18021949--12 Text of the Letter dated 18 February 1949 from the Secretary-General, Ministry of External Affairs and Commonwealth Relations, Government of India, Mr. G.S. Bajpal addressed to the Acting Chairman of the Commission (UN Document No. S/AC. 12/130)
18021949--12 Text of the Letter dated 18 February 1949 from the Secretary-General, Ministry of External Affairs and Commonwealth Relations, Government of India, Mr. G.S. Bajpal addressed to the Acting Chairman of the Commission (UN Document No. S/AC. 12/130)
When Mr. Lozano and you called on me. the 15th instant, you very kindly left with me a copy of the "Record note" of a meeting held at the residence of the Foreign Minister, Pakistan, in Karachi, on the 8th February (annex 1). I have shown this to the Prime Minister, who desires me to send you the following comments. The references are to paragraphs as numbered in the "Record note".
Paragraph 3. The Pakistan Minister for Kashmir Affairs 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. It is not clear to us how the lack of cooperation from either side could not be a practical obstacle to the holding of the plebiscite. If either party were to put serious obstacles in the way of the plebiscite being conducted, there would seem to be no means at the disposal of the Plebiscite Administrator or the Commission by which a free and fair plebiscite could be held in the face of such obstruction. This matter requires elucidation.
Paragraph 4. Referring to the powers of direction and supervision of the Plebiscite Administrator, Sir Mohammad Zafrulla Khan mentioned the discussions in Paris in November December 1948, in the course of which he apparently suggested that the Plebiscite Administrator should have powers of direction and supervision over the State forces and police, and over government officials of the revenue, forest, civil supplies and other departments to the extent that this might be necessary to organize and conduct the Plebiscite and to ensure its freedom and impartiality. The Commission had argued that it was unnecessary to do so, as clause B. 3 (b) of the draft proposal vested the Plebiscite Administrator with all the powers that he considered necessary for organizing and conducting the plebiscite and for ensuring its freedom and impartiality. In our aide-memoire No. 1 (S/1196, annex 4), commenting upon this particular clause of the plebiscite proposals as presented to us in Paris, "the Prime Minister pointed out that all the Plebiscite Administrator could in reason expect was that, for the purpose of organizing and conducting the plebiscite and ensuring its freedom and impartiality, the Government of Jammu and Kashmir should given him such assistance as he might require". We assume that this is still the intention of the Commission and that it is not intended that "the Plebiscite Administrator should have the powers of direction and supervision over the State forces and police, and over government officials of the revenue, forest, civil supplies and other departments to the extent that this was necessary to organize and conduct the plebiscite and to ensure its freedom and impartiality". Such power would definitely involve an infringement of the sovereignty of Jammu and Kashmir State and be tantamount to interference in the State's day-to-day administration. Having agreed to a free and impartial plebiscite, the Government of India and the Government of Jammu and Kashmir may be relied upon to give the Plebiscite Administrator the requisite assistance in ensuring that the plebiscite is free and impartial.
Paragraph 5. The disarming of Azad forces is really a matter of chronology. First, there must be a cease-fire and after that, a truce, as envisaged in parts I and II of the Commission's resolution of the 13th August 1948. After that, the condition precedent to arrangements for the holding of a plebiscite is the creation of conditions in which Kashmir nationals can return to the area now in the occupation of Azad Kashmir forces. So far as non-Muslims are concerned, such a movement will not take place until large-scale disarming of these forces has been carried out. We tried to make this clear to the Commission through Mr. Lozano in the course of our discussions last December, and I have emphasized this point in our recent meetings.
Paragraph 7. Sir Mohammad Zafrulla Khan ``could not agree that one of the parties to the dispute, namely, the Maharaja's Government, would have the right to determine whether or not a person had entered the State for a lawful purpose. In these and other similar matters, the decision must necessarily be taken by the Plebiscite Administrator". Mr. Lozano said, in reply, that "contentious cases would, no doubt, have to be referred to the Plebiscite Administrator for decision". As I have pointed out in paragraph 2 above, the only basis on which the plebiscite arrangements can work satisfactorily is that all the parties concerned should act in good faith. It follows that, in disputed cases, there will be discussion between the Plebiscite Administrator and the State authorities and normally an agreed solution will be reached. If there is no agreement, the matter can be referred to the Government of India or its representative so that a recommendation can be made to the Government of Jammu and Kashmir which they will be under an obligation to accept. To give the Plebiscite Administrator authority to override the Jammu and Kashmir Government would hardly be consistent with a position in which, according to the Commission's own resolution, the Administrator derives his authority from the Government of Jammu and Kashmir.
Paragraph 8. We do not wish to get involved in an argument as to whether or not Pakistan is a secular State. What we are anxious to ensure is that appeals to religious or communal fanaticism should not be permitted as a means of influencing votes. That such appeals are likely to be made is clear from the extracts printed in pages 15 to 20 of the "Recent Pakistan propaganda on Kashmir", copies of which have been sent to the Commission. We cannot impress too strongly on the Commission that, unless such appeals are effectively prevented, three will be no free and impartial plebiscite.
Paragraphs 9 and 10. It is not quite clear as to which part of the Security Council's resolution of the 5th January these refer. Presumably some of the matters referred to in paragraph 7 of the resolution are intended. To the extent that a difference of opinion between the Plebiscite Administrator and the Government of Jammu and Kashmir might have been in the mind of the Pakistan Foreign Minister, our general position is explained in what I have already said in paragraph 4 above with regard to item (vi), which is dealt with in paragraph 7 of the "Record note".
Paragraph 11. I tried to put our point of view to the Commission during our talk on the 14th February and again in my conversation with you and Mr. Lozano on the 15th. We have to examine two things: (a) "Local authorities" and (b) "surveillance". As regards the former, there are not only local officials to consider but also the headquarters organization of the so-called Azad Kashmir Government. When the August 13th resolution was under discussion, we made it clear to the Commission that the Sovereignty of the Government of Jammu and Kashmir State, even over the territory under the control of the "Azad Kashmir Government", could not be called into question, and the Commission accepted this view. The Commission now has to face the constitutional problem of not giving de facto recognition to this "Government" but also the practical problem of ensuring that guarantees of freedom of speech, etc., for which the Government of Jammu and Kashmir and the Government of India would be responsible in the part of the State under our control, do not mean only paper guarantees in "Azad territory" but are enforceable and enforced. This brings one to (b) "surveillance", which if a free and impartial plebiscite is to be taken, can only be interpreted as effective control by the Commission, What the Commission will, we hope, recognize is that, both theoretically and practically, there is a vacuum in the Azad Kashmir territory, since the Azad Kashmir Government is not an authority either legally recognized or legally responsible for the task of internal government or for discharging international obligations. Such a vacuum does not exist in the territory held by us because there are two legally recognized authorities, namely, the Government of Jammu and Kashmir and the Government of India, the former operating in the sphere of internal government and the latter responsible for the discharge of international obligations. In the Azad territory, this vacuum can only be filled by the Commission.
The foregoing comments have been offered in no spirit of controversy but only to clarify the position of the Government of India. The Commission will, I feel sure, agree that the next phase of its work should not be clouded by any. misunderstandings or obscurity of its intentions by India or Pakistan. It is for this reason that I have been asked to state at some length our views on points regarding which doubt may be said to exist. I shall, of course, be available for such discussion as the Commission may desire on one or more of these points.
(Signed) G.S. Bajpai