21111949 --129 Text of the Letter dated 21 November 1949 from the Secretary General, Ministry of External Affairs, Government of India Mr. G.S. Bajpai addressed the Chairman of the Commission commenting on Mr. Grant s letter of 1 October 1949 (UN Document No. S/AC. 12/284).
21111949 --129 Text of the Letter dated 21 November 1949 from the Secretary General, Ministry of External Affairs, Government of India Mr. G.S. Bajpai addressed the Chairman of the Commission commenting on Mr. Grant s letter of 1 October 1949 (UN Document No. S/AC. 12/284).
Under cover of his letter dated 12th October 1949, Mr. Colban sent us a copy of a letter, dated 1st October 1949, from the Minister for Kashmir Affairs, Government of Pakistan, to the Chairman the Commission concerning released documents on arbitration (annex 42). The Government of India regretted that, owing to the absence from India of the Prime Minister, it was not possible for them to send to the Commission their comments on Mr. Germany's letter earlier. They are now being submitted to the Commission. with the request that they should be given due weight by the Commission and, if Mr. Germany's letter is published, that this letter should also be given simultaneous and full publicity.
Mr. Gurmani's letter can be most conveniently dealt with under two broad heads:
A. The validity of the accession to India of the State. of Jammu and Kashmir, and the events leading up to that accession.
B. The position of the Government of India in regard to:
(a) The disbandment and disarming of the Azad Kashmir forces; and
(b) The treatment of the sparsely populated mountainous regions in the north of the State.
A. Accession of Jammu and Kashmir to India
The Pakistan Minister for Kashmir Affairs has stated:
(i) That the standstill agreement between Pakistan and the State debarred the latter from entering into an agreement with India.
(i) That the Maharaja of Jammu and Kashmir had no authority left to execute an instrument of accession.
(iii) That the act of accession was brought about by violence and fraud and was, therefore, invalid ab initio.
(iv) That the acceptance by India of the Maharaja's offer of accession was conditional and, therefore, invalid in law.
The reply of the Government of India to these contentions is set out below:
(1) The standstill agreement between Pakistan and the State debarred the latter from entering into an agreement with India.
Prior to the enactment of the Indian Independence Act of 1947, the Indian States were under the suzerainty of the British Crown, and as part of this relationship, the Crown was responsible for the conduct of their external relations and defence. These rights and responsibilities which, in the language of the Government of India Act, 1935, were described as "the functions of the Crown in its relation with Indian States'', were exercised by the Crown Representative in India Side by side with these functions of the Crown, the States had a number of agreements and administrative arrangements with the Central and Provincial Governments in India relating to matters of common concern like customs, transit and communications, coinage, currency and exchange regulations, posts and telegraphs, extradition, civil supplies and the like. A measure of coordination between these two distinct sets of functions and responsibilities was secured by the appointment of one and the same person to the post of Governor General of India and "His Majesty's representative for the exercise of the functions of the Crown in its relations. with Indian States". With the enactment of the Indian Independence Act of 1947, the suzerainty of His Majesty over the Indian States lapsed, and it was provided that along with it, the treaties and engagements in force on the date of the passing of the Act between His Majesty and the Indian States should lapse. States were thus released from the rights and obligations of Paramountcy which the British Crown possessed. This did not, however, dispose of the agreements relating to matters of common concern and administrative arrangements which the States had with the Central and Provincial. Governments in India. To deal with these arrangements, there was a proviso to sub-section (1) of section 7 of the Indian Independence Act of 1947, which said that "notwithstanding anything contained in paragraph (b) of this subsection, effect shall, as nearly as may be, continue to be given to the provisions of any such agreement as is therein referred to which relate to customs, transit and communications, posts and telegraphs, or other like matters until the provisions in question are denounced by the Ruler of the Indian State on the one hand or by the Dominion or provinces or other parts thereof concerned on the other hand, or are superseded by subsequent agreements".
The State of Jammu and Kashmir had a number of agreements with the pre-partition Government of India and the pre-partition Provincial Government of the Punjab. By virtue of the provision to sub-section (1) of section 7 of the Indian Independence Act, 1947, quoted above, these agreements automatically continued till they were either denounced by either party or replaced by subsequent agreements. On 12 August 1947, the Prime Minister of Jammu and Kashmir State telegraphed to the Pakistan Government that the Jammu and Kashmir Government would welcome standstill agreements with Pakistan on all matters on which these exist at present moment with the outgoing British Indian Government. It is suggested that existing arrangements should continue pending the settlement of details and formal execution of fresh agreements". On 16 August 1949, the Government of Pakistan replied: "Your telegram of the 12th. The Government of Pakistan agrees to have a standstill agreement with the Government of Jammu and Kashmir for the continuance of existing arrangements pending settlement of details and formalities. execution of fresh agreements." The agreements referred to in the telegram of the Jammu and Kashmir Government were agreements about matters like customs, communications, posts and telegraphs, civil supplies and the like. There was no question whatsoever of these agreements covering foreign relations or defence.
Paragraph 15 of document III, which was presented to the Security Council by Sir Mohammad Zafrulla Khan with his letter of January 15, 1948 [S/1100, annex 6], as a reply to India's complaint to the Security Council, states that "on 15 August 1947, Jammu and Kashmir State, like other States, was free to accede or not to accede to either Dominion. It entered into a standstill agreement with Pakistan under which inter alia the administration of posts and telegraphs services was entrusted to Pakistan". Agaia, in his speech to the Security Council on January 17, 1948 [229th meeting], Sir Mohammad Zafrulla Khan said: "I explained yesterday to the Security Council what the standstill agreements mean. Kashmir had arrived at a standstill agreement with Pakistan with regard to her communications, supplies, and post office and telegraphic arrangements." It is inconceivable that, if the Government of Pakistan had considered defence and foreign relations to be covered by this standstill agreement, they would have failed to urge this when the Kashmir dispute was debated at length before the Security Council from January to April 1948. In any case, the constitutional position explained earlier in this letter should dispose of the new claim that the standstill agreement between the State and Pakistan debarred the State from lawfully acceding to India.
It is not irrelevant, in this connection, to mention that on the date on which the Government of Jammu and Kashmir State approached the Pakistan Government with the request that the two enter into standstill agreements, a similar request was addressed to the Government of India. The Government of India invited the State to send an authorized representative to New Delhi to discuss the matter. Owing to changes in the personnel of the State Government and, subsequently, the invasion of the State, this request could not be complied with. That the Jammu and Kashmir State should have simultaneously asked both Pakistan and India to enter into standstill agreements which involved control of the State's foreign relations and defence has only to be mentioned to be dismissed as impossible.
(ii) and (iii) The Maharaja had no authority left to execute an instrument of accession and the accession was brought about by violence and fraud.
As regards (ii) and (iii), a brief recapitulation of some of the events before accession provides a sufficient answer. To take first the charge (by no means new) that the accession was obtained by violence and fraud. On the transfer of power to India and Pakistan the State of Jammu and Kashmir became free to accede to either country. The State executed a standstill agreement with Pakistan as an interim measure to continue the arrangements on administrative matters which already existed. In violation of this agreement Pakistan first imposed what amounted to an economic blockade on the State. Subsequently, it aided and abetted an invasion of the territory of the State. The invaders consisted of tribesmen, members of regular Pakistan forces whose presence had to be explained on some such excuse as their being "on leave", and a number of inhabitants of the western part of the State, e g., Poonch. In their march through the valley of Kashmir, the marauders spared nobody. If Mr. Germany's argument that the standstill agreement into which Kashmir entered with Pakistan covered defence and external relations is correct, all that India need have done was to accept the request for a similar agreement made by the State Government to the Government of India on the same date that the request for such an agreement was addressed to Pakistan. By doing so, India would have had no need to resort, as alleged by the Pakistan Minister, to force and fraud to obtain Kashmir's accession subsequently. As already stated, however, there is no substance in the argument that the standstill agreement included the subjects of external relations and defence. India sent forces into Kashmir at short notice and solely for the purpose of protecting the State against an extension of the destructive activities of the invaders, an extension which would have created a situation between India and Pakistan that could only have resulted in war. If any party used force to secure the accession of Jammu and Kashmir it was Pakistan; if any party practised fraud to secure that accession, again it was Pakistan. It is difficult to describe, by any other word, the arguments that Pakistan has used to explain away its share in the invasion of the State which led to the present dispute.
The contention that the Maharaja of Jammu and Kashmir had no authority to execute accession and that this accession was invalid ab initio has, in an instrument of its legal and constitutional aspect, been dealt with under A. (paragraphs 4, 5 and 6 supra). It is difficult to understand why the Maharaja, faced with invasion, had no authority to turn to a friendly neighbour for aid which accession would make lawful. That this request for accession had the support of Sheik Abdullah, leader of the most representative popular party in the State, and that the people of the State offered such resistance as lay in their power to the invaders should be sufficient evidence of the support which the demand for accession had, not only from the Ruler but from the majority of the inhabitants of the State.
It seems worthwhile to comment also on Mr. Gurmani's. assertion made in paragraph 4 of his letter that "the overwhelming majority of the people of the State desire to accede to Pakistan". The free will of the people has yet to be ascertained. It is not without significance, however, that when the invaders came near Srinagar in October 1947, the local population rose almost to a man to resist them, even though it was practically unarmed. If even a fraction of this population had been in sympathy with the invaders, it could have rendered impossible, by damaging the airport, the landing of the Indian forces that went to their rescue.
As regards the contention in (iv), namely that the accession of the State to India was invalid because its acceptance was conditional, the Commission's attention is drawn to the following passage from the statement of Shri Gopalaswami Ayyangar made to the Security Council [242th meeting]:
"The Instrument of Accession is a document complete in itself. To the best of my memory the Instrument, in the case of Kashmir, does not contain any condition. It does not state that the accession is provisional. The commitment which the Government of India made for themselves on the question of ascertaining the wishes of the people was contained in a letter accompanying the accepted Instrument of Accession. The Government of India is certainly bound by its commitment, but it. would be wrong to call the accession itself a provisional accession."
The accession became complete and operative on 26 October 1947, the date on which the relevant document was signed. Under section 2 of the Independence of India Act, any Indian State was at liberty to accede to either Dominion or to remain independent. If a State did accede to a Dominion, it could not legally withdraw from that accession except with the permission of the Dominion to which it had acceded. The effect of the Government of India's declaration that, if the vote of the people went against accession to India, India would release Kashmir from the accession was not to modify in any way the legal position, but only to clarify India's declared policy that it would, in the matter of accession be ultimately guided by the freely declared will of the people of the State.
The Pakistan Minister has also sought to deduce from the preamble to the resolution of the Security Council, dated 21 April 1948, that the words "that the 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" signify that "the accession of this State to India or Pakistan was an open question". As has already been explained above this view is legally untenable. According to the Government of India's understanding, neither the Council nor the Commission has questioned the legality of the accession of the Jammu and Kashmir State to India. In the opinion of the Government of India, the words quoted from the preamble do no more than express approval of the method of plebiscite as a democratic way of settling the question whether or not the State should continue. its accession to India or, in the alternative, should accede to Pakistan.
Before leaving the subject of accession, the Pakistan Minister's complaint that "the Government of India have 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 the Indian Constituent Assembly" might also be dealt with until the people of the State decide otherwise, the State, in the opinion of the Government of India, remains legally acceded to India. While the Constitution of India, which, inter alia, provides for the relations of acceding States to the Government of India was under consideration, it would have been unfair to the Government and people of State of Jammu and Kashmir to deny them the opportunity of participating in the discussion of that constitution. Such participation was not intended to and does not, in fact, alter the Government of India's determination to abide, in the matter of accession, by the freely declared will of the people of Jammu and Kashmir. Should that will be against the State continuing to be part of India, if and when it comes to be expressed in a constitutional way under conditions of peace and impartiality the representation of the State in the Indian Parliament would automatically cease and the provisions of the Constitution of India that. govern the relations of the State of Jammu and Kashmir with the Union of India will also cease to operate.
B. (a) Disbandment and disarming of the Azad Kashmir forces
To the Pakistan Minister "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 disarming of the Azad Kashmir forces''. The Commission should, in the light of their various discussions with representatives of the Government of India and their correspondence with that Government, be aware of the correct position. It is untrue to suggest, as Mr. Gurmani has done, that the Government of India have made an attempt to introduce a new condition into the settlement reached between "India and Pakistan for the peaceful resolution of the Kashmir dispute". The Government of India's view of the Commission's two resolutions of 13 August 1948, and 5 January 1949, respectively is set out clearly in the related correspondence and records of discussions between the Commission or its representatives and the Government of India In accepting the resolution of 13 August 1948, the paramount obligation of the Government of India to ensure the security of the State was emphasized in unequivocal terms The request made to Mr. Lozano in December 1948 by the Prime Minister for the disbandment and disarming of the "Azad Kashmir'' forces was prompted as much by the need of security for the State as by the additional consideration arising out of the resolution of 5 January, then under discussion in draft form, that the proposed plebiscite should be held, under conditions in which those who had left the so-called Azad Kashmir territory should be able to return to that area to exercise their vote freely and without fear. Neither condition could be satisfied if the "Azad Kashmir'' forces-whose number, according to Pakistan's own admission, made in February 1949, has swollen to thirty-two battalions, and whose effectiveness as a fighting force must have greatly increased as a result of their having been brought under the operational control of Pakistan Army-were to remain untouched. India's insistence that the phasing of the withdrawal of its own forces must be linked with the adoption of practical steps to effect the large-scale disbanding and disarming of the "Azad Kashmır'' forces was not, as suggested by the Pakistan Minister, an attempt to modify the resolution of 13 August 1948, but an inevitable consequence of the change in the strength and quality of these forces and, therefore, fully consistent with the understanding on which the Government of India accepted the resolution, viz, that they would be free to take suitable measures to discharge, effectively, their obligation to maintain the security of the State.
The Pakistan Minister's interpretation of paragraph 3 of my letter dated 18 February 1949, is supported neither by the quotations made by him from that letter nor by the position consistently taken up by the Government of India in this matter. All that the words quoted by the Minister intended to convey was that after the cease-fire, and before the plebiscite could actually be held, conditions must be created in which Kashmir nationals could return to the area now in the occupation of "Azad Kashmir" forces. The period after the cease-fire, up to and including the period covering the plebiscite, during which there were no hostilities, could only be described by the word "truce". Consistently with the Commission's agreement that there should be large-scale disbandment and disarming of the "Azad Kashmir'' forces before Kashmir nationals who had left the so-called Azad Kashmir area could return to that area, such disbandment and disarming had to begin well in advance of the plebiscite. From the standpoint of the security of the State, effective measures for such disbandment and disarming had to be devised and adequate arrangements made for their implementation before any large-scale withdrawal of Indian forces from the State could start. The quotation from my letter, dated 18 February 1949, as amplified by the Pakistan Minister, conveys this meaning and is not rationally susceptible to any other interpretation. The suggestion that I sought "to confuse the issue by quoting only the first two sentences of the passage" has no basis in logic or fact.
B. (b) The northern areas
The Pakistan Minister for Kashmir has argued, in effect, that both as regards administration and defence, it was the Commission's intention that the sparsely populated and mountainous regions in the State should be treated on the same footing as the so-called Azad Kashmir area, referred to in the Commission's resolution of 13 August 1948. Mr. Korbel's letter of 25 August 1948 [S/1100, paragraph 81], in reply to the Prime Minister's letter of 20 August 1948 [S/1100, paragraph 80], on the subject of these should be sufficient to negate this extraordinary interpretation. Had the Commission intended, as urged by Mr. Gurmani, "that neither the Government of India nor the Maharaja's Government will be permitted to send any military or civil officials to the 'evacuated territory' into the sparsely populated and mountainous northern regions, the Commission would have said so instead of stating, as Mr. Korbel did, "that the question raised in your letter (the Prime Minister's letter, dated 20 August 1948) could be considered in the implementation of the resolution".
Both as regards the disbandment and the disarming of the "Azad Kashmir '' forces and the question of the northern areas, the Pakistan Minister for Kashmir Affairs has only. reaffirmed the view of the Government of Pakistan that the resolution of 13 August 1948, was intended by the Commission to apply, not to the conditions prevalent in August 1948, but to the situation of today. That the refusal of the Government of India to accept this view can legitimately be regarded as evidence of their desire to evade any of their obligations is wholly unjustified. The Government of India stands by every commitment that they have made; only the fulfilment of those commitments must be related to facts as they are and not sought to be adjusted to false and fanciful arguments.
(Signed) G.S. Bajpai
Secretary-General