01101949 --121 Text of the Letter dated 1 October 1949 from the Minister for Kashmir Affairs, Government of Pakistan Mr. M.A. Gurmani addressed to the Chairman of the Commission concerning released documents on arbitration (UN Document No. St AC 12/276)
01101949 --121 Text of the Letter dated 1 October 1949 from the Minister for Kashmir Affairs, Government of Pakistan Mr. M.A. Gurmani addressed to the Chairman of the Commission concerning released documents on arbitration (UN Document No. St AC 12/276)
I have the honour to refer to the documents released by the Commission on 23rd September 1949, concerning the Commission's proposal for arbitration and the statement released to the press by the Commission on 22 September 1949, reviewing its activities in the Indo-Pakistan sub-continent (annex 41).
The Government of Pakistan note the Commission's statement in paragraph 6 of its letter dated 10 September 1949 to the Secretary-General of the Government of India (annex 38) to the effect that: "In suggesting arbitration as a means of reaching a prompt and effective implementation of the truce, the Commission has never intended that the commitments entered into for a peaceful solution of the dispute should be disregarded. The objective of a free and impartial plebiscite and the principles relating to the conditions which must be created in order that it be truly free and impartial, remain unquestioned."
The Government of Pakistan are of the same opinion, and regard a free and impartial plebiscite to determine whether the State of Jammu and Kashmir should accede to Pakistan or to India as the only basis for a peaceful solution of the Kashmir dispute. This objective can be achieved only if both parties to the dispute faithfully implement their obligations under the Commission's resolutions of 13 August 1948 and 5 January 1949, which after having been accepted by the Governments of India and Pakistan constitute an international agreement. The Pakistan Government reaffirm once again their desire and determination to implement their obligation under both these resolutions, and trust that the Commission and the Security Council would call upon the Government of India to do the same.
The Commission has already been fully apprised of the point of view of the Government of Pakistan on the various issues which have stood in the way of truce agreement. I find it nevertheless necessary to make certain observations on some of the statements made in Sir Girja Shankar Bajpai S letters dated the 21 August and 8 and 15 September 1949 (annexes 36 and 39) The Pakistan Government note with regret that the Government of India have thought fit to repeat allegations and insinuations against the Pakistan Government which were found to be baseless and unfounded in the course of the prolonged debates in the Security Council from January to April 1948. It is even more regrettable that in dealing with issues such as those relating to the Azad Kashmir forces and the northern areas of Jammu and Kashmir, the Government of India have tried to go back upon the position taken up by them in the past before the Commission, and to place in jeopardy the whole structure of a peaceful settlement worked out with such assiduous care and effort by the Security Council and the Commission.
In his letter dated 8 September 1949 (annex 36), Sir Girja Shakar Bajpai has accused Pakistan of aggression against the State of Jammu and Kashmir on the basis of India's contention that the State had acceded to India and was a part of India. The Commission is well aware of the history of the dispute in Kashmir which from the very beginning has centred round the question whether the State should accede to Pakistan or to India. The overwhelming majority of the
People of the State desired to accede to Pakistan in view of the geographical, cultural and economic unity of the State with Pakistan, and demonstrated this desire in no uncertain terms, immediately on the establishment of Pakistan. Although the Hindu Maharaja entered into a standstill agreement with Pakistan on 15th August 1947, in respect of all subjects hitherto dealt with by the British Government of India, he sought by force and fraud to bring about the accession of the State to India. In pursuance of this design a campaign of terror and intimidation was started in August 1947, on the model of the happenings in East Punjab and East Punjab States such as Patiala and Kapurthala This led to a revolt in the State, and fighting broke out on a large scale between the people of the State and Maharaja's force in September 1947. Events followed with extreme rapidity. Towards the end of October, a contingent of tribesmen came to the assistance of their brethren in the State. The Maharaja's authority collapsed and he fled from the capital. The Maharaja, who had been conspiring with India, asked for its military assistance. The Government of India, without making any reference to Pakistan which under the standstill agreement was responsible, inter alia, for the defence and external affairs of the Jammu and Kashmir State, flew in large forces to occupy and subjugate the State, thus entering upon a course of aggression against the people of Jammu and Kashmir, which is still continuing, and which can only end with the complete withdrawal of the Indian armed forces from the State. As a part of this conspiracy the Maharaja executed the so-called instrument of accession, which although totally devoid of all legal and moral validity, is continually used by India to bolster up its claim to the inclusion of Kashmir in India and to mask its aggression against the people of the State.
In the correspondence referred to above, Sir Girja Shankar Bajpai has raised once again the question of the legality of the so-called accession of the State of Jammu and Kashmir to India, which he maintains "the Commission has not questioned", and which in the view of the Government of India "is in fact and law beyond question". There is no basis whatsoever for either of these assumptions. As explained in greater detail in our answer to questions 10, 11 and 12 of the Commission's questionnaire, dated the 4th August 1948, the State of Jammu and Kashmir had executed a standstill agreement with Pakistan on 15 August 1947, which debarred the State from entering into any kind of negotiation or agreement. with any other country.
Secondly, the Maharaja of Jammu and Kashmir had no authority left to execute an instrument of accession on the 26 October 1947; because his people had successfully revolted, had overthrown his Government, and had compelled him to flee from the capital.
Thirdly, the act of accession was brought about by violence and fraud and as such it was invalid ab initio, and
Fourthly, the Maharaja's offer of accession was accepted by the Governor-General of India on the condition that as soon as law and order had been restored, the question of the accession of the State would be decided "by a reference to the people". The Indian Constitution Act does not recognize a conditional accession. The action of the Maharaja and of the Government of India has, therefore, no validity in law.
Sir Girja Shankar Bajpai 's observation that the legality of the State's accession to India has not been questioned by the Commission is misleading and wrong. According to both the Security Council and the Commission, the question in dispute in regard to the State of Jammu and Kashmir is whether the State should accede to India or to Pakistan. In the preamble to its resolution, dated 21st April 1948 (S/726], the Security Council noted "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". Clause 1 of the Commission's resolution of 5 January 1949 reiterates the same conclusion and states 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 accession of the State to India or to Pakistan is thus an open question which has yet to be decided, and not a settled fact. Sir Girja Shankar Bajpai's contention that the State has acceded and is a part of India begs the very question which is in dispute. The Commission is also aware of the manner in which the Government of India has sought to evade the obligations flowing from their acceptance of the Commission's resolution of 5 January 1949, by inviting the Maharaja to nominate four members to Indian Constituent Assembly. Reference is invited to my letter dated the 11th June 1949.
I regret having had to traverse again before the Commission the ground relating to some of the events preceding the settlement, but the many misstatements made in the recent correspondence addressed by the Government of India to the Commission have left me no choice in the matter. The events. preceding the settlement were fully taken into account by the Commission in formulating its resolutions of the 13 August 1948 and 5 January 1949, and their recital at this stage can serve no useful purpose. The only relevant issue at present is the implementation of the terms of settlement embodied in the Commission's resolutions.
It is hardly necessary for me to comment in detail on the various statements made on behalf of the Government of India concerning the question of the Azad Kashmir forces. The Pakistan Government's stand regarding this matter is well known to the Commission, and I am glad to observe that it has been vindicated by the Commission's own statement of 25 September 1949. There are, however, two points to which I might draw the Commission's attention. The omission of any reference to the Azad Kashmir forces in the Commission's resolution of 13 August 1948 was deliberate and the reasons therefore were fully explained by the Commission to both Governments. At the meeting held in New Delhi on 17 August 1948, Mr. Korbel, the Chairman of the Commission informed the Prime Minister of India that according to the and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite". The accession of the State to India or to Pakistan is thus an open question which has yet to be decided, and not a settled fact. Sir Girja Shankar Bajpai's contention that the State has acceded and is a part of India begs the very question which is in dispute. The Commission is also aware of the manner in which the Government of India has sought to evade the obligations flowing from their acceptance of the Commission's resolution of 5 January 1949, by inviting the Maharaja to nominate four members to Indian Constituent Assembly. Reference is invited to my letter dated the 11th June 1949.
I regret having had to traverse again before the Commission the ground relating to some of the events preceding the settlement, but the many misstatements made in the recent correspondence addressed by the Government of India to the Commission have left me no choice in the matter. The events. preceding the settlement were fully taken into account by the Commission in formulating its resolutions of the 13 August 1948 and 5 January 1949, and their recital at this stage can serve no useful purpose. The only relevant issue at present is the implementation of the terms of settlement embodied in the Commission's resolutions.
It is hardly necessary for me to comment in detail on the various statements made on behalf of the Government of India concerning the question of the Azad Kashmir forces. The Pakistan Government's stand regarding this matter is well known to the Commission, and I am glad to observe that it has been vindicated by the Commission's own statement of 25 September 1949. There are, however, two points to which I might draw the Commission's attention. The omission of any reference to the Azad Kashmir forces in the Commission's resolution of 13 August 1948 was deliberate and the reasons. therefore were fully explained by the Commission to both Governments. At the meeting held in New Delhi on 17 August 1948, Mr. Korbel, the Chairman of the Commission informed the Prime Minister of India that according to the provisions of the Commission's resolution "limited Government of India forces would remain and that on the other side only the Azad forces would remain in their present positions" [S/1100, annex 121. The Pakistan Government was informed on 19 September 1948, that "the resolution does not contemplate the disarmament or disbanding of Azad Kashmir forces" [S/1100, paragraph 108]. This position was not questioned by the Indian representatives and no demand was put forward by the Government of India before their acceptance of the Commission's resolutions of 13 August 1948 and 5 January 1949, for the disarmament or disbanding of the Azad Kashmir forces during the truce period. Indeed, even as late as 18th February 1949, the Government of India recognized that this question could arise only at the plebiscite stage. This is evident from paragraph 3 of Sir Girja Shankar Bajpai S letter dated 18th February 1949 (annex 7), which reads as follows:
"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."
In his letter dated 21 August 1948, Sir Girja Shankar Bajpai has tried to confuse the issue by quoting only the first two sentences of the passage quoted above and leaving out the next two really relevant sentences.
Reports and Recommendations: Documents in Support India and the Commission, which has only now become available to us, it appears that it was only when the Commission formulated its truce proposals in April 1949, that the Government of India deviated from their original position and contended that the withdrawal of the bulk of the Indian forces under part II of the Commission's resolution of 13 August 1948 should be conditional upon the disbandment and disarm ing of the Azad Kashmir forces. The Pakistan Government holds that this contention is totally unwarranted, and is an attempt at introducing a new condition into the settlement arrived between India and Pakistan for the peaceful resolution of the Kashmir dispute.
In his letter dated 8 September 1949 (annex 36), Sir Girja Shankar Bajpai has also tried to raise the bogey of a threat to the security of the Jammu and Kashmir State from the Azad Kashmir forces during the truce period These fears are wholly unwarranted. The Commission's resolutions of 13 August 1948 and 5 January 1949 are a carefully devised plan for the withdrawal and disposal of all armed forces in the State of Jammu and Kashmir in well-defined stages after taking into account all relevant considerations, including those relating to the security of the State. The Government of India, after having accepted this plan, are now attempting to upset it in order to retain their forces in the State and to delay and obstruct the plebiscite which is the object of the whole plan. The Pakistan Government wishes to reiterate their belief that the presence of Indian forces in the State of Jammu and Kashmir is the greatest obstacle to the restoration of normal life and liberty in the State and to the creation of the conditions in which a really free and impartial plebiscite could take place.
There is also no basis for Sir Girja Shankar Bajpai S statement that the number of the Azad Kashmir forces has grown considerably" since 5 January 1949. This is the first time that such an allegation has been made, and I wish to state categorically that it is wholly unfounded.
As regards the northern areas, the claim of the Government of India to post Indian garrisons in this area is not in accord with clause B. 2 of part II of the Commission's resolution of 13 August 1948, which permits the retention of Indian. troops only "within the lines in existence at the moment of the cease-fire". The cease-fire line has since been fixed and the "northern areas'' do not fall on the Indian side of the line.
This claim also conflicts with the assurance given by the Commission on 31 August 1948 that neither the Government. Neither India nor the Maharaja's Government will be permitted to send any military or civil officials to the "evacuated territory". In its letter dated 3 September 1948 to the Foreign Minister of Pakistan [S/1100, paragraph 90], the Commission explained that the term "evacuated territory" used in paragraph A. 3 of part II of the resolution of 13 August 1948 "refers to those territories in the State of Jammu and Kashmir which are at present under the effective control of the Pakistan High Command". The area north of the cease-fire line has been as much under the effective control of the Pakistan High Command as the area west of the cease-fire line.
The assurance that no civil or military official of the Government of India or of the Maharaja's Government would be allowed to cross into the evacuated territory "for the purpose of administration or control" was reiterated in paragraph 4 (d) of the Commission's letter dated 28 April 1949 to the Government of Pakistan (annex 23).
It is thus clear from the analysis made above that the claim of the Government of India for administrative and military control of northern areas is in direct conflict with the provisions of the Commission's Resolution of 13 August 1948, and is, therefore, untenable.
I should further point out that the Government of India abandoned this untenable claim long before the settlement between India and Pakistan regarding Kashmir was reached. As stated by the Commission in paragraph 80 of its interim report dated 9th November 1948 [S/1100]. Sir Girja Shankar Bajpai informed the Commission that India's acceptance of the 13 August resolution was not conditional upon acceptance by the Commission of the contents of Prime Minister of India's letter dated 20 August 1948 laying claim to administrative and military control over the "northern areas". A claim of this nature which is inconsistent and incompatible with the settlement and which the Government of India had themselves dropped before the settlement was reached cannot. be entertained at this stage.
I would not like to conclude without expressing the Pakistan Government's appreciation of the patience and determination shown by the Commission in the performance of its duties and expressing the hope that the Commission would persist in its efforts to secure prompt and effective implementation of its resolutions of 13 August 1948 and 5 January 1949.
(Signed) M.A. Gurmani