, so far as our part of the world is concerned, is to re-agitate this question. It is contrary to the purpose of the Charter under which the United Nations is supposed to be a place for harmonizing conflicting interests. This merely shows the apple of discord once more. It makes no contribution to any settlement because, irrespective of any resolution, there are only two ways in which any settlement can be reached. One is imposition; and I submit that the United Nations has no power under the Charter of imposing a settlement. The other is by the agreement of the two parties. Therefore, today to record another resolution which reaffirms something that one party has rejected, reaffirms the large number of resolutions which we have rejected and which are eclipsed or absorbed by the resolutions of 13 August 1948 and 8 January 1949, is, in our submission, not calculated to promote the purposes of the United Nations or of the exercise by the Security Council of the tasks entrusted to it.

 

I have no doubt that those who submitted this draft resolution were moved by the highest motives. I have no. doubt that they believe this to be a step towards what they think is a settlement. But my Government has not merely to look at the sentiment involved in this matter; it must also look at its implications and its consequences. I therefore wish to state that our attitude towards this draft resolution is the same as our attitude towards previous resolutions.