02051962 Text of the speech made by Mr. Zafrullah Khan (Pakistan) in the Security Council meeting No. 1008 held on 2 May 1962.

02051962 Text of the speech made by Mr. Zafrullah Khan (Pakistan) in the Security Council meeting No. 1008 held on 2 May 1962.

 

With reference to what the President said concerning the change in the date and time of this meeting, certain impressions have been conveyed to me with regard to which I would beg the

indulgence of the Council to make a brief statement.

 

I have been informed from three or four quarters that it is in the minds of some, including one member of the Council, that I deliberately refused to comply with a suggestion made by the representative of India that a meeting might be held earlier so as to meet the convenience of the Defence Minister of India In this connexion, it has been said that this request was conveyed to me on Saturday morning last and that I has purposely and deliberately stalled on it and refused to agree to an earlier meeting. This is not correct. No such request or suggestion was conveyed to me on Saturday at any time, noon or afternoon.

 

I came to know that the representative of India, Ambassador01 Jha, my friend, had made efforts to get in touch. with me and had not been successful and that he had in mind making this suggestion to me. I got in touch with Mr. Jha on Monday morning shortly after I reached my office. He was not then in his office but his secretary, who spoke, said that the message would be conveyed to him and he would speak to me as soon as possible. Within a few minutes he very kindly rang me back and told me what was desired. I told him that I had had in mind at the beginning of our meeting last Friday that I would work on Saturday, Sunday and Monday up to mid-day on the remaining portion of my statement to the Security Council and that in case there was a meeting on Monday after noon, I would then be ready to make that portion of my statement; but that when it had been decided at the end of the meeting that the next meeting would be called on Thursday morning, I had told my two colleagues who were working with me on my further statement to take it easy over the weekend, and I myself had also taken a day off, and we had agreed to start working on my statement on Monday afternoon that is to say, the afternoon of the day on which Mr. Jha and I were talking; that it was therefore extremely difficult for me to be ready to speak to the Council before Thursday morning, but I would see whether I could possibly do it any earlier.

 

Later the same morning, when Mr. Jha and I met in the Secretary-General's offices to pay our humble tribute to one of the great heroes of space, Major Titov, he renewed his request. On making every possible calculation, I told him that the earliest I could be ready would be this afternoon. I can assure the members of the Council that I worked up to the last moment today, until I had to come here, leaving it to my colleagues afterwards even to collect the papers and to bring them along so that I could start my statement. I could not possibly have been ready earlier.

 

I apologize to the Defence Minister of India if any inconvenience has been occasioned to him, but I also want to assure him that I could not, in the circumstances having regard to the earlier decision of the Council that the meeting would be on Thursday morning, have been ready any earlier.

 

This afternoon, as I have already conveyed to the President, I had hoped that if the Council could be called to order punctually at 4 o'clock-though I am making no grievance on that point at all, I have no business to I could continue until, say, two hours after five o'clock, and if there was a break of a few minutes, I would finish my statement, say, around 7 o'clock -perhaps a little later, perhaps a little earlier. We are starting nearly half an hour late, but nevertheless my the intention is that I should conclude this evening, though it may be later than 7 o'clock. So that the net result should be the same as if the Council had held the first meeting this morning and the second meeting this afternoon, a suggestion which was rather emphatically made to me by the representative of India. and to which I, with great regret, could not agree.

 

I shall now proceed to resume the statement which I was in the course of making at the previous meeting when I stopped because I did not put my further papers in order at that time.

 

The main thesis on which I was engaged during the greater part of last Friday afternoon was that Pakistan and India had undertaken the obligation that the question of the accession of the State of Jammu and Kashmir to India or to Pakistan would be settled only through a free and impartial plebiscite. I had said that in this connexion various expressions had been used, all of them quite clear and leaving no doubt that that was the understanding. They were used unilaterally by India at a certain stage. Then they were used as a part of the obligation entered by the two parties. It was stated that it was the consistent policy of the Government of India that where the question of accession was in dispute between the ruler and his people it should be decided by reference to the freely expressed wishes of the people. In pursuance of that consistent policy, it was stated in Lord Mountbatten's letter to the Maharajah, which I quoted at the previous meeting, that it was the wish of the Government of India that this question should be so settled that when law and order were restored the free expression of the wishes of the people should be ascertained. The "wish" was used as expressing a wish on behalf of the Government of India, which was going to furnish aid to the Maharajah in his extremity, that he would have to co-operate in this matter because it was the consistent policy of the Government of India. Later, the expression "a promise to the Government of Pakistan" was used. It was said that this is not merely a promise to the Government of Pakistan", it is a promise "to the people of Kashmir and to the world". The word "assurance" has been used. The word "pledge" has been used. It was stated before the Security Council that on that "condition"-that is to say, that the question would be settled through a free and impartial plebiscite and on "that condition alone" the Maharajah's offer of accession was accepted. Later the expression "stipulation" was used-that we made the stipulation that it would have to be decided through a plebiscite.

 

I will this afternoon; just to conclude that portion of my submission, draw the attention of the Council to two more declarations in that respect. The first is that of the revered Prime Minister of India again, who said:

 

"Kashmir is not the property of either India or Pakistan. It belongs to the Kashmir people. When Kashmir acceded to India, we made it clear to the leaders of the Kashmir people that we would ultimately abide by the verdict of their plebiscite. If they tell us to walk out, I would have no hesitation in quitting Kashmir.

 

"We have taken the issue to the United Nations and given our word of honour for a peaceful solution. As a great nation, we cannot go back on it. We have left the question for a final solution to the people of Kashmir and we are determined to abide by their decision."

 

That quotation is taken from the Amrita Bazar Patrika, of Calcutta, dated 2 January 1952.

 

Then before the Security Council, on 7 February 1950, Sir Benegal N. Rau, speaking on behalf of India, said, in referring to the admission of representatives of Kashmir to the Indian Constituent Assembly:

 

"It is therefore clear that the admission of representatives from any particular State into the Indian Constituent Assembly did not necessarily imply accession. As I have said, Kashmir had this right to representation ever since April 1947;"-long before independence-"it acceded, tentatively, in October 1947, so that the accession came after the grant of the right and not the other way round." [463rd meeting, p. 20.]

 

Sir Benegal N. Rau was a great lawyer. He had been a judge of the Calcutta High Court and, what is more, he was a great authority on constitutional law, and his interpretation, speaking before the Security Council as the representative of India, was that Kashmir had acceded tentatively in October 1947.

 

Towards the close of my submissions on Friday I indicated that, at the next meeting of the Security Council, I would go on to comment on certain questions which had been raised. as presenting an objection to proceeding with the implementation of the resolutions of the United Nations Commission for India and Pakistan, or in order to show that the plebiscite was no longer necessary.

 

Out of these questions three connected matters of accession, sovereignty and aggression have often been put before the Security Council, and in public declarations. It sought to draw certain conclusions against progress being made with regard to the implementation of the two resolutions of the Commission which both parties accepted. In brief the argument is: The State acceded through the Maharajah to India. Therefore, the territory of the whole State became a portion of Indian territory. India has sovereignty in respect of the whole State of Kashmir. Consequently, the presence of Pakistani troops, and earlier perhaps also the tribesmen -I mean, this might be the argument constitutes aggression by Pakistan against India, and as long as that aggression is not vacated there can be no progress towards a plebiscite.

 

I have two main lines of argument in reply. The first is that an examination of the situation would show, as I submitted Friday afternoon, that though the accession estimated a de facto position, no doubt, the accession is the very question in dispute and, therefore, it cannot be accepted-and certainly Pakistan does not accept it as an accomplished legal fact or an accomplished legal reality. Consequently, the theory of sovereignty and the allegations with regard to aggression are matters in dispute; they cannot lead to legal consequences binding upon the parties.

 

My second line of argument will be that, whatever may be the merit of that part of the controversy on one side, the claim; on the other side, the denial of it-it was after the so called aggression, whether it related to the situation created by the incursion of the tribesmen in October 1947, whether it was the entry of the regular forces of Pakistan into "Azad" Kashmir in the first week of May 1948, whatever may be the situation with regard to that, it was long after these two dates that the Commission's revolutions of 13 August 1948 and 5 January 1949 were accepted by the two Governments. These matters were not decided by the Commission-it could not decide them: It had no authority to decide them-the decision had to be made through the plebiscite. But the Commission took into account India's allegations or arguments or representations on all these questions. These certainly influenced the framework of the two resolutions which the Commission presented to the parties for acceptance and which the parties eventually accepted.

 

Therefore, these questions are no more than academic questions. They do not affect, in any manner whatsoever, the binding nature of the two resolutions which were accepted by both sides in the presence of the events which had already taken place. The resolutions constitute an international obligation, binding upon both, which it is their duty to implement according to its language, its meaning and its spirit.

 

least remind the Council, India's own stand is-and it is not With regard to accession, as I shall presently show or at just a theoretical declaration, it was a deliberate statement made before the Security Council at its 264th meeting on 8 March 1948 that where there is no dispute between the ruler and the ruled, the ruler can go ahead and offer accession, on the basis of the agreement between his subjects and himself regarding which of the then two Dominions the State should accede to; however, that when there is a dispute- as undoubtedly there was in this case-the wishes of the people are to be ascertained and it is only in accordance with the wishes of the people that accession can taken place.

 

I shall quote Mr. Gopalaswami Ayyangar in the Security Council on 8 March 48:

 

"No doubt the Ruler, as the head of State, has to take action in respect of accession. When he and his people are in agreement as to the Dominion to which they should accede, he applies for accession to that Dominion. However, when he takes one view and his people take another view, the wishes of the people have to be ascertained. When so ascertained, the Ruler has to take action in accordance with the verdict of the people. That is our position." [264th meeting, p. 50.]

 

Well, according to that position, the accession has not yet taken place. Because, "when SO ascertained"-and it has not yet been ascertained-"the Ruler has to take action in accordance with the verdict of the people." There has as yet been no compliance with that procedure.

 

The Security Council already has a picture of the circumstances at the time when the form regarding accession was filled in and when the letter accompanying it was written to Lord Mountbatten. There had been an armed revolt against the Maharajah and his authority. I would very respectfully submit that the Maharajah had already forfeited the allegiance of his subjects, by putting himself at the head of his forces for the project of exterminating or seriously reducing the number of those who were likely to question his authority to accede at his own will. I cited a statement from The Times of London, I believe of 10 October 1947, that the Maharajah had put himself at the head of his own forces for this extermination project and 237,000 of his subjects had already been killed. As a reaction to the Maharajah's designs against his own subjects, and in sheer desperation, an armed revolt had started and had begun to spread and the Maharajah's forces had had to retreat from parts of the area concerned. This was before the tribal incursion took place.

 

I should like to draw the attention of the Council to a Press note issued by the Maharajah's Government as early as 12 September 1947 which said:

 

"On 24 August 1947 large and highly excited mobs collected in the west of Bagh tehsil and on 25 August disregarding all efforts to persuade them to disperse, marched onto Bagh town in the vicinity where they reached the number of some 5,000 which swelled considerably during the next two days. These mobs were armed with fire-arms of various patterns, axes, spears and other weapons."

 

So that, already in September, this revolt against the Maharajah's authority had started.

 

I wish to remind the Council of the statement Sheikh Abdullah made at Delhi on 21 October 1947-also before the tribal incursion-during the course of which he said that present trouble in Poonch was caused by the unwise policy adopted by the State. The people of Poonch, who suffered under their local ruler, had started a people's movement for redress of their grievances. It was not communal. Kashmir sent its troops and there was panic in Poonch. The population of Poonch, he explained, were ex-serviceman in the But most of the adult Indian Army with close connexions with the people in Jhelum and Rawalpindi, that is to say, the neighbouring districts of West Pakistan. They evacuated their women and children, took them from the State into Pakistan, crossed the frontier and returned with arms supplied to them by willing people.

The position then was that the Kashmir State forces were forced to withdraw in certain areas.

 

The result was that the situation at that stage-before the tribal incursion into the State-was that the Maharajah's people had risen against him, his forces had had to retreat from certain parts of the State, and, after the tribal incursion, the Maharajah had to leave the capital and arrived at Jammu.

 

The Maharajah left Srinagar, the capital, on 25 October. Then, on 26 October, while he was at Jammu, Mr. V. P. Menon, the then Political Secretary of the Government of India who was in charge of these affairs, brought him the assurance. from Delhi that India would come to his rescue-these are the words-provided he would sign the form for accession, which the Maharajah did.

 

The Maharajah's accompanying letter of 26th October contains a very interesting statement. He said in that letter, which, of course, was addressed to Lord Mountbatten, Governor-General of India :

 

"I have to inform Your Excellency that a grave emergency has arisen in my State and request the immediate assistance of your Government. As Your Excellency is aware, the State of Jammu and Kashmir has not acceded to either the Dominion of India or Pakistan. Geographically, my State is contiguous with both of them. Besides, my State has a common boundary with the Union of Soviet Socialist Republics and with China. In their external relations, the Dominions of India and Pakistan cannot ignore this fact

 

"With the conditions obtaining at present in my State and the great emergency of the situation as it exists, I have no option but to ask for help from the Indian Dominion. Naturally they cannot send the help asked for by me without my State acceding to the Dominion of India. I have accordingly decided to do so, and I attach the instrument of accession for acceptance by your Government. The other alternative is to leave my State and the people to freebooters. On this basis no civilized Government can exist or be maintained. This alternative I will never allow to happen so long as I am the ruler of the State and I have life to defend my country.

 

"I may also inform Your Excellency's Government that it is my intention at once to set up an interim government. and to ask Sheikh Abdullah to carry the responsibilities in this emergency with my Prime Minister.

 

"If my State is to be saved, immediate assistance must be available at Srinagar. Mr. V.P. Menon is fully aware of the gravity of the situation and will explain it to you, if further explanation is needed."

 

Here there is no mention of the condition of ascertaining the wishes of the people and, in accordance with the wishes of the people so ascertained, the Maharajah having full authority then to proceed with the accession. Here it is an appeal, ad misericordiam almost, to the Government of India to come and save his rule over the State. By that time this rule had practically been repudiated altogether, as appears very clearly from Mr. Menon's account, to which I drew the attention of the Security Council at the previous meeting. The account said that, before going to sleep in Jammu after his all-night journey across the two high mountain passes from Srinagar, the Maharajah had given directions to this effect: "If Mr. Menon comes back, then you need not wake me up, because I can sleep in peace, and help will be coming from India; but, if Mr. Menon does not come back, shoot me, because all is lost."

 

This accession was not offered in accordance with the principle that the Government of India's representative himself presented to the Security Council: that the ruler can go ahead with accession when there is agreement between him and his subjects, but not when there is a dispute. Here there was not a dispute, but the Maharajah's authority had been altogether

repudiated. This was the end, so far as the Maharajah was concerned. All was lost for him. He was not acting in accordance with the wishes of the people. The wishes of the people were turned about, and he said to the Government of India; "If you can send any help, send it immediately, because it is the only way that the State can be saved" - meaning that it was the only way in which his own authority could be saved. Does this comply with the idea of accession as placed before the Security Council by the Government of India ?

 

There was a good deal of correspondence between the Government of India and the Government of Pakistan, and all those assurances, those promises, those pledges were given to Pakistan. Their purpose was that India had not sent its military forces into the State for the purpose of in any way the decision of the people of the State with regard to accession, but had sent them to meet the emergency that had arisen, and that once law and order was restored and the territory of the State was cleared of the raiders, the Indian Army would be withdrawn and the people of the State would decide the question of accession through their freely expressed wishes. Further than that, the two parties have since agreed that this is the method through which this question will be resolved. accepted the principle that 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.

 

The resolution of the Security Council dated 21 April 1948 stated this :

 

"The Security Council,

 

"Noting with satisfaction that both India and Pakistan. desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite,

 

"Instructs the Commission to proceed at once to the Indian subcontinent and there place its good offices and mediation at the disposal of the Governments of India and Pakistan with a view to facilitating the taking of the necessary measures, both with respect to the restoration of peace and order and to the holding) of a plebiscite, by the two Governments" -I stress that the holding of a plebiscite by the two Governments "acting in cooperation with one another and with the Commission, and further instructs the Commission to keep the Council in formed of the action taken under the resolution

 

This was the decision of th: Security Council, in pursuance of which the United Nations Commission for India and Pakistan was appointed, and the Commission went over later in July-to perform this task.

 

Then the resolution of the Commission itself 13 August 1948, part III, which both Governments accepted, states:

 

"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"-which the earlier portion of the resolution had provided for-"both Governments agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured."

 

Then there is the resolution of 5 January 1948 of the United Nations Commission for India and Pakistan, which was adopted later because the resolution of 13 August 1948 had stopped with the portion that I read out and Pakistan wanted the conditions of the plebiscite also to be spelled out. The beginning of the Commission's resolution of 5 January 1949 reads:

 

"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 1948:

 

"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".

 

That was the agreement: "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" It has not yet been decided It has to be decided, and it will be decided in accordance with the freely expressed wishes of the people. It has been said: But the word used here is "will '' be decided, which indicates simple futurity. All right, it indicates simple futurity. That still means it has not yet been decided. It has to be decided simply in the future. I suppose the suggestion is that simple futurity means that there was no binding obligation undertaken. But I submit that the language is quite clear, that a binding obligation was being undertaken. In any case, if "will'' and "shall'' make so much difference in these documents, part III of the Commission resolution of 13 August 1948, which I have already recited, have already recited, had provided that: "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......"

 

But I would submit very respectfully that the Commission was not even conscious of the fact that the "will" and "shall" in one context or the other would make any difference or would lead to different interpretations. It was setting down its meaning that this was the method of deciding the dispute between the parties In the resolution of 13 August 1948, the Commission used the expression "shall be decided. When it had obtained the agreement of the parties to both the resolutions, on 5 January 1949, it used the expression "will" be decided, it has still to be decided.

 

That was the situation regarding the resolution. I might submit to the Security Council that several resolutions of the Council itself, which I need not read out, have laid down the same principle. There is the resolution of 12 December 1957, which is the latest of them. They have repeatedly laid down that the question of the accession of the State of Jammu and Kashmir to India or to Pakistan will be decided through the democratic method of a free and impartial plebiscite. And that stands to reason.

 

That is the whole essence of the disputes to whom shall the State accede? That question shall be decided through the freely ascertained wishes of the people. Therefore, that question has not been decided. It has not been decided obviously because that question is in dispute Consequently, it cannot lead to any legal consequences except to the extent to which the de facto situation makes it compulsory.

 

Now we shall deal with the question of aggression. The question of aggression was raised in the very first letter of the Government of India addressed to the Security Council. How did the Security Council deal with the question of aggression ? It was raised, it was argued and it was repeatedly urged, and as a matter of fact towards the end of first round of discussions in the Security Council it became the insistence of India that the security Council should only concern itself to get the territory of the State vacated by whosoever had entered from the outside for the purpose of fighting there, and that the resolution of the problem, the ascertaining of the freely expressed wishes of the people and so on, would be carried out by the Government of India. The Security Council firmly and consistently refused to accept that position.

 

The statement of Mr. Warren Austin on 10 February 1948 in the Security Council will make that clear quite clear. He said that:

 

"...Sheikh Abdullah made a statement that indicated that what he desired-and this was ratified by the representative of India immediately afterwards as a trend in the Security Council towards the termination of hostilities, was that the Security Council should take up a position which would amount to that of an ally in a war, and should pull off Pakistan and allow India to finish the job by force against tribesmen. That is the very last position which the Security Council ought to take."

 

Then he went on a little later to say the following:

 

No party coming here to discuss a case like this can expect trends in the Security Council towards the application of force, or towards a solution which would ally the United Nation with one side so that it could be successful in a military attack or defence.

 

A little later on he said:

 

I think that there is no confusion at all about the fact that the trend of our opinion, which is not yet in the form of a resolution, is towards a pacific settlement of this matter--an arrangement with character that they command the respect and the confi terms of such dence of the parties to the dispute. As I have said, there seems to be no other way of bringing peace to that part of the world than this specific method of agreement between the parties, which involves such management and such control of the plebiscite-to which both parties have assented-as to ensure that everyone interested will know that it is free, fair and just." A little further on he said:

 

"I hope that when the Indian delegation returns to its country it will make very plain the fact that the United Nations is not engaged in promoting war, and that the Security Council-namely, is trying to find a pacific solution to this problem." [243rd meeting, pp. 75 and 76.]

 

Then, the next day, on 11 February 1948, Mr. Arce, the representative of Argentina said the following:

 

"The cause of the present war is the rebellion of the Kashmir people against their Ruler, and the only remedy is to look to the will of these people.. it is absolutely necessary to settle the matter of the plebiscite, first of all, as the only way to stop war." [246th meeting, p. 118.]

 

The fact of the matter is that there was insistence on the part of India throughout the Security Council discussions, as there has been since, on the so-called aggression. The Security Council refused firmly to be drawn into any discussion of it. They said the plain fact is that these people have risen against the authority of their ruler on the question of accession and the only way to deal with the situation is to assure them, and subsequently to carry out that assurance, that what they desire to obtain by force can be obtained through peaceful methods, and their will ultimately will prevail. This matter of aggression was rigorously pursued by India before the Commission. The Commission certainly, as it was bound to do, took note of India's submission on the various points before formulating the terms of resolution of 13 August 1948; its first interim report makes that quite clear:

 

"When the Commision was officially apprised of an element in the situation which had not been explicitly stated in its original terms of reference" that is to say, in the meantime, in the first week of May 1948, regular Pakistani forces had entered the "Azad" Kashmir area "it was forced to choose between two alternatives: either two alternatives: either to inform the Security Council of this material change, requesting new instructions, or to proceed to exert its mediatory influence in search of ways and means to correct those conditions. The Com mission, after thorough consideration of the implications involved in referring the case back to the Security Council, decided to use its good offices to endeavour to obtain the cessation of hostilities and to create a peaceful and friendly atmosphere deemed essential for a final settlement.

 

"The Commission, as can be appreciated from the historical account of its proceedings, inquired extensively into the possibilities of instituting a cease-fire. It ascertained that the Government of Pakistan would be willing to accept a simple cease-fire. The Government of India, however, clearly indicated that it could not entertain any proposal which would permit the Pakistan forces to remain within the territory of the State of Jammu and Kashmir. Finding that there was no common ground for obtaining agreement to an unconditional or simple cease fire, the Commission drew up proposals which were calculated to satisfy both Governments

 

'In order to link the cease-fire to the preparation for a final settlement, which was the desire of Pakistan, and yet provide for the withdrawal of Pakistan forces and tribes men, as India requested, the Commission proposed, as part II of its resolution of 13 August, a truce agreement based on principles which it deemed fair and equitable,

 

the details of which were to be worked out immediately following the cease-fire order.

 

"These principles were :"

 

I repeat again, these were the principles on which a truce agreement and truce scheme were to be based.

 

"(a) Withdrawal of the Pakistan forces from the State of Jammu and Kashmir;

 

"(b) Withdrawal of tribesmen and other Pakistan nationals not normally resident in Jammu and Kashmir, and who had entered the State for the purpose of fighting.

 

The above provisions were designed to satisfy India's demands.

 

"Other principles were:

 

"(c) Temporary administration by local authorities ("Azad" Kashmir) of territory evacuated by Pakistan troops;

 

"(d) Withdrawal of the bulk of the Indian forces from Jammu and Kashmir;

 

"(e) Temporary retention of such minimum of the Indian forces as might be required for the maintenance of law and order;

 

"(f) Official assurances as to safeguarding people, law and order, as well as all human and political rights.

 

"These proposals were thought by the Commission to satisfy Pakistan's demands.

 

"Finally, to complete its proposals, the Commission requested the two contending Governments to reaffirm their previously expressed desire that the people of Kashmir be permitted to determine their future political status, a principle which had been accepted by both India and Pakistan.

 

"In general, the Commission considered that the principles of the truce agreement constituted a balance which could not but meet with the approval of both India and Pakistan, and which, upon acceptance and implementation, would promptly clear the way for both Governments to enter into active collaboration with the Commission in the study of terms for a fair and equitable plebiscite". This is again the crux of the matter. When the Commission went out, it found that this situation was not only the situation which existed at the time when the Commission was set up but the further situation that Pakistan regular forces were now on the "Azad" Kashmir side also. India insisted upon one point of view, Pakistan upon another. The Commission exerted itself and finally drafted these principles, that is to say, that a truce agreement would be drawn up which would provide that, from the one side, the tribesmen as well as the regular forces would be withdrawn, along with any Pakistan. nationals who might have entered for the purpose of fighting; and, from the other side, the bulk of the Indian forces would be withdrawn. That is how it appeared later in the resolution itself. There were other provisions to satisfy Pakistan that thereafter the Governments would agree upon the terms lending to a plebiscite. Therefore, all these questions, the question of accession, the sovereignty of the State, the so-called aggression -all were taken into account before the proposals contained in the resolution of 13 August 1948 were formulated and presented to both Governments. The Commission had, I think, already decided that they were not concerned with the juridical questions whether the accession was valid or not, whether aggression had been committed or not, or what the sovereignty was; they were to take note of the position as it existed and then make proposals which would enable the two Governments to cooperate towards the holding of a plebiscite.

 

The following statements appear in a summary of the meeting of representatives of the Government of India with the members of the Commission :

 

"...the Prime Minister proceeded to comment on various other proposals under part II, feeling that the Commission might like to have the Government of India's views thereon. The formulation of paragraph I under section A, he said, constituted 'rather a feeble and complicated way of saying something very simple'." The Commission had said that a material change in the situation had taken place as a result of the entry of Pakistan, and the Prime Minister asked why it did not say that they had committed aggression. He said that the Commission's formulation was a rather feeble and complicated way of saying something very simple. I continue to quote.

 

"On that same point, Mr. Ayyangar said that the Government of India readily accepted the principle that Pakistan troops should be withdrawn, but that it was not in accord with the reasons given in support of that principle:

 

"Mr. Korbel pointed out that the Prime Minister himself had said that the Government of India was not concerned with humiliating Pakistan but wished to affect the withdrawal of Pakistan troops. Paragraph I under section he said, secured that result. The Commission, he said, did not wish to concern itself with the juridical questions involved but on that point had followed the line adopted in the Security Council resolution of 21 April."

 

The Commission, therefore, without pronouncing itself on these matters, tried to bring about a situation where whatever was complained of from both sides would be eliminated, so far at least as the freedom of the plebiscite was concerned, so that a free plebiscite could be held. From that moment, when the two Governments accepted those principles as embodied in the resolution of 13 August 1948 and the resolution of 5 January 1949, those questions became academic. They had been taken care of, and the resulting agreement was binding on the two Governments. From then onwards, therefore, the sole question was the implementation of the resolutions. The simple might say that this means X and the other that it means Y. mentation might raise questions of interpretation. One side Nevertheless, the question was of implementation first, correct interpretation, then implementation. No further question of aggression, or sovereignty or validity of the accession could arise. The letter of the Prime Minister of India of 20 August 1948 accepting the resolution of 13 August 1948 makes that very clear. The second paragraph of the letter says;

 

"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 conflict actually was between the people and the Maharajah and so on, but I will not go into that. So, after having pointed out and certain other facts, the Prime Minister goes on :

 

"Since our meeting of 18 August ''-that was for the purpose of discussing with the Commission the implications of the various paragraphs of the resolution, the clarifications, the assurances, and so on-"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 regard to them. It was in this spirit that I placed the following considerations.

 

And then he set forth what considerations he had placed before the Commission. And family, the letter concludes:

 

"In view of this clarification, 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." The resolution, the Prime Minister said, in some respects was found by them to be unsatisfactory; they would have wished certain things to be expressed differently, certain other things to have been included, and the Commission should have pronounced itself on certain matters, and so on. But after having considered everything and after having made their point of view with regard to the resolution clear, they finally accepted it; they accepted it in view of everything the flagrant aggression, according to them, and so on.

 

On 16 December 1952, I made a statement before the Security Council which summed up the situation as I would desire to sum it up now on this matter, and that will do it perhaps more briefly than I could-this afternoon. I shall therefore quote it, with the permission of the Council; I said:

 

"The question today is really academic. This question of the validity of the accession, of the alleged aggressions by one side or the other-these matters have long been left behind."

 

I might say that the case was not so one-sided even in being pressed before the Security Council. The Pakistan Government had repudiated the validity of the occasion, had never admitted its validity, had not accepted the sovereignty of India over Kashmir, had charged India with aggression against Pakistan and in Kashmir. All these questions were being argued by both sides. I continue to quote:

 

"The Crux of the matter, as the representative of India put it the other day, is the implementation of the two resolutions which constitute the agreement between the two Governments on this matter.. Since those resolutions were accepted by the two Governments during the last week of December 1948, long after all these matters had happened and had been debated and had been clarified between the Commission and the two Governments, these questions, as I have said, have long been academic. The events in Kashmir in August, September, October, November In December of 1947, the action taken by the Government of Pakistan on 8 May 1948-these all happened long before these two resolutions were even proven by the Commission, let alone before they were accepted by the two parties. I would therefore beg the Security Council to remember that, although they are repeatedly raised, they have really now become a form of abuse in which the Government of India chooses to indulge against the Government of Pakistan.

 

"Normally, it would be most unjustifiable on my part to to take so much of the time of the Security Council to go over the same ground again. But the representative of India has solemnly adjourned the Security Council to decide this question of accession if it wants this matter to be dealt with rightly. I submit that, at the time when the Government of India agreed to the resolutions, all these events have occurred, had been debated, had been mentioned to the Commission, had been considered by the Commission, had been taken into account by it; clarifications had been brought from the Commission on various aspects of its resolutions touching upon those matters, and the result had been an agreement which is embodied in these two resolutions." [609th meeting, paras, 67 and 68.]

 

You cannot today go behind them.

 

Now, under those resolutions what are the obligations of the parties? That is the agreement which holds the off field, as has been repeatedly said by my friends on the other side also. The resolution of 13 August 1948 provides as follows:

 

"The United Nations Commission for India and Pakistan,

 

"Having given careful consideration to the points of view expressed by the representatives of India and Pakistan regarding the situation in the State of Jammu and Kashmir, and"-it included all these questions "Being of the opinion that the prompt cessation of hostilities and the correction of conditions the continuance of which is likely to endanger international peace and security are essential to implementation of its endeavours to assist the Governments of India and Pakistan in effecting a final settlement of the situation,

 

Resolves to submit simultaneously to the Governments of India and Pakistan the following proposal :

 

"Part 1

 

"Cease-fire order

 

"A. The Governments of India and Pakistan agree that their respective High Commands will issue separately and simultaneously a cease-fire order to apply to all forces under their control in the State of Jammu and Kashmir as of the earliest practicable date or dates to be mutually agreed upon within four days after these proposals have been accepted by both Governments.

 

B. The High Commands of the Indian and Pakistan forces agree to refrain from taking any measures that might augment the military potential of the forces under their control in the State of Jammu and Kashmir.

 

"(For the purpose of these proposals forces under their control' shall be considered to include all forces, organized, fighting or participating in hostilities on their respective side.)

 

"C. The Commanders-in-Chief of the forces of India and Pakistan shall promptly confer regarding any necessary local changes in present dispositions which may facilitate the cease-fire.

 

"D In its discretion and as the Commission may find practicable, the Commission will appoint military observers who, under the authority of the Commission and with the cooperation of both Commands, will supervise the observance of the cease-fire order.

 

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

 

Subject to some comments that I shall have to make later to the Council on two of these aspects, because they have been raised repeatedly by the representatives of India, the rest of it has already been complied with, and therefore, with the exception of those two matters, we are no longer concerned with them. I now continue to quote:

 

"Part II

 

"Truce agreement

 

"Simultaneously with the acceptance of the proposal for the immediate cessation of hostilities as outlined in part I, both Governments accept the following principles as a basis of the formulation of a truce agreement, the details of which shall be worked out in discussion between their representatives and the Commission.

 

"A

 

"1. As the presence of troops of Pakistan in the territory of the State 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 the State."

 

This is the paragraph on which the comment of the Prime Minister of India was that it says in too many words what could have been said very simply. Now continuing:

 

"2. The Government of Pakistan will use its best endeavorour 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.

 

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

 

"B

 

"1. 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, there by 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 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.

 

"2. 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 of its Army which in agreement with the Commission are considered necessary to assist local authorities in the observance of law and order. The Commission will have observers stationed where it deems necessary.

 

"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 and that all human and political rights will be guaranteed.

 

"C

 

"1. Upon signature, the full text of the truce agreement or a communique containing the principles thereof as agreed upon between the two Governments and the Commission, will be made public."

 

Here I would make just one comment because this is the portion which has caused the greatest controversy, blocking progress towards implementation. These are the principles in A and B upon which the truce agreement would be based. One thing which is clear, and it has become clearer still if further clarification were necessary, is that it was meant that the truce agreement should be agreed upon and drawn up and even published before any of these things could be done. It is perfectly obvious that if you are going to draw up a truce agreement containing certain principles, it cannot be the meaning and it cannot be expected that something which is to form part of the agreement must be done before the-agreement is reached or arrived at. That is one of the principal matters that has held up further progress.

 

Then there is part III of the resolution, which I have already read out to the Council [see para. 35].

 

These were the obligations undertaken by the two sides, and the second resolution is certainly supplementary. Somehow it has been said that the resolution of 5 January 1949 was only supplementary, as if it did not itself contain provisions binding on the two parties. It relates to the stage after what has been provided for in the 13 August resolution has been accomplished. ac

 

But only one comment is necessary on the provisions of the second resolution-it is not necessary to read it out-and it is this: the Council will have realized that the demilitarization so far envisaged in the 13 August resolution is the withdrawal from the "Azad" Kashmir side of the entire regular forces of Pakistan, and of the tribesmen and Pakistan nationals who had gone in for fighting, from the Indian-occupied side, of the bulk of the Indian forces. What would this leave behind? This would leave behind the "Azad '' Kashmir forces-there could be no question of their withdrawing because they were the people of that territory-and it would leave behind the Indian Army, minus the bulk which is withdrawn and the State forces, the forces of the Maharajah. The further provision with regard to demilitarization, made in the 5 January resolution was that after the Plebiscite Administrator had taken over, he would affect the disposal of the military forces left on both sides. He could dispose of them as he deemed fit, having regard to the security of the State and the requirements of law and order and the freedom of the plebiscite. If he felt, "Well, on the 'Azad' Kashmir side there are twenty-five battalions, let us say, while no more than two are needed", it would mean that the rest should be disbanded If he felt that on the Indian-occupied side the Indian forces were not needed fat all, that they should be withdrawn, that the Maharajah's forces were enough to keep law and order and look after the security of the State, he would order accordingly. There was some dispute subsequently as to what "disposal" meant. We are not concerned here with what disposal means because that stage has not yet been reached.

 

These were two stages of demilitarization, one contained in the resolution of 13 August 1948, the other contained in the resolution of 5 January 1949. We have not reached the latter stage yet, but I have drawn attention to it because, later, before the United Nations Representative, it became India's position that India would not withdraw the bulk of its forces from the State on its side of occupied Kashmir unless there was also a large-scale disbandment of the "Azad'' Kashmir forces. Therefore, as we shall see as we go along, the United Nations Representative felt himself justified in making proposals which would combine the two operations. According to these the proposals, withdrawal should, on the one side, not only make provision for the withdrawal of the regular Pakistan forces, but should also make provision for the disbandment, a large-scale disbandment, of the local forces; and, on the other Also, the withdrawal, the demilitarization, should be carried to a point that would leave the minimum for the United Nations Plebiscite Administrator to dispose of when he took over.

 

I shall now carry on to the questions which have caused so much trouble. It has been said on the other side that assurances and clarifications were given by the Commission. They were given to both sides, and I state here categorically that assurances and clarifications given by the Commission are accepted completely by the Pakistan Government. I have no doubt that they will be accepted completely by the Indian Government also. We were so anxious while these exchanges were going on and we were aware that certain assurances were given to us; it was perfectly natural and normal that certain assurances must have been given to the other side also-that we insisted with the Commission that the assurances given to us should be communicated to the Government of India and that any assurances that were given to the Government of India should be communicated to us, so that if we came to agreement on the resolutions we could agree to something in the same sense, understood by both sides in the same manner. This was my statement to the Commission.

 

As Foreign Minister of Pakistan I wrote a letter to the Commission on 6 September 1948 from which I quote:

 

"The Government of Pakistan has not been informed of any clarifications and elucidations of the proposals contained in the Commission's resolution of 13 August 1948 that the Commission may have furnished to the Government of India. If no clarifications or elucidations have been furnished, no point in that behalf arises. If any clarifications or elucidations have been furnished by the Commission to the Government of India, it is necessary that they should be communicated to the Government of Pakistan and the latter's agreement to them secured. It is equally necessary that the clarifications and elucidations furnished by the Commission to the Government of Pakistan should be communicated to the Government of India and their acceptance of them secured. The Commission will recognize that it is of the utmost importance that any agreement between the two Governments should be arrived at on the clearest possible basis, so that there is left no possibility of any misunderstanding of any of the matters agreed upon. In other words, it is essential that the two Governments should agree simultaneously to the same thing and in the same sense.``

 

Therefore, it has never been the position of the Government of Pakistan that it will not accept the assurances given to the Government of India by the Commission. We accept all the assurances given by the Commission to the Government of India on any point with regard to the resolutions which have been brought to our notice, and anything to that effect contained in the reports of the Commission and its proceedings we accept as having been brought to our notice.

 

Then I made a statement to the Chairman of the Commission on 8 February 1949. I said that the Pakistan Government "did not consider itself to be bound in any way by any clarifications or elucidations that might have been given by the Commission to the Government of India"-meaning if they had not been communicated to the Government of Pakistan and accepted by us. Mr. Lozano replied that "this position was fully appreciated by the Commission". We were extremely anxious that nothing should be left in dispute lest trouble should arise subsequently. But unfortunately trouble has now arisen.

 

Then the Prime Minister of India made a statement in his Assembly on 7 September 1948 with regard to the acceptance of the resolution. He said:

 

"The Commission told us that these proposals stood as a whole and while they were prepared to discuss any matter gladly, it was difficult-in fact, it was not possible for them to accept conditional acceptances, because if we made some conditions and Pakistan naturally other conditions, what exactly was accepted and by whom? So they said that these proposals were to be accepted as they were, and if there were conditions attached to them, it was not an acceptance but a rejection."

 

So that, from the position of both sides, it was quite clear that the resolutions were accepted as a whole and that there were no conditions attached to acceptance. As I have said, clarification is a different matter. Clarification means, "This is what the resolution means". A condition means, "We accept this, but subject to the condition which the resolution does not contain".

 

Now I approach the main question which has held up progress with regard to the implementation of the resolutions, and that main question is this. India contends that no progress with further implementation of these resolutions can be made unless Pakistan withdraws its troops before anything else happens, and that Pakistan is under an obligation to do so. That is their simple position. The equally simple position of Pakistan is that Pakistan is under an obligation to withdraw its troops in accordance with the conditions on which the truce agreement is to be based, as soon as the truce agreement has been reached. But there is no obligation with regard to the withdrawal of troops, no obligation with regard to the implementation of anything that is to be contained in the truce agreement before the truce agreement has been arrived at.

 

That is the crux of the difference on this matter. Our position is that the Commission's scheme meant that, first, there should be an agreement. Later on the Commission made it clear what it meant by agreement, and I shall draw the attention of this Council to that also. We had at one time said that there should be an agreement through a process of discussion between all three parties, but the Commission said, "No, that was not our meaning", and we accepted that. The Commission said, "We shall discuss with Pakistan the question of how and in what manner and through what stages its forces are to be withdrawn. We shall discuss with India separately - not with Pakistan taking part in the discussion-how the bulk of its force is to be withdrawn, but we shall make ourselves responsible for seeing that the agreement which we make and which will then become the truce agreement shall provide that the whole process will be synchronized. Pakistan will begin the withdrawal of its forces. Then India will begin the withdrawal of the bulk of its forces. Then the process will be a synchronized process of withdrawal of both sides, and we shall see to it that at no time shall there be any advantage to one side or the other. In other words, no side shall be placed at any disadvantage." At one time they even said, "Neither side will be placed in a position where the other side could attack it".

 

That is, again, the essence of the difference, and I submit that this was the position. I proceed to establish it. Paragraph 10 of the reply of 27 August 1948, from the United Nations Commission for India and Pakistan, says:

 

"In accordance with part II, B. I of the resolution, the Indian Government, when apprised that the Pakistan forces are being withdrawn from the State of Jammu and Kashmir, agrees to begin to withdraw the bulk of its forces from the State in stages to be agreed upon with the Commission. Synchronization of the withdrawal of the armed forces of the two Governments will be arranged between the respective High Commands and the Commission."

 

What could be clearer? "Synchronization of the withdrawal of the armed forces of the two Governments will be arranged between the respective High Commands and the Commission." The Commission subsequently explained-and I said we accepted the explanation although we had another interpretation that this did not mean that the Commission would arrange the synchronization between the three of them together, but that one High Command and the Commission and the other High Command and the Commission would discuss the matter and then the arrangement would be that withdrawal would be synchronized. Then, in its letter of April 1949, this is what the Commission said:

 

"As stated in paragraph 10 of the appendix to the letter of the Commission to the Government of Pakistan of August 1948. Synchronization of the withdrawal of the armed forces of the two Governments will be arranged between the respective High Command and the Commission."

 

In another letter, dated 28 April 1949,-the Commission said:

 

"(a) With respect to section II [of the resolution of 13. August 1948], it is desired to emphasize to the Government of Pakistan that the schedules of withdrawals of the Pakistan troops and the bulk of the Indian forces will be faithful to the Commission's resolution of 13 August 1948 and represent a coordination of timing which in the view of the Commission will constitute a synchronized action."

 

In the third interim report of the Commission it is stated:

 

"...The Commission also reiterated its statement (S/1100, annex 27) that synchronization of the withdrawals would be arranged between the respective High Commands and the Commission."

 

And I have already drawn the attention of the Council to section C of the resolution itself, which obviously visualizes that the two processes would be synchronized. The truce agreement was to be published in advance of the implementation. Now, how can you publish an agreement in advance of implementation and then insist that the implementation by one side should be before the agreement has even been reached? In section C, the publication of the truce agreement is provided for. Then we come to the Commission's explanation of what it meant by synchronization. In its third interim report it says:

 

"...The Commission's reference to synchronization should be interpreted to mean that discussions with the Government of India concerning the withdrawal of the bulk of its forces would ensure without delay and lead to the establishment of a time sequence for the two withdrawals agreed upon between the respective High Commands and the Commission after the acceptance of the truce terms by both Governments. The Commission was not able to share the view of the Government of Pakistan that the only method of assuring this form of synchronization was by the full and free exchange of information between the Indian and Pakistani Governments regarding withdrawal plans. It was feasible in the Commission's judgment, and the Commission's military advisor had had this in mind, that the arrangements could be coordinated and supervised by the mediation party, namely, the Commission, so as to cause the two withdrawals to represent a dual operation which would be coordinated in timing and would result in a military situation in the State which was not such as to place either side at a disadvantage.

 

"The Pakistan Government could not in reason expect, nor could the Commission have granted, a 'synchronization' which would have been incompatible with the terms of the resolution of 13 August. That resolution does not suggest that Pakistan should be entitled to make its withdrawals conditional upon the fact of the consultations envisaged between the Commission and the Government of India having led to an agreed schedule of withdrawal of Indian troops. What Pakistan could expect would be that assurance should be made that the withdrawals of the two armed forces would be arranged and carried out in such a way as to prevent the creation of a situation which might constitute an opportunity for one or the other party to open the hostilities. The danger of such an eventuality should not be overemphasized.

 

"The Commission did take into account Pakistan's concern that the withdrawal should be synchronized. It repeatedly assured the Pakistan Government that this would be evident in the agreement itself, and it must be noted that the terms were to be published in full immediately upon the acceptance of the two Governments. The withdrawal plan for the Indian forces, a part of that agreement, was consequently to be published in advance of implementation by either side."

 

Could anything be clearer? Here a grievance is made: these people insist upon our carrying on with the two resolutions whose implementation they have themselves blocked; they blocked it because they had not withdrawn their forces; therefore, we are not obliged to withdraw our forces until the truce agreement is published. No such truce agreement has been reached, let alone published. On this point, we can get into a vicious circle for which the Commission did not provide. As a matter of fact, this matter has been referred to by everyone on the other side, from the lowest to the highest authority. Including they were revered and I use that expression not merely as a matter of courtesy but from the bottom of my heart-the very reverend President of India, whom I have known for many years and have held in great respect and reverence, as all Indians do. In an address to his Parliament, he asked how these resolutions could be complied with as long as Pakistan troops were not withdrawn. The position is that Pakistan troops cannot even begin to be withdrawn until there is agreement between India and Pakistan and that agreement is published. some

 

It is true that the Commission rejected our interpretation that we could take part in the discussion of the terms of that agreement between the Government of India and the Commission, and that that should occur with our consent. They said, "No; all that you are entitled to but you are entitled to that is that the agreement which the Commission shall come to with the Government of India should provide for a synchronized withdrawal, which shall at no time place anybody at a disadvantage nor bring about a situation under which one side or the other could resume hostilities."

 

That has not been done. Mr. Josef Korbel was a member of the Commission. The Commission, as the Security Council will recall, was composed of five members, one nominated by each party. India nominated Czechoslovakia, Pakistan nominated Argentina, two members, Belgium and Colombia were nominated by the Security Council and one member, the United States, was agreed upon by the latter two. Mr. Korbel of Czechoslovakia who had been nominated by India, made a statement on the question on 4 March 1957 which was published in the New Leader of New York. He was the Chairman of the Commission at one of the most crucial times when all these assurances were given to both sides. His statement was as follows:

 

"According to the Indian delegate, Pakistan prevented implementation of the section of the United Nations Commission resolution dealing with a plebiscite by refusing to carry out the other part recommending demilitarization of Kashmir. This is not true: Pakistan was not expected to withdraw her forces from Kashmir as long as there was no agreed-upon plan for simultaneous Indian withdrawal......"

 

It was perfectly clear that withdrawal was always subject to that condition, of course; that once agreement was reached, Pakistan was to withdraw and, when India had been notified of a partial withdrawal then it was to begin its withdrawal. The rest would ensue naturally. This was the agreement that was reached. What happened?

 

Mr. President, perhaps you would like to break off here for about ten minutes, as I think you intended. The meeting was suspended at 5 p.m, and resumed at 5.15 p.m.

 

The PRESIDENT: I invite the representative of Pakistan to continue his statement.

 

Mr. ZAFRULLA KHAN (Pakistan): I might add one sentence to what I said shortly before the Council adjourned for the brief recess. I had made a reference to the revered President of India, but I wish to say in that connexion that I didn't mean to imply in the least that the President had himself interpreted the resolution and said that he had come to that conclusion, or had in any way misinterpreted it. As we all know, he is the constitutional Head of Government, and obviously that was the explanation placed before him by the Government and he accepted that explanation and is under that impression, though that is not the correct interpretation of the resolution.

 

Now, what happened with regard to the actual implementation? On 2 March 1949, the Commission wrote a letter to the two Governments, inviting the representatives of the two Governments to present for discussion proposals for the implementation of part II of the resolution of 13 August 1948. I shall presently read out that letter, and it will be quite clear from that letter, I venture to submit, that at that date the Commission put the same interpretation upon how the truce agreement was to be reached that we put upon it and subsequently presented to the Commission. By that time, the negotiations with the Government of India on that point of the truce agreement had come to a deadlock. The Commission and I pay a tribute to it-very ingeniously reinterpreted its resolution so as to meet the Indian point of view and yet perhaps obtain the same result in substance. As I have said, our interpretation was that there were to be joint discussions : that India was to know what our proposals were, and we were to know what their proposals were; and both sides were to know what the agreement preached by each side was, in the normal way of teaching an agreement. But later on, as will be seen, India laid down the condition that the proposals that India submitted to the Commission should not be communicated to the Government of Pakistan and, not only that, but should not even be communicated to the Security Council-so that up to now even the Security Council does not know what were the proposals made by India with regard to the withdrawal of the bulk of its forces from the State of Jammu and Kashmir.

 

I shall now read out the letter of 2 March 1949 from the Chairman of the Commission :

 

"On behalf of the United Nations Commission for India and Pakistan I have the honour to inform you that the Commission has been gratified to note that since the ceasefire came into effect, the Governments of both India and Pakistan have continued to take action on certain matters on which agreement was reached under part II of the Commission's resolution of 13 August 1948. It has learned with interest that the Commanders-in-Chief of India and Pakistan met on 15 January 1949 and discussed in detail matters relating to the cease fire, as well as certain aspects of the truce."-It repeats that not only the cease fire, but also certain aspects of the truce-"Further the Commission understands that the tribesmen have now withdrawn, that certain contingents of regular forces of both Dominions have been withdrawn, and that steps have been taken to stabilize the cease-fire line.

 

"The Commission considers that the implementation of the truth is the most urgent matter now awaiting action by the two Governments. In the desire to offer such assistance as it may "according to them, the agreement has to be reached by the two Governments, but the Commission will offer assistance-"the Commission invites the Government of India and the Government of Pakistan to send their civil and military representatives to meet with its Truce Sub-Committee and its Military Adviser."

 

They are both invited to come to New Delhi. If the subsequent interpretation adopted by the Commission had been the correct original interpretation, they would have met with the Indian representatives in New Delhi and with the Pakistan representatives in Karachi. Delhi, in these words. But they were both invited to New

 

"The Commission trusts that Monday, 7 Mach 1949, at 4 p.m. will be a convenient time and the official temporary headquarters of the Commission at Baroda House, New Delhi, a convenient place for its meetings.

 

"The Commission suggests that, in order to advance the work as quickly as possible and to build upon discussions previously held, the representatives of your Government. be prepared to inform the Sub-Committee of the measures already taken by your Government with respect to the truce agreement and to present for discussion proposals for the further implementation of part II of the Commission's resolution of 13 August 1948."

 

These proposals were to be presented at the meeting of the two Governments with the Commission on the date that was suggested. What actually happened was that the Pakistan representatives, who had taken a scheme for the truce agreement with them, presented it to the Commission or to the Truce Sub Committee of the Commission. When the representatives of India were asked to present their proposals, they did not object and said that they could not present them in the presence of the Pakistan representatives or to the Truce Sub-Committee when they were considering the other side's proposals also or that separate meetings should be arranged. They said that they were ready with their proposals, but inasmuch as the Commander-in-Chief was absent from Delhi they needed a few days more so that he could work on the proposals before they could be put before the Commission. So the meeting was adjourned. At the adjourned meeting they said that the proposals had been seen by the Commander in-Chief but as the Prime Minister was out of Delhi and was expected back within a few days, there would be a delay of two or three days. Then that delay took place. Finally, when they did present their proposals to the Commission, under the seal of secrecy, they laid down as a condition that the Commission was not to disclose those proposals to the Pakistan representatives, nor to anybody else, until agreement was reached. Then, of course, the agreement might be published as to what it was, but up to this day neither the Pakistan Government nor the Security Council nor anybody else knows what those proposals were.

 

That is where the implementation of part II of the resolution of 13 August 1948 came to a halt. But the Commission proceeded with part of the implementation, that is to say, to lay down the cease fire line on the ground-which was achieved, believe, sometime in July. And the Commission, in a sense, certified, affirmed, that part I of the resolution had been complied with. In its memorandum of 26 August 1949, it stated:

 

"The Commission subsequently decided to seek to bring about agreement on a cease-fire line through meetings of the military representatives of the two Governments. The Commission is highly gratified that these meetings, held in Karachi from 18 to 28 July 1949, resulted in the definition of an agreed cease-fire line, thus completing the implementation of part I of the resolution of 13 August 1948."

 

But complaints still go on, on the Indian side: How can you even approach the question of the implementation of part II, because part I has not yet been implemented ? But here is the finding of the Commission. There is also the Press release issued by the Commission on 22 September 1949, which reads in part as follows:

 

"When the Commission in February 1949 returned to the subcontinent the cease fire was in effect, and in so far as part 1 of the 13 August resolution was concerned there remained only the demarcation of the line on the ground, The Commission was hopeful that this would be expeditiously achieved and that a prompt implementation of the truce under part II might take place.

 

"It invited the Governments to send military representatives to a meeting in Karachi with the Commission's Truce Sub-Committee on 18 July 1949 Agreement was reached on 28 July on the entire cease-fire line, and was ratified without delay by both Governments."

 

So that in actual fact pact I of the resolution was deemed to have already been implemented, and that is why they wanted to continue with part II. The same finding was made by the United Nations Representative for India and Pakistan in his third report, in which he says:

 

"Part I deals with the cease fire. The primary objective of the UNCIP during the first stage of its activities was to obtain a suspension of hostilities. The ceasefire was agreed upon between the two parties and made effective on 1 January 1949 and, as a completion of this part of the resolution, a cease-fire was agreed upon between the two Governments under the auspices of the UNCIP in the Karachi Agreement of 27 July 1949. The line was demarcated subsequently on the ground.

 

"Therefore, part I of the resolution of 13 August 1948 can be considered implemented."

 

The same was later reaffirmed by the United Nations Representative. For instance, in the same report, he says:

 

"From the above it appears that since the resolution of 13 August 1948 was agreed upon, and since the suspension of hostilities came into effect on 1 January 1949. there has been a considerable reduction in the forces on each side of the cease-fire line. "Therefore part II of the resolution of 13 August 1948 has, to a considerable extent, already been implemented."

 

It was not that you could not approach the implementation of part II. Actually certain sections of that part had already been implemented, for instance, the withdrawal of the tribesmen: as soon as hostilities ceased, the tribesmen saw no reason to remain and they therefore left. But the main implementation of part II was blocked by the failure to come to an agreement with regard to a scheme to withdraw the bulk of the Indian forces from Kashmir.

 

As I said earlier, in connexion with part I, two points. have occasionally been raised, one, the non-augmentation of the armed forces, and the other, the efforts of the Governments to pacify public opinion. It has been said that Pakistan has been in default with regard to these two, that we have not observed the non-augmentation of the forces on the cease-fire line on our said and we have not made any effort to pacify public opinion. Non-augmentation is a passive element and would, to a large extent, be affected by the actual situation. For instance, through the passage of time it might become necessary to make different dispositions and so on. If by non augmentation you mean no appreciable increase in numbers, then the fact is there has been no increase in numbers on our side. As a matter of fact, the contrary has taken place; there has been a decrease in numbers. During the fourteen or fifteen years that have passed-I am not a military expert so I will not take upon myself the responsibility of saying that the military potential has not been affected in any sense-the military potential has been affected on both sides. Certain improvements must have been made in equipment and so on, on the Indian side, and certain improvements must have been made in equipment, on the Pakistan side. How can you determine non-augmentation except by saying-and I am authorized by my Government to say that there has been no appreciable increase, indeed no increase whatsoever, in the number of troops on our side. There has definitely been a decrease.

 

With regard to the pacification of public opinion, public opinion does sometimes become excited over events which happen outside the areas concerned and which exacerbate it. Then this question is dragged in. This is a thing which nobody can prevent. There can be no guarantee, and neither Government gave a guarantee, that public opinion would never become excited. The Governments were to go on making efforts and I would urge that this was an obligation taken by both sides. If I am told of concrete measures taken by India in this respect, I shall be able to Maten them measure for measure on the Pakistan side. If there has been any technical failure in regard to making appeals for pacification on the other side too. But that is not my case. My case is that this is an imponderable obligation. The Governments have done what they could. Were I making debating points, I would say that India has failed in that respect, and has not tried to pacify public opinion. Public opinion does get excited, and during the last year there have been unfortunate cases in different parts of India. I understand that today there has unfortunately been a repercussion on the Pakistan side. This is the kind of thing which nobody can prevent. The Government has tried to keep the situation under control, but it is not always. able to do so.

 

Therefore, both according to the Commission's findings and according to the finding of the United Nations Representative, Mr. Graham, part I has been implemented. The implementation of part II, according to us, has been blocked by a failure to reach agreement with regard to the scheme of withdrawal of the troops, and this has been due to the fact that the Commission was not satisfied that the scheme presented by India was balanced according to the resolutions.

 

With regard to these questions of non-augmentation and failure to pacify, perhaps I may draw the attention of the Council to two statements made in previous meetings of the Security Council. At the 797th meeting, on 25 October 1957, the representative of the United Kingdom made the following statement:

 

"...In this paragraph [paragraph B of part I of the resolution], both High Commands agree to refrain from taking any measures that might augment their military potential. This is clearly an important preliminary to the next stage, the stage of the withdrawal of the troops of Pakistan and the withdrawal of the bulk of the Indian forces, to which both sides stand engaged. Clearly, there is a connexion between augmentation and the removal or reduction of forces. Augmentation makes removal or reduction more difficult. Removal or reduction does away with any further problems about augmentation.

 

"It was originally contemplated that the three parts of the resolution of 13 August 1948 should be implemented in quick accession; and, as early as 1949, the Commission. for India and Pakistan was pointing out the difficulties arising from delay. Undoubtedly the passage of time has added to the difficulties about the implementation of paragraph B. In the further eight years since 1949, new difficulties have arisen. Armies have become more efficient; old equipment has been replaced; new roads have been built on both sides." [797th meeting, paras. 12 and

 

13.] This kind of thing is bound to go on. At the same meeting, on 25 October 1957, the representative of Iraq said:

 

"We wonder, therefore, if the new stand of the Government of India regarding the non-implementation of part I of the resolution of 13 August 1948 is not on the one hand an afterthought, and on the other, an attempt to reopen issues which have long been closed. In this respect it should be asked if Pakistan has not implemented part I, why did India enter into negotiations for the implementation of part II, the truce agreement? It was in January 1949 that India should have raised this matter. In fact, the negotiations conducted by the Commission for India and Pakistan and the United Nations representatives were all directed towards finding a basis for the formulation of the truce agreement." [Ibid., para, 67.]

 

Part I, paragraph E, stipulated that both parties should appeal to their respective peoples to maintain an atmosphere favourable for negotiation. India produces arguments and in formation to show that Pakistan has not only failed to make such appeals but has also indulged in what they call hostile propaganda. On the other hand, there are statements coming from the Indian side that can be interpreted as showing a hostile attitude towards the settlement of the dispute. The dispute has dragged on for such a long time, during which there have been so many events and declarations that it is hardly possible to make such statements a legal issue so as to block the possibility of proceeding to a settlement.

 

As a matter of fact, these are both strong considerations in favour of proceeding with the implementation so that the matter can progress towards a settlement. If there has been augmentation-I do not admit that there has been, but assuming for one moment as a matter of argument-than in the first place, let somebody who has had the opportunity of observing these things say whether there has been an augmentation, and we shall undertake at once to reduce it. In the second place, even if there has been augmentation, the remedy is demilitarization. That will take care of the augmentation also. An augmentation does not therefore mean that we are free of our obligations; it does not mean that if there have been augmentations of the forces on the Pakistan side of the cease-fire line the people of the State of Jammu and Kashmir must therefore be bound by their accession and cannot express their wishes freely with regard to the accession.

 

Assuming that there has been an improvement in the condition and effectiveness of any part of the forces, it applies to both sides. We believe that the crux of the problem is the passage of time without progress towards the objectives of the resolution. It was accepted that the implementation of part I would be followed immediately by the truce agreement, and the implementation of the truce agreement under part II to some degree has already taken place. The conclusion of the Commission with regard to its efforts at arriving at a truce agreement, and which appears in its third interim report, was this:

 

"In replying to the Commission's truce terms of 28 April (annex 21) the Government of India did not specifically deal with the question of withdrawals, but in a further reply to the truce terms dated 17 June (annex 50) the Indian Government presented its own scheme for the withdrawal of its forces, reaffirming its reference to the interdependence of the phasing of the withdrawal of Indian forces and the progress made with the disbanding and disarming of the 'Azad' Kashmir forces...",

 

The Government of India then wanted to jump from the first resolution to the second resolution and bring the two processes together, whereas the second process had to be carried out by the Plebiscite Administrator after he was inducted into office. Now continuing :

 

India asked that its scheme not be communicated to the Government of Pakistan until a truce agreement had been arrived at. The Indian plan was, in the opinion of the Commission, far from a fulfilment of India's undertaking under the terms of the 13 August resolution."

 

The Commission was under the obligation not to disclose the Indian scheme, but this was the Commission's conclusion, that the plan submitted to the Commission was, in the opinion of the Commission, "far from a fulfilment of India's undertaking under the terms of the 13 August resolution". And the Commission adds this:

 

"As has been seen from the discussion of the 'Azad' problem, and from the foregoing discussion withdrawals, India is not prepared to withdraw such part of her forces in Kashmir as might be characterized as the bulk', whether measured quantitatively or qualitatively, unless agreement with Pakistan on the large-scale disbanding of the 'Azad' forces is reached."

 

That is how the matter was blocked before the Commission the meantime, They wanted to telescope the two procedures, but there was the important condition to be fulfilled that the Plebiscite Administrator, who at that time, it was agreed, should be Admiral Nimitz, should take over, and when the plebiscite proceedings began, then he could arrange the disposal of the rest of the forces. But they began to insist that the "Azad" Kashmir forces had to be disbanded on a large scale. We shall also see that the United Nations Representative later attempted that, and that it did not meet their approval either.

 

The efforts of the United Nations Representative to effect demilitarization’s or even a summary of those efforts would take considerable time, and I am already behind my schedule: rather. I would be up to my schedule if my expectation with regard to the time available had been fulfilled However, I would draw attention to the conclusions that were reached by Mr. Graham, the United Nations Representative: that at various times he made various proposals, that he tried to bring about a demilitarization in strict accordance with the resolutions: that he tried to bring about demilitarization in accordance with India's demand that the two processes laid down separately in the two resolutions should be combined. It might be said generally that, with regard to his main proposals, Pakistan was willing to accept, India was not willing to accept. If necessary, if this position is questioned, I will be able to confirm what I have stated from the actual reports. I have documents here, but out of consideration of time I will not quote from them at this moment.

 

The final position, I believe, was as follows. In the process of this attempt at demilitarization, on 16 July and 2 September 1952, Mr. Graham suggested the retention of a minimum force of 6,000 "Azad Kashmir troops on the Pakistan side of the cease-fire line, and 18,000 on the Indian side-or of brackets of 3,000 to 6,000 on the Pakistan side and 12,000 to 18,000 on the Indian side: that is to say, these brackets to be brought to a definite figure by agreement. First the brackets should be accepted, then negotiations could take place.

 

While Pakistan observed that this proposal left too many soldiers in the State, it declared itself, subject to that observation, prepared to accept the proposals of the United Nations Representative, India. on the contrary, maintained that it was impossible to reduce the absolute minimum figure of 21,000, that the militia on the Indian side would in no circumstances be included in these calculations, and that this minimum on the Indian side would obtain only on a complete dishandling and disarmament of the "Azad'' Kashmir forces and that there would be no question of further disposal by way of withdrawal or reduction of the Indian forces by the Plebiscite Administrator: in other words, there must be at least 21,000 on their side, plus the militia: but the "Azad'' Kashmir forces should be completely disbanded, to be replaced by a civilian police force.

 

As I was authorized by my Government, with regard to this particular case, to submit to the Security Council the suggestion you can call it a proposal- to let the United Nations Representative in consultation with his military advisers report what, in his opinion, is needed to be done in respect of the withdrawal of forces to bring about complete compliance with the UNCIP resolution. On behalf of the Government of Pakistan, I put on record the assurance that we shall accept his recommendations, and we trust that India will also accept them. As soon as the acceptance of both parties has been signified and the truce agreement is signed, we shall at once take in hand the beginning of the withdrawal of our troops in accordance with the scheme submitted in the report of the United Nations Representative, and shall there-after continue to withdraw in accordance with the scheme till the whole of the Pakistan regular forces and the bulk of the Indian forces have been withdrawn from both sides of the cease-fire line. The rest

can be done by the Plebiscite Administrator under the resolution of 5 January 1949.

 

Now, another matter that is raised is: what a long time has elapsed. It is said that a long time has elapsed and, therefore, we should look at the situation as it stands today and more or less accept that situation, subject to some adjustments. With regard to the lapse of time, surely the crucial question is: To what has the delay been due, and upon whom does the main responsibility for the delay fall? Otherwise you will find, in international agreements, that if one side finds it awkward to carry out the agreement it has entered into, it will find all sorts. of excuses not to carry it out, and after some time has elapsed not even a long time and its tactics have successfully averted the fulfilment of its agreement, it will say: "A long time has elapsed. Now nothing needs to be done. Let us be satisfied with the situation". But the whole question is, what is the delay due to?

 

Again I state that if Pakistan has deliberately blocked the implementation of the resolutions and if, this fact having been determined and pointed out to it, it refuses to rectify its default in the speediest manner and at the earliest opportunity, then Pakistan is not entitled to come to the Security Council and to ask the Council to take measures towards the implementation of the resolutions. Then it is not entitled to do so because of its default, because it is delaying matters, because a long time has passed. But if it should be found that it is not the fault of Pakistan, then how does it result there from that whatever the situation is it should be accepted. Subject to the overall consideration all the time that, although, as I shall later submit, the parties to the dispute here are Pakistan and India, the people affected are the people of Kashmir. How does Pakistan's default or delay - assuming that such has taken place-deprive the people of Kashmir of the right to determine to which State they shall accede? That I shall come to later.

 

Pakistan will not come to the Security Council and ask for implementation of the agreement if it is determined that Pakistan is in default and refuses to rectify its default. However, supposing it is determined that it is not Pakistan's fault and supposing it is determined - although the two questions are different, it is enough if we find that Pakistan is not in default-supposing it is determined that it is India's fault, that the interpretation that India places on these paragraphs which are in dispute is not the correct interpretation, it is not what they agreed to, it is not the sense of the resolution as understood by both sides, it is not the sense in which the Commission meant it, surely then India cannot turn around and say, "We blocked the implementation of these resolutions but now because we have successfully blocked it for so many years, surely it is unjust to call upon us to go on with the implementation of it now".

 

That cannot be based on any moral principle, on any principle of international morality, on any principle of international law, on any principle of domestic law that might apply to it. How can the passage of time, which is not due to the default of the other party, affect the other prejudicially? How can the passage of time which may be due, if it is so found, to the default of the party which is pleading the passage of time, put it in a position to say, "We are no longer bound by the obligations that we took ''. That is the crux of the problem that the Security Council has to face.

 

In view of the repeated efforts made by UNCIP and the United Nations Representative and of India's rejection more than once of their proposals, which Pakistan was willing to proceed upon, it cannot be said that the delay in the implementation of the UNCIP resolutions and in progress towards a plebiscite could be charged to Pakistan. Surely a party cannot take advantage of its own default. Curiously enough, something like this was raised before the Commission. The Commission itself had at one stage said, "If the Plebiscite Administrator should find it impracticable to carry out the plebiscite, he might have recourse to some other means to ascertain the wishes of the people in respect of accession." This A question was raised before the Commission. The Commission had made a statement to India which is point 3 on aide-memoire 1, dated 21 December 1948, embodying the substance of the discussion on 20 December 1948 between the Prime Minister of India and Mr. Lozano, who represented the Commission. I quote:

 

"...As regards the third point, he [Mr. Lozano] said that the Commission wished for the possibility of a plebiscite to be explored first. Should the Plebiscite Administrator, however find a plebiscite to be impracticable, the way would be open to consider other methods for ensuring a free expression by the people of Jammu and Kashmir of their wish regarding the future status of the State."

 

One of the Pakistan Ministers, Mr. Gurmani, made a request for a clarification on this point, and this was the clarification given.

 

He [Mr. Gurmani] wanted an assurance that lack of cooperation from either side would not be regarded as a practical and technical reason for not holding the plebiscite. Mr. Lozano gave this assurance.``

 

If there is lack of cooperation, how can you then turn around and say, "Oh, well, so long as it has not been carried out, let it rest, it cannot be carried out".

 

I quote from point 1 of the aide-memoire handed to Mr. Bajpai by Mr. Lozano, the Colombian representative, and the Chairman of the Commission. It was a statement to Mr. Bajpai, It said:

 

"It was not intended at that stage to define what might constitute a 'technical or practical reason' for not holding a plebiscite. It is true that a lack of cooperation from either side could create obstacles which, in fact, might make the organization and holding of a plebiscite extremely difficult, if not impossible. However, The Commission feels that the principles embodied in the resolution of 5 January are not only binding on Governments but are based on and call for their fullest cooperation. Therefore, the Commission does not envisage a situation in which either side will withhold its co-operation.

 

"It would seem that a lack of cooperation, should it occur, would be considered not a 'practical reason' but a breach of commitments formally undertaken by the Governments of India and Pakistan. In this event, the Plebiscite Administrator would presumably then report to the Security Council, through the Commission, not that the holding of the plebiscite was impossible for 'practical or technical reasons', but rather that the lack of cooperation of either of the parties had rendered it impracticable."

 

This would be a breach of the obligation. It cannot be said that this cannot be done now.

 

The next topic that I will take up is the following. It has often been urged, and I have heard it said also by some members of the Security Council, that in principle or in effect the people of Kashmir have expressed their wishes freely concerning the question of accession in the elections that have been held in Kashmir and that therefore a plebiscite is no longer necessary. Certainly, that is the case of India and certain members may have mentioned it; well that is what has been said. Possibly it has some appeal to them; that I do not know. It is a matter, therefore, that requires being looked into.

 

Speaking in the Upper House of the Indian Parliament, the Prime Minister of India, referring to my statement before the Security Council on Friday last said:

 

"Stress was laid on what I said in 1948 about the people of Kashmir being consulted. Of course, I said it. Subsequently, a great delay has happened. The people of Kashmir has been repeatedly consulted in the form of general elections."

 

In the first place, I did not on any occasion on Friday say that the Prime Minister of India has said that the people would be consulted. I said each time that the Prime Minister of India has said that they had given a pledge, that they had given assurances, that they had made promises, and today I quoted something which said that they were bound in honour, to have this question settled through a free and impartial plebiscite, in accordance with the freely expressed wishes of the people, not that the people would be consulted in this respect. That is a different thing altogether.

 

I would again draw attention to statements of Sir Benegal N. Rau as representative of India before the Security Council on 9 March 1951 and on 29 March 1951. In his first statement he said:

 

"... Accordingly, provision was made in the Indian Constitution for a constituent assembly for settling the details of the Kashmir constitution "- that is with regard to the reality of this process of consultation or the process of the peoples' expressing their wishes on the question of accession-"Will that assembly decide the question of accession ? My Government's view is that, while the constituent assembly may, if it so desires, express an opinion on this question, it can take no decision on it." [536th meeting, p. 8.]

 

And, as I have said, Sir Benegal Rau was not only a distinguished representative of India before the Security Council but a very distinguished lawyer and a constitutional lawyer of the highest standing, both in India and in Pakistan before partition. And, taking both countries together, I do not think that even today I know anybody who has the standing in constitutional law that Sir Benegal Rau had. Then, on 29 March, he said:

 

"Some members of the Council appear to fear that in the process the Kashmir constituent assembly might express its opinion on the question of accession. The constituent assembly cannot be physically prevented from expressing its opinion on this question if it so chooses. But this opinion will not bind my Government or prejudice the position of this Council." [538th meeting, p. 3.1

 

Of course, these statements were made when this matter was brought to the notice of the Security Council. The Security Council adopted in this connexion a resolution on 30 March 1951, and this is the relevant portion :

 

"The Security Council.

 

"Reminding the Governments and authorities concerned of the principle embodied in the Security Council resolutions of 21 April 1948, 3 June 1948 and 14 March 1950 and the United Nations Commission for India and Pakistan resolutions of 13 August 1948 and 5 January 1949, that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations,

 

"Affirming that the convening of a constituent assembly as recommended by the General Council of the 'All Jammu and Kashmir National Conference, and any action that Assembly might attempt to take to determine the further shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with the above principle".

So the Security Council was quite clear. It said, "You may set up a constituent assembly but any action it takes in respect of the accession will have on effect at all."

 

I am reminded that Sir Benegal Rau had been constitutional adviser to the Indian Constituent Assembly before he was appointed India's representative to the United Nations.

 

There was a telegram sent by the President of the Security Council to the Foreign Ministers of India and Pakistan on 29 May 1951 which puts this matter absolutely beyond doubt. It states:

 

"Members of the Security Council, at its 548th meeting on 29 May 1951, have heard with satisfaction the assurances of the representative of India that any constituent assembly that may be established in Srinagar is not intended to prejudice the issues before the Security Council, or to come in its way.

 

"On the other hand, the two communications to me as President of the Council from the representatives of Pakistan set forth in documents S/2119 and S/2145, contain reports which, if they are correct, indicate that steps are being taken by the Yuvaraja of Jammu and Kashmir to convoke a constituent assembly, one function of which, according to Sheikh Abdulla, would be a 'decision on the further shape and affiliation of Kashmir'.

 

"It is the sense of the Security Council that these reports, if correct, would involve procedures which are in conflict with the commitments of the parties to determine the future accession of the State by a fair and impartial plebiscite conducted under United Nations auspices.

 

"It seems appropriate to recall the request contained in the resolution of 30 March that the parties create and maintain an atmosphere favourable to the promotion of further negotiations and to refrain from any action likely to prejudice a just and peaceful settlement' Then Council trusts that the Governments of India and Pakistan will do everything in their power to ensure that the authorities in Kashmir do not disregard the Council or act in a manner which would prejudice the determination of the further accession of the State in accordance with the procedure provided for in the resolutions of the Council and of the United Nations Commission for India and Pakistan."

 

Now it is contended: "That first election and then the two subsequent elections to the Assembly in Kashmir have been instruments for the free expression of the will of the people of Kashmir. What more is needed ?"

 

Then again, on 24 January 1957, the Security Council adopted a resolution in the course of which it said:

 

"Reminding the Governments and authorities concerned of the principle embodied in its resolutions of 21 April 1948, 3 June 1948, 14 March 1950 and 30 March 1951, and the United Nations Commission for India and Pakistan resolutions of 13 August 1948 and 5 January 1949, that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations.

 

"1. Reaffirms the affirmation in its resolution of 30 March 1951 and declares that the convening of a Constituent Assembly as recommended by the General Council of the 'All Jammu and Kashmir National Conference and any action that Assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire State or any part thereof, or action by the parties concerned in support of any such action by the Assembly, would not constitute a disposition of the State in accordance with the above principle."

 

How many times has an affirmation to be affirmed to be understood as being effective ?

 

At a press conference reported in the Hindustan Times of New Delhi on 14 March 1951 the Prime Minister of India said this :

 

"During the last three years or so, we have naturally thought of giving some kind of organized expression to the Government there"-that is, in Kashmir- "some popular legislature or something. Because of the troubles in the State, that could not be done. Ultimately, the State Government decided, quite rightly, they should have elected representatives out of whom a Cabinet might be chosen and which could also decide many other questions. If your question is whether this comes in the way of the Security Council of any decision, then it does not come in the way. We have said that quite clearly.

 

"The Constituent Assembly is essentially meant to give constitutional background-additional background- to the Government. Of course, nobody can prevent an Assembly like that from expressing its views on any matter. So far as we are concerned, we have given our word in regard to the plebiscite, and if the conditions are such as we have agreed to, we are perfectly prepared to go on with it".

 

Then the Prime Minister made a statement on April 1951, at Srinagar, in the heart of Kashmir, which is also reported in the Hindustan Times as follows:

 

"I do not understand the objections of certain countries to the proposed constituent assembly in Kashmir. It has been repeatedly made clear that it is an internal matter."

 

On 10 November 1951, at the 566th meeting of the Security Council, Sir Gladwyn Jebb quoted the following statement of the Prime Minister of India:

 

"We have made it perfectly clear in our statement in the Security Council that the Kashmir Constituent Assembly, so far as we are concerned, does [not come in the way of a decision by the Security Council: that stands completely."

 

In the Statesman of New Delhi of 22 June 1952 the following was said, and this also is a statement by the Prime Minister:

 

"When the Constituent Assembly [of Kashmir] met, it was convened in consultation with us and with the good will of the Government of India. We did not look upon it naturally as something that will settle the problem which is before the United Nations. We have given an assurance to the United Nations that we will abide by it.

 

"When the Security Council asked us about it, we made it clear to them again that the Kashmir Government had every right to have the Constituent Assembly frame the internal constitution, but so far as we were concerned, we would not be bound by their decision on the question before the Security Council.

 

"Observe the words, 'we were concerned'. We have given an assurance to the United Nations about, let us say, a plebiscite or whatever it is. We stand by it. We cannot get out of it because a third party does something. But that does not prevent the third party from doing something.

 

"When the Constituent Assembly met in Kashmir for the first time, I might inform you, it was their intention to pass a resolution forthwith confirming the accession to India. We asked them not to do it so as not to be embarrassed before the United Nations. Simply because of that, we told them, the fact of accession is there and, Naturally, you will have to face it in the course of your constitution. But why do something which might be interpreted by the United Nations people as trying to bypass them? So it was at our instance that they did not pass the resolution."

 

I will not say that it was at the Government of India's instance that they passed that resolution subsequently. But supposing that they did it of their own volition or at anybody else's suggestion, the principle is still the same.

 

Then, on 22 February 1954, the Prime Minister made a statement in the Indian Parliament, as follows:

 

"This process (of the Constituent Assembly in Kashmir farming a constitution for the State) started two or three years ago. We made it clear then that it is perfectly right, it is perfectly open to the people of Kashmir to frame their Constitution...but that so far as our international commitments were concerned, i.e., India's-we naturally would honour them, unless something else happened But the fact that the Constituent Assembly decided something was a fact, an important fact, because it represented the wishes of elected people in Kashmir. But it cannot come in the way of absolving our-selves from our international commitments, in regard to a plebiscite, in regard to anything. That was the position and that remains so. To ask me, as I have been asked by the Foreign Minister of Pakistan, to repudiate the Constituent Assembly's decision, is manifestly, if I might use the word with all respect, quite absurd. There is no question of my repudiating what the Constituent Assembly expresses as its wishes. But as I said, our international commitments remain, and we are going to proceed with them, in due course, always in consultation with the Government of Kashmir."

 

I did not mean anything more than this by "repudiation", but it does not matter -I am always talking about "absurdities". As a matter of fact, it has been reported that yesterday, in the Upper House of the Indian Parliament, the Prime Minister was pleased to remark that my statement before the Security Council on Friday was a bundle of lies and was based on falsehoods. Well, I have always respected the Prime Minister of India; I shall continue to respect him nevertheless. The only bundle I used was a bundle of his statements, which I quoted. If those are wrong, I was lying; but if those were right, then I was not uttering any lies.

 

Then, on 5 March 1954, the Prime Minister of India addressed a letter to the Prime Minister of Pakistan, as follows:

 

"Ever since the Constituent Assembly came into being, more than two years ago, our position in regard to it has been perfectly clear and has been stated in the Security. Council and elsewhere. We said then that the Constituent Assembly was perfectly free to decide, as it liked, in regard to the State's accession or other matters, but, so far as we were concerned, we would abide by our international commitments."

 

In answer to a question in the Indian Parliament on 25 February 1955, the Prime Minister said:

 

Question: "In view of the fact that a Kashmir Constituent Assembly has ratified the accession of the State of India, what will be the terms of discussion on Kashmir with the Pakistan Prime Minister ?

 

Answer: "A question like this cannot be solved unilaterally."

 

There are other statements, but I do not think that it is necessary to bring in any other people. Surely the Prime Minister's own word on behalf of his Government should be sufficient.

 

It has been said that these have been three elections in Kashmir: one in 1951, a second in 1957, a third in 1962. Without prejudice to the argument which I have already submitted to the Security Council on this point. I would invite it to examine what kind of elections they were, how free they were. How much can they be regarded as expressing the free wishes of the people of Kashmir with regard to accession, or with regard to any matter whatsoever?

 

This is what happened with regard to the 1951 elections, The official proclamation of the convening of a constituent assembly in Kashmir was issued by the Head of State of Indian occupied Kashmir on 30 April 1951. According to this proclamation, the assembly would be summoned in order to frame a constitution for the State. The first elections to the assembly were to be held in the Kashmir Valley on 22 September 1951. Forty-five seats of the assembly were assigned to the Kashmir Valley. All the forty-five nominees of the National Conference for the forty-five constituencies in the Kashmir Valley and the Dogra were declared to have been returned unopposed. Not one constituency was opposed. Well, either the people of Kashmir have been trained to a degree higher than the people were at the best time of the free city states of Greece, so that every one of them knows, who is the best person discharge a particular function and, when those persons were nominated, everyone said that he was perfect; or there was no freedom. Forty Five seats-not one contested. Therefore, no election. Wonderful !

 

People can sometimes overshoot the mark-and not only. overshoot the mark, but overshoot it by 360 degrees. No polling took place on the day fixed for the balloting. This was in contrast to the election of the State legislature which was held under the Maharajah's oppressive system. assembly too and he had a very oppressive government. And He had an event under him, in January 1946, when as many as twelve parties contested the election, here the nominees of one party only were in every instance returned unopposed. Not that they succeeded; they simply were returned unopposed. Nobody stood in opposition. And yet, nobody's nomination paper was declared valid. Even in Jammu, while the polling had to be held in October - this was the Kashmir Valley area- there were contests only in two constituencies out of thirty, where some independent candidates opposed the National Conference.

 

On 30 October 1951 The New York Times reported that, "even that opposition dropped down during the last moment". The net result was that seventy-three out of seventy-five of the candidates of the National Conference were declared to have been elected without opposition in the whole of the State.

 

In its issue of 14 June 1951, The Times of London commented on the elections of 1951 as follows:

 

"The National Conference won an absolute majority in the so-called Kashmir Constituent Assembly before the 'election' had been held at all. This almost farcical result `` why''almost `` ? Well, the British have always. been known for their under statements-"This almost farcical result of the introduction of adult suffrage in Sheikh Abdullah's part of Kashmir comes as no surprise to anyone who knows the country and the people.

 

She"-India-"contends that the Security Council has no right to interfere in the internal affairs of Kashmir by advocating the proposed 'National Convention of Sheikh Abdullah's partisans planned for September; that Indian troops are entitled to remain in Kashmir because it is legally part of India; The Security Council in Indian eyes, is 'wilfully ignorant' or misled by the propaganda of Pakistan or-fantastically-dominated by a sinister 'Anglo-American bloc' which is trying to make Kashmir the base for a revived 'imperialism'.

 

"They miss entirely the simple issue on which India's present differences with the Security Council really hinge. It is of the essence of the undertakings that India gave to the United Nations that the plebiscite shall be impartial and that neither side shall do anything to prejudice the free choice of the Kashmir people.

 

"In the light of this it is irrelevant to argue that Indian troops have a right to be in Kashmir while Pakistan troops have none; what matters is that the Kashmir people shall be freed from the pressure of both occupying forces. Nor does it matter whether Sheikh Abdullah is entitled to summon a meeting of his supporters and call it a National Convention; the important point is that if he does this under the aegis of India before the plebiscite is held he will gain a political advantage that will affect the result. Even if the letter of India's past undertakings could be reconciled by legal ingenuity with her present attitude, their whole spirit contradicts it

 

Now, what happened in the elections of 1957? In March 1957, elections were again held to the Assembly which was to succeed the Constituent Assembly. During these elections, 40 of 75 seats in the Assembly were secured by the National Conference, without opposition. The pro-Pakistan elements in Kashmir boycotted the elections. Only 8 out of 45 seats for the Kashmir Valley and Ladhkh were contested, with opposition taken. Complaints were voiced in the Indian Press regarding the conduct of these elections in Jammu in which the National Conference candidates were opposed by a Hindu opposition party.

 

What were the comments? First, what were the world comments? The New York Times of 8 March 1957 wrote:

 

"This is not an 'election' in any sense of the word. The term 'election' means a choice. Kashmir had none.

 

"What happened is no credit to India, no reflection of sentiment among the Kashmiris and no contribution to a solution of this thorny problem." The Manchester Guardian of 28 March 1957:

 

"If it was hoped that the elections in Kashmir might give the Government there a greater appearance of legality, the hope is fading. It does not look as if the elections are to be free. How could they be with Sheikh Abdullah a prisoner? If only eight of the forty-three seats from the Vale of Kashmir are being contested, the onlooker can draw his own conclusions."

 

The Economist of 6 April 1957:

 

"A painful contrast has been visible between India's splendid achievement in holding the biggest general elections in history in an atmosphere of freedom and fair play, and the deplorable way in which the subsequent elections in Indian-held Kashmir were rigged.

 

"In Kashmir the 'victory' of Mr. Bakshi's candidates was a solemn farce. Before the voting began they had secured. forty of seventy-five seats in the local assembly, thanks to the absence or disqualification of rival candidates, and with this safe majority in hand they have been cantering happily through the remaining contests.

 

"The main opposition group, whose leaders, including the deposed State Premier, Sheikh Abdullah, are still imprisoned without trial, boycotted the elections; and it was in any case impossible for any candidate who challenged the finality of India's acquisition of Kashmir to stand.

 

Mr. Bakshi's blot in India's copybook is a reminder that the existing state of affairs in Kashmir is also dangerous."

 

Next is the Organizer of 1 April 1957. This is a Hindu paper, issued from New Delhi. The writer certainly was not giving expression to any April Fool's joke, though it sounds like one and, if it had happened on 1 April it certainly would have been one : "Just when the counting of the heaps started" these are the heaps of ballots which had been placed on the tables "lights went off, as by previous arrangement. It is possible that ballots from one table were snatched and put on another.

 

"The Praja Parishad, in alliance with Harijan Mandal and Riyasti Akali Dal."-none of these is a Muslim party or organization-"contested all the twenty seats in Jammu against the National Conference, the party of Mr. Bakshi, The officials, from heads of departments to Patwaris (the lowest ranking sides) were working openly for the Government party. The Parishad ballot boxes were, in quite a few stations, placed upside down. When anybody tried to put them straight, the presiding officer shouted: 'Don't tamper with the boxes'."

 

You could not put your bailot in, because the opening for the ballot was down. If you wanted to put it in, the officer shouted "Don't tamper with the boxes". The report goes on :

 

"When voters left their ballot papers on top of the upside down boxes, the presiding officer put them into National Conference boxes.

 

"Thousands of bogus votes were cast for the National Conference, particularly after the scheduled closing time of 6 p.m. When Parishad polling agents challenged bogus voters, the presiding officers ignored the objections. Not a single impersonator was arrested."

 

This is a paper issued in India a Hindu paper. Pakistan had nothing to do with it.

 

We come now to the elections of 1962, the ones that have just been concluded. The third elections to the Assembly in Indian-occupied Kashmir were held in March 1962. The Plebiscite Front decided to boycott these elections. The Kashmir Political Conference refused to take part in these elections. The result was that thirty-four candidates of the National Conference were declared to have been elected unopposed in the Kashmir Valley and Ladakh, which have forty five constituencies. This is according to the report of the Statesman, New Delhi, of 27 February 1962. For the remaining eleven seats in the Valley the opposition parties, even those which are pro-Indian, decided to boycott the elections. This report is from the Indian Express, New Delhi, of 6 March 1962. In two constituencies in the Kashmir Valley, where the National Conference nominees were opposed by independent candidates they were defeated.

 

Now, what was the press comment? First, The Times of London of 5 February 1962: "Sheikh Abdullah's Plebiscite Front Party has decided to

 

boycott the Kashmir general election on 25 February. The party executive passed a unanimous resolution expressing the view that free and fair elections could not be expected in Kashmir unless political uncertainty was removed by a plebiscite. The resolution said there were no civil liberties in Kashmir. As all important opposition leaders had been gained or were on trial, the elections would be a farce.

 

"The Plebiscite Front did not take part in the general election five years ago or in any subsequent by-election. The Kashmir Political Conference, which advocates accession to Pakistan, is also not taking part in the forthcoming election. The field is thus left clear for political supporters of India."

 

The Manchester Guardian of 16 February 1962:

 

"The coming elections in Jammu and Kashmir will once again provide no test of the popular will. Candidates belonging to the ruling National Conference have been returned unopposed in thirty-three out of seventy-five State Assembly constituencies. Thirty-two these are in the predominantly Moslem Kashmir Valley, with one in Jammu. The position has improved, however, since 1957, when forty seats were not contested. In the whole of India only thirteen other State Assembly seats are uncontested.``

 

That is to say, in the rest of India, out of all the Provincial Assemblies, only thirteen seats were uncontested.

 

"Opposition politicians allege that Kashmir's surprising figures are due to intimidation and even kidnapping of opposition candidates to prevent them filing their papers. Official sources explain, according to a report here, that it is not considered odd for candidates in a mountainous terrain to withdraw for want of adequate resources".

 

"A political commentator in a leading Indian paper states that the permit-licence-raj is more effective in the Kashmir Valley than elsewhere in eliminating opposition, meaning that those who oppose the governing party get no indus trial licence or import permit. He adds: "And there is the peace brigade to deal with recalcitrants"."

 

The Statesman of New Delhi, 3 January 1962:

 

"The Chairman of the Praja Socialist Party, Mr. Asoka Mehta, will visit Jammu on 6 January to inaugurate his party's election campaign in Kashmir.

 

"The State PSP leader, Mr. Balraj Puri, in a statement today, alleged that Bakshi Ghulam Mohammed, addressing a public meeting at Dartral in Poonch district, on Saturday, "threatened to throw across the cease-fire line' anyone who dared to oppose his nominees in the elections." - This was the freedom of the elections-"He added: 'If the Election Commission is not able to persuade Kashmir's rulers to show fair play it should decline to be associated with a mock election to prevent the good name of Indian Democracy from being tarnished'." The following is from the Statesman of New Delhi, dated 23 March 1962:

 

"Mr. Balraj Puri, State Praja Socialist chief, who returned from Srinagar recently, said here today it was unfortunate that his request to the Election Commission to visit Kashmir Valley on the polling day to help avoid the 'repetition of Jammu irregularities', had not been granted.

 

"Mr. Puri alleged that apart from large-scale impersonation the ruling party had raised linguistic and communal slogans and threatened voters with the cancellation of their ration cards if they voted against party candidates.

 

"The Democratic National Conference has asked defeated candidates not to file election petitions.

 

"In a resolution released to the Press on Tuesday the Democratic National Conference said that the filing of election petitions might have been useful if complaints had been in a few constituencies, but when the whole election

 

'is false', 'the filing of petitions has become ineffective".

 

"Alleging many malpractices, it demanded that the election in the State should be declared void and a fresh election. ordered."

 

Here is an editorial in the Hindustan Times of 12 February 1962:

 

"In an unusually large number of constituencies thirty-two out of forty-three in Kashmir there will be no work for the Election Commissioner. The ruling National Conference party candidates were without a challenge on nomination day...Here in India, even the Prime Minister has to cope with several opponents, though all of them know that they have not the slenderest prospects of success against him. How then in Bakshi Ghulam Mohammed able to achieve this happy state of affairs in Kashmir? It is that the policies of his Government are so universally accepted that we might as well replace in his domain the process of election by a process of acclamation ?

 

"Public confidence in the free and fair nature of the election in Jammu and Kashmir will remain badly shaken unless there is a thorough-going investigation into the charges of malpractice which have been levelled by the opposition against Bakshi Saheb's Government."

 

I shall now quote from the Organizer of New Delhi of 12 March 1962:

 

"When immediately following the nomination stage thirty three candidates of the National Conference were returned to the State Assembly unopposed, misgivings were feebly. voiced in sections of the Indian Press that there was something 'fishy at the bottom' about the whole affair. But from what has been brought to light by now after the filling of more than three-fourths of the total number of seats, it can be said that this sordid scandal of Bakshi's regime is smelling not only at the bottom but is stinking all over.

 

...we wonder how he can explain that on a day it had been snowing, the five stations of Bhadarwah should have recorded a cent per cent poll, a phenomenal performance which the most enlightened and politically-conscious polling population of the United Kingdom itself envy! Bhadarwah is no stray example. In almost every constituency where the fight between the National Conference and the Praja Parishad looked a marginal one we invariably find one or two such instances of a remarkably high political enlightenment' of 90 to 95 per cent poll!

"For us the issue is how real is the Election Commission's jurisdiction over the elections in Jammu and Kashmir State? Does the writ of this august body on which our Constitution has enjoined the sacred duty of preserving democracy in the country run as effectively in Jammu and Kashmir as it does in the rest of India ?

 

"...The least that the Election Commissioner must do is to order an immediate probe into the plethora of allegations levelled.

 

"As in the 1957 elections, ballot papers were given to the officials before the polling began, to be put in the boxes of National Conference candidates in advance."

 

Then there is the report which appeared in the Hindustan Times of 5 April 1962:

 

"...The opposition parties are unanimous that their defeat was contrived not by legitimate means, but through open interference by the ruling party.

 

"The opposition suspicions were further proved correct when on the nomination day, the National Conference secured unopposed thirty-three seats in the valley. The wholesale rejection of opposition papers in these constituencies intrigued many. What went beyond ordinary imagination was the fact that in several constituencies where there were as many as six to seven nomination papers, as for instance in Mendhar, it was the National Conference nomince whose papers alone were found in order.

 

"The opposition has also rejected the statement that in the constituencies that went unopposed to the National Conference in Kashmir, there were no challengers. They argue that most of the opposition candidates were waylaid and forcibly prevented from attending the courts.

 

"There are several allegations which only an impartial inquiry can clear up. But that force was used against the opposition candidates cannot be denied since National Conference leaders have themselves claimed credit for having rescued the opposition candidate from Khanyar in Srinagar, who was waylaid and mercilessly beaten near the court premises on the nomination day.

 

"While the opposition was still recovering from this, there was yet another shock in store for it. This came in the form of the revelation of defective ballot boxes.

 

"Moreover, in the mountainous interior, where besides bad weather the difficulties of terrain would have contributed to the reduction in the overall size of the polling, the percentage of votes polled could not be as high as 77.3 in Ramban, 77.4 in Kishtwar, 76.9 in Arnas and 70.7 in Bhalesa. According to Parishad sources, in the Kishtwar constituency at several polling booths where snow was as deep as four to five feet, and the voters had to cover long distances to reach the polling booths, the polling figures were shown to have almost touched the 100 per cent mark!

 

"The opposition also feels baffled that while in most of the hotly contested constituencies in the rest of the country where the voter is more educated and conscious of his rights than in this State, the average poll could not exceed 60 per cent, in Jammu it went up to nearly 80 per cent. In Bishnah it was 84.5, in Ranbir Singh Pora 77.6, Miran Sahib 74.3. Darhal 81.6, Poonch 75.3, Naoshera 61.7 and Samba 73.4." Now these elections were held under the authority of the Bakski regime, the National Conference, and with the country occupied heavily by Indian military forces. It might be said, "Oh well, it is occupied by military forces, but the military forces never interfere with the elections' '. Anybody around this table can imagine what that means. With an Administration wedded to accession to India and a military force there for the purpose, among others, of keeping up the prestige of this Administration, and when the instances that have been observed, what would be the effect upon the voters? But anyway, here are some statements by Mr. Arthur Lall before the General Assembly on 18 August 1958, as to what a foreign force might mean in countries like Lebanon and Jordan, which I can assure the Council are very different, with respect to the freedom and independence of the population, from Kashmir. This is what Mr. Lall said:

 

"...moreover, these forces by their very presence-the presence of massive striking potential cannot but interfere in the normal political and other forms of expression of the life of the people. I do not have to dilate upon this. It is expecting too much of human beings, even of the brave Arab people, to think they can develop in freedom and in the manner which they would choose for themselves when they stand in the shadow cast by the massive presence of the armed strangers within their gates. And there is another important reason, another important aspect of this matter which must engage our attention. As the Prime Minister of India has said: 'Even if outside forces intervene with sincere and honest designs, they would have to side with one group or another in the country with consequences fraught with grave danger."

 

"In our view, the whole situation will continue to be full of danger and will continue to be explosive so long as foreign forces remain on the soil of Lebanon and Jordan. There can be no settlement, and indeed no talk of an acceptable, workable and dignified settlement, and no

return to normalcy until this element of foreign troops has been removed,"

 

Yet the Prime Minister had promised even as late as 4 June 1951, speaking in Srinagar to the people of Kashmir as reported in the Hindu of Madras of 5 June 1951:

 

"First of all I would like to remind you of the fateful day of 1947 when I came to Srinagar and gave a solemn assurance that the people of India would stand by Kashmir in her struggle. On that assurance, I shook Sheikh Abdullah's hand before the vast multitude that had gathered there. I want to repeat that the Government of India will stand by that pledge, whatever happens. That pledge itself stated that it is for the people of Kashmir to decide their fate without external interference. That assurance also remains and will continue."

 

What about these elections? Are these elections even a shadow of what had been promised to the people? What were the conditions in Kashmir? One amusing incident, were it not that it is also so tragic, might be quoted in that connexion from Mr. Josef Korbel's book Danger in Kashmir. Mr. Korbel was a member of the Commission, and on pages 148-149 of his book the following incident is reported:

 

The Commission went from one place to another encircled by the police and accompanied by thousands of wretched people. At one place a meeting was arranged and someone spoke. Groups of people among the crowd responded with 'India, Kashmir, Sheikh Abdullah, Zindabad! Long live the union between India and Kashmir!" Anyone who had lived in a totalitarian country immediately recognized that the methods of organizing a 'spontaneous' expression of the masses were the same as the totalitarian world over.

 

"At one moment a young man broke the police cordon, threw a paper in front of the Commission, and shouted in English, I want to tell you that these people oppress us!" The police took him away immediately, but one could still hear him shouting from among the crowd, 'Long live Pakistan!"

 

"This was a disturbing scene for the Commission, which had been assured that the people enjoyed political freedom in Kashmir. It asked its host, the district commissioner, to send for the man and to bring him before the Commission. A few minutes later a man appeared, but it was quite obviously not the young man who had spoken to us. When this fact was brought to the commissioner's attention, he insisted that it was the same person, but the substitute himself disrupted the attempted deception. 'Yes', he said, 'I am somebody else. My friend is in prison, but it does not matter; I can also tell you that we want to join Pakistan'."

 

So much for freedom of expression. This is so far as the elections are concerned. In a country where even the administration of justice is controlled by the Administration, where the judges are subordinate to the Administration's behest, how can anyone accept that the elections would be free? I will deal briefly, as an illustration, with Sheikh Abdullah's case. The Council is well aware of the position of Sheikh Abdullah as described by Prime Minister Nehru and by Mr. Ayyangar. He appeared before the Security Council, and the President of the Council this month must remember him very well. He made more than one speech before the Council. He was arrested on 9 August 1953 while still holding the office of Prime Minister of Kashmir and was put in jail. No charge was made against him. The imprisonment was carried out under the Security Act which dispensed with the legal necessity of charging a crime. On 8 January 1958 he was released. On 30 April 1958 he was rearrested. The press note issued by the State Government said that the action was taken because Sheikh Abdullah was "planning subversion and large-scale disorders" and was "a hazard to public security". On 23 October 1958 a complaint was filed against Sheikh Abdullah stating that he "conspired to overthrow the Government of Kashmir and to facilitate its annexation by Pakistan". The date of this alleged offence is interesting. It was given as "between 9 August 1953"-the day he was arrested and put in jail-"and 29 April 1958" when after a few weeks at liberty he had been put back in jail.

 

On 23 October 1958 the complaint was filed and under the procedure now prevailing in India and Pakistan commitment proceedings before a magistrate. That is to say, the evidence would be recorded and the magistrate would then have to consider whether there was prima facie evidence to commit him to trial. This is a preliminary to the trial itself, it is a judicial procedure. That started on 23 October 1958 and went on until 25 January 1962. I repeat, 23 October 1958 to 25 January 1962. He was then committed to the sessions "for trial". He was charged with "conspiracy to overthrow the Jammu and Kashmir Government and to facilitate the wrongful annexation of the territories of Jammu and Kashmir by Pakistan".

 

Now, one would have expected that once these wearisome proceedings before the committing magistrate were over and all the evidence produced against him was on record, the case would be sent to the session court, whereupon the latter would immediately start a trial. That happened on 23 January, but on 16 April the sessions judge to whom the case had been committed transferred it to another court. The trial has not yet begun. The complaint was filed on 23 October 1958 and the trial has not yet begun up to today, unless it has begun during the last few days. Of this we have no knowledge and I do not believe that it has yet begun, on 2 May 1962.

 

The charge against him before the sessions court, as stated by the special magistrate is this: he was charged under sections 121 A of the State Penal Code and 120 B, read with rule 32 of the State Security Rules, for having conspired to overthrow the State Government by criminal force and facilitating the wrongful annexation of the State of Jammu and Kashmir by Pakistan. He was further charged with creating among the people hate, contempt and disaffection against the State Government, creating communal ill-feeling and disharmony and disturbing peace and tranquility. If creating hatred, contempt and disaffection against the Government were an offence here, half the population of the United States would be in jail. The magistrate added that he and his co-defendants had also been charged with committing other prejudicial acts, with the assistance of Pakistan, between 9 August 1953 and 29 April 1958 in collaboration with nine absconding accused.

 

I shall not press the matter further; we are not trying. Sheikh Abdullah here but where the administration of justice has that political complexion that if they do not like a man-so far as they are concerned, let us say with good reason-this is the treatment to which he is subjected. They claim that the people have freely expressed their wishes with regard to accession and the matter is closed.

 

Now I come to another matter, and I will deal with it briefly. It has sometimes been said, "We cannot accept Pakistan as an equal party in this dispute. As a matter of fact, Pakistan is not a party to the question of accession at all." What would be the position of India in a case where the ruler, belonging to one community with the majority of the people belonging to another community, acceded to a Dominion the majority of whose people were of the same community as the ruler and not to the Dominion the majority of whose people were of the same community as the majority of people? This is the case in Kashmir, and they say that the only Government concerned is the Government to which the ruler acceded, that the other. Government has nothing to do with it.

 

But this is not what they said in a reverse case, the case of Junagadh which I mentioned at the previous meeting, where the Muslim ruler acceded to Pakistan. the majority of his subjects being Hindus, Now, what was the position of India with regard to that? Who was concerned? Which were the Governments concerned? According to them, the only Governments concerned were the Governments of India and of Junagadh. In regard to Kashmir, they say the only Governments concerned are those of India and of Kashmir. On the other hand, this is what they said with regard to Junagadh, in a telegram from the Governor-General of India to the Governor-General of Pakistan, dated 22 September 1947:

 

"The Pakistan Government have neither acknowledged receipt of our message nor replied to this or our previous dispatches on the subject. Instead the Pakistan Government has unilaterally proceeded to action which, it was made plain the Government of India could never and does not acquiesce in. Such acceptance of accession by Pakistan cannot but be regarded by the Government of India as an encroachment on India's sovereignty and territory and is inconsistent with the friendly relations that should exist between the two Dominions. This action of Pakistan is considered by the Government of India to be a clear attempt to cause disruption in the integrity of India by extending the influence and boundaries of the Dominion of Pakistan, in utter violation of the principles on which partition was agreed upon and effected. In these circumstances, I hope that it will be possible for you to prevail upon the Government of Pakistan to reconsider their attitude as regards the accession of Junagadh; but if the matter is not reconsidered, the responsibility for the consequences must, I am compelled to inform you, rest squarely on the shoulders of the Pakistan Government." That was Lord Mountbatten speaking.-"The Government of India are, however, still prepared to accept the verdict of the people of Junagadh, in the matter of accession, the plebiscite being carried out under the joint supervision of the Government of India"-and here one would expect and the Pakistan Government'"; but no, it is-"India and the Government of Junagadh." Pakistan has nothing to do with it. The State to which accession was made, therefore, and the reason why this accession was accepted, would have nothing to do with it. On this very basis, it could be said that India has nothing to do with the question of accession, with the question of the plebiscite in Kashmir.

 

It is argued too, on the other side, that Pakistan is no party. Pakistan has no party? Look at the agenda which the Security Council approved only today: "The India-Pakistan question". Look at the resolutions of the Security Council: "The dispute between India and Pakistan", "The situation between India and Pakistan". Look at the resolutions of the Council; even with regard to the plebiscite they have said: "by the Government of India and the Government of Pakistan". And now it is beginning to be said over the last few years in fact-that Pakistan is not really a party to this. It is only, I suppose, out of charity that we are even permitted to speak on this question.

 

But the Pakistan locus standi with regard to the disposition of this State has been recognized from the very first; otherwise why all this series of messages to us, assurances to us, pledges to the Government of Pakistan with regard to the disposition of this State: "This is not merely a promise to your Government but also to the people of Kashmir and to the world"? Here is a telegram dated 31 October 1947, addressed to the Prime Minister of Pakistan by the Prime Minister of India:

 

"Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are restored and leave the decision regarding the future of the State to the people of the State is not merely a promise to your Government but also to the people of Kashmir and to the

 

world." And how it is said: Pakistan has no locus standi. What locus standi has Pakistan in this matter? Then there was a statement by Mr. Ayyangar in the Security Council on 3 February 1948:

 

"......both Pakistan and India have interests in the question of accession, and therefore some agreement has to be reached between them." [239th meeting, p. 330.]

 

Is there no locus standi? Are we not a party ?

 

Earlier at the same meeting Mr. Ayyangar said this :

 

"Before I proceed I might say that, apart from the stoppage of fighting the two parties interested in the Jammu and Kashmir question-each for its own reason-are the insurgents, who want responsible government, and Pakistan, which wants the question of accession to be finally settled. As far as the insurgents are concerned, I have indicated what the Maharajah is prepared to have announced in his name as his decision. As the Security Council is aware, the Government of India is fully committed to the view that, after peace is restored and all people belonging to the State have returned there, a free plebiscite should be taken and the people should decide whether they wish to remain with India, to go over to Pakistan or to remain independent, if they choose to do so." [Ibid., pp. 328 329.]

 

So the parties before the Security Council certainly are India and Pakistan. But we agree-not only do we agree; we lay emphasis on the fact that the crux of the matter is the right of the people of Kashmir to decide freely and, in the words of the Prime Minister or India already quoted by me, "without any external interference" whether they wish to accede to Pakistan or to India. The behaviour or the misbehaviour of India or Pakistan, though it may call for correction of the situation, cannot operate to deprive the people of Kashmir of their right to make their free choice on the question of accession. I hope I have said it properly in the Security Council, that this question of accession, this question of aggression and this question of sovereignty were all taken into account by the Commission, and it was after all of them had been raised, and repeatedly raised, before the Commission that the two resolutions were formulated and were accepted by the two Governments. I have already shown that they are today really not relevant to the implementation of these resolutions at all. But assuming only for the sake of argument, but not conceding, that these questions have to be determined, as the representative of India keeps on insisting each time, how then can they be determined?

 

Accession, aggression, the determination of the parties' obligations and of any default committed in carrying them out, the passage of time-all of the questions that have been raised are susceptible of determination. Most of them are questions of law, some of them are questions of fact. One method of resolving a dispute of that character, involving questions of law and questions of fact, would be through arbitration. Efforts have been made to try to persuade India to have them decided through arbitration, and arbitration of the then-existing differences on the interpretation of part II of the Commission's resolution of 13 August 1948 was suggested. This was endorsed by an appeal by the President of the United States, Mr. Truman and the Prime Minister of the United Kingdom, Mr. Atlee, to the Prime Ministers of both India and Pakistan. Pakistan accepted this method of settling the differences; the reference is to the Commission's memorandum of 27 August 1948-but India rejected it. India rejected it on the ground, I think it was stated that they could not commit the fate of 4 million people. to arbitration. But nobody had suggested this: nobody had suggested that the question of accession to Pakistan or to India should be submitted to arbitration. Nobody is suggesting it today. What was suggested was the question of what those paragraphs of the resolution mean; what are the obligations of the parties? What has each to do? And these are questions which are susceptible of determination through arbitration or through judicial settlement. That was all that was suggested. But then it was also said: "But this would infringe upon our sovereignty". But there have been scores-I shall say that if one looked into it, perhaps hundreds of cases of international arbitration between sovereign States, where both parties were sovereign States, where there were disputes and they were settled through arbitration. One reference will suffice. I will read out article 51 of the Indian Constitution itself. This article states:

 

The State shall endeavour to

 

"(a) Promote international peace and security;

 

"b) Maintain just and honourable relations between nations;

 

"(c) Foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and

 

"(d) Encourage settlement of international disputes by arbitrations."

 

Not only is it not contrary to sovereignty, it is one of the directives of State policy in the Constitution of India.

 

Operative paragraphs 5 and 6 of the Security Council resolution of 30 March 1951 suggested arbitration. The text reads as follows:

 

"The Security Council,

 

"Instructs the United Nations Representative to report to the Security Council within three months from the date of his arrival on the sub-continent; if, at the time of this report, he has not affected demilitarization in accordance with paragraph 3 above, or obtained the agreement of the parties to a plan for effecting such demilitarization, the United Nations Representative shall report to the Security Council those points of difference between the parties in regard to the interpretation of the agreed resolutions of 13 August 1948 and 5 January 1949, which he considers must be resolved to enable such demilitarization to be carried out;

 

"Calls upon the parties, in the event of their discussions with the United Nations Representative failing in his opinion to result in full agreement, to accept arbitration upon all outstanding points of difference reported by the United Nations Representative in accordance with paragraph 5 above, such arbitration to be carried out by an arbitrator, or a panel of arbitrators, to be appointed by the President of the International Court of Justice after consultation with the parties".

 

That was in 1951. I might say, incidentally, that I was not then on the Court. The "fanatic", according to the Defence Minister of India, was not yet a member of the Court.

 

India rejected it, Pakistan accepted it. Then in April 1957, Mr. Gunnar Jarring's proposal was that the lack of implementation of Pakistan alleged by India might be determined by somebody, and that what needed to be done to rectify any alleged defaults that might be discovered might also be determined. That was accepted by Pakistan. The party that is charged with the default is eager to accept some method of determination. The party that charges default will not accept determination. Mr. Jarring's proposal was rejected by India.

 

Prime Minister Nehru's latest statement on arbitration in theory is hopeful and let's hope something might be built on that. It was reported in The New York Times of 22 March. 1962:

 

"On the question of arbitration of the border dispute with Communist China, Mr. Nehru said: 'If the circumstances are proper both parties agree and suitable arbitrators are found, I will not rule it out'. "Asked if this also held true for Kashmir, Mr. Nehru replied, 'In theory it applies to every place"."

 

That raises some hope.

 

The whole question was last considered by the Security. Council on 2 December 1957 [808th meeting] when it adopted the resolution of that date. Out of consideration for time, I will not read out to the Council the actual words of that resolution but I hope that the members will check it up and will read it as part of my submission to them.

 

In pursuance of this resolution, the United Nations Representative made a report dated 28 March 1958. That report still awaits the consideration of the Council. The recommendations made by the United Nations Representative in paragraph 20 of that report were accepted by the Government of Pakistan as set out in that section, and were rejected by the Government of India.

 

In the first instance it would be most proper and fitting that the United Nations Representative, who has laboured so hard to carry out the directives of the Security Council and to secure an arrangement between the parties through the implementation of the resolutions of the United Nations Commission for India and Pakistan so that a settlement might be reached, as laid down by the Security Council, through the democratic method of a fair and impartial plebiscite, should be requested by the Council to introduce his report formally and make such comments and observations as he might consider necessary or desirable, more particularly having regard to the period of over four years which has elapsed since the date of his report. Thereafter, one way of proceeding would be to start with the recommendations made by the United Nations Representative in paragraph 20 of his report. That would necessarily involve the consideration and examination of the reasons given by the Government of India for its refusal to accept the recommendations. Surely it should be beyond the resources of the Security Council to devise a method acceptable to the parties for such examination and consideration, which might ultimately lead to the recommendations of the United Nations Representative or some reasonable and mutually accepted variation thereof, as the basis for further progress. We urge very earnestly and strongly that such an effort be undertaken Should this effort fail, it would be necessary for the Security Council to consider how progress can be made. I respectfully urge the adoption for this purpose, that is to say, the consideration of how progress might be made of a procedure that was normal in the earlier stages of the consideration of the case by the Security Council. I will here quote Mr. Warren Austin's advice to the parties with regard to the procedure. Mr. Austin stated:

 

"It seems to me, in determining whether there is a situation which, if it were to continue, might lead to a dispute or to war, that we have before us an opportunity to make progress in the right direction, through the continuation of the entirely friendly and informal conference under the guidance of the President of the Security Council. My country thinks that these conference should be continued in the real spirit that animates India and Pakistan here, and that they should not be interfered with here by the necessary presentation of charges, counter charges, claims and so on that have to go into the record." [235th meeting p. 261.]

 

I would respectfully submit that speeches in a public sitting of the Security Council, though necessary and useful for many purposes, cannot by themselves bring about a meeting of minds. As a matter of fact, they often lead to a drawing apart of minds. If the members of the Security Council were to desire the President to get in touch with the parties with a view to making an effort to bridge the differences between them, that might show a way out.

 

Pakistan is quite agreeable to any method that may be suggested for determining: (a) the obligations of the parties under the UNCIP resolutions; (b) what is holding up progress on their implementation; (c) whether either of the parties is in default with regard to the fulfilment of its obligations (d) what needs to be done by either side to move the matter forward towards implementation.

 

If a determination of (c) above, that is to say, whether either of the parties is in default with regard to the fulfilment of its obligations, should disclose that Pakistan is in default in any of these respects, the default would be rectified through the speediest method at the earliest possible moment, so that the way may be opened toward full implementation of the resolutions. This is an undertaking that I submit to the Security Council on behalf of the Pakistan Government. I do trust and hope that India would be prepared to agree to the same, that is to say, in the event that a fair and impartial determination, upon the method of which agreement might be reached, should lead to the conclusion that Pakistan is in default with regard to A, B and C and that India is in default with regard to X, Y and Z, both Governments-and I have given an assurance on behalf of my Government-will, in the shortest possible period and in the speediest possible manner, rectify those defaults.

 

Now how could the determination take place? The United Nations Representative is available for making this determination. Nobody could be in a better position, as he has made a detailed study of the whole problem and knows it from A to Z. Pakistan would, however, be quite agreeable to any recognized international figure of undoubted integrity carrying out the task. If India should have any hesitation in accepting a personality from among the great Powers or from among any particular group of States, Pakistan would be agreeable to the selection being made from any region or group that would be acceptable to India for instance, from Asia or Africa.

 

"Wa akhiru da'wana anil hamdu lil lahi rabbil Alamin" "And the close of our cry will be: praise be to God, the cherisher and sustainer of the worlds." Mr. Krishna MENON (India): We have heard a long statement by the representative of Pakistan. In normal circumstances my delegation would have been prepared to answer it tomorrow. However, a great part of the statement was not quite audible. While the bulk of it deals with matters that have been before this Council for many years and have been answered in full, out of courtesy to the new members, and because certain alleged facts have been set out, we shall answer it in full. It would be fair to us and to the Council that I should read the text of the statement of the representative of Pakistan overnight, but it will not be available before tomorrow and therefore, if it is agreeable to the Council, we would like to answer tomorrow afternoon.

 

I should also submit that, while the matter is of great importance, this meeting has not been called on our initiative. The date was fixed after a long period of negotiation, and it is not possible for the Government of India to make available the services of a representative whom it considers suitable for a much longer time than was originally intended. I have other responsibilities, and I therefore have to leave the country on Friday evening. Therefore, I would make a sub mission tomorrow afternoon and do my best to confine it to one meeting, if the Council would allow me the liberty of drawing attention to the various paragraphs of previous statements in which all these statements have been fully answered. For those who are hearing the discussion for the first time, it might appear as if there were no answer to these questions. Therefore we shall try to adopt a method which may be more rational than a mere repetition.

 

If the Council could meet punctually at three o'clock it might be possible to finish it tomorrow afternoon as far as we are concerned.