11061949 --163 Text of the Letter dated 11 June 1949 from the Minister for Kashmir Affairs, Government of Pakistan Mr. Gurmani addressed the Chairman of the Commission, relating to the action of the Government of India inviting the Government of Jammu and Kashmir to nominate representatives to the Indian Constituent Assembly (UN Document No. S/AC.12/213)
11061949 --163 Text of the Letter dated 11 June 1949 from the Minister for Kashmir Affairs, Government of Pakistan Mr. Gurmani addressed the Chairman of the Commission, relating to the action of the Government of India inviting the Government of Jammu and Kashmir to nominate representatives to the Indian Constituent Assembly (UN Document No. S/AC.12/213)
I have the honour to draw the attention of the Commission to the situation which has been created by the action of the Government of India in inviting the Government of the State of Jammu and Kashmir to nominate four representatives. to the Indian Constituent Assembly.
As the Commission is aware, the keystone of the structure of a peaceful settlement of the Kashmir dispute is the acceptance by the Governments of India and Pakistan of the principle that the question of the accession of the State of Jammu and Kashmir to India or to Pakistan should be decided by the democratic method of a free and impartial plebiscite. This position has been recognized and accepted by the two Governments, the Security Council and the Commission, and forms the basis of the Commission's resolution of 13th August 1948 and 5 January 1949, which were accepted by the Governments of India and Pakistan.
The recent action of the Government of India referred to in paragraph 1 above is a clear violation of their international commitments and is contrary to the specific assurances given by them to the United Nations and Pakistan. for the peaceful settlement of the Kashmir dispute.
For facility of reference certain relevant extracts from the communications and pronouncements of the representatives of the Government of India are reproduced below to show the unqualified acceptance by the Government of India of the position that the question at issue is the accession of the State of Jammu and Kashmir to India or to Pakistan, and that this issue is to be decided by means of a free and impartial plebiscite organized and conducted by the United Nations.
In his letter dated 27 October 1947 in reply to the offer of accession by the Maharaja of Jammu and Kashmir, Lord Mountbatten, Governor-General of India, stated: "Consistent with their policy that in the case of any State where the issue of accession has been the subject of dispute the question of accession should be decided in accordance with the wishes of the people of the State, it is my Government's wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State's accessic should be settled by a reference to the people."
This was reiterated in the telegrams which the Prime Minister of India sent at this time to the Prime Ministers of the United Kingdom and Pakistan. In his telegram No. 402 Primin dated 27 October 1947 to the Prime Minister of the United Kingdom, which was repeated to the Prime Minister of Pakistan, Pandit Jawaharlal Nehru stated: "I should like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India. Our view which we have repeatedly made public is that the question of accession in any disputed territory or State must be decided in accordance with the wishes of the people and we adhere to this view."
In another telegram to the Prime Minister of Pakistan dated 6 November 1947, Mr. Nehru remarked: "I have stated our Government's policy and made it clear that we have no desire to impose our will on Kashmir but to leave the final decision to the people of Kashmir. I further stated that we have agreed to an impartial international agency like the United Nations supervising any referendum. This principle we are prepared to apply to any State where there is a dispute about accession."
Again in his telegram dated 8 November 1947, to the Prime Minister of Pakistan, the Prime Minister of India summed up the policy of the Government of India with regard to the Kashmir problem in the following words: "It will thus be seen that our proposals which we have repeatedly stated are: (1) that the Government of Pakistan should publicly undertake to do their utmost to compel the raiders to withdraw from Kashmir; (2) that the Government of India should repeat their declaration that they will withdraw their troops from Kashmir soil as soon as raiders have withdrawn and law and order are restored; (3) that the Governments of India and Pakistan should make a joint request to UNO to undertake a plebiscite in Kashmir at the earliest possible date."
This continued to be India's stand when it brought the Kashmir dispute before the Security Council. The following is an extract from paragraph 6 of the Government of India's complaint to the Security Council (annex 44): "But, in order to avoid any possible suggestion that India had utilized the State's immediate peril for her own political advantage, the Government of India made it clear that once the soil of the State had been cleared of the invader and normal conditions restored, its people would be free to decide their future by the recognized democratic method of a plebiscite or referendum which, in order to ensure complete impartiality, might be held under international auspices."
The same view was reiterated by the Indian representative in the debate in the Security Council. Speaking at the 234th meeting on 23 January 1948, Mr. M. C. Setalvad, the representative of India, observed as follows: "The Indian Government was careful, even though the request came from both [the Maharaja and Sheik Abdullah] to stipulate that it was accepting the accession only on the condition that later, when peace had been restored, the expression of the popular will sho be ascertained in a proper manner." A little later he added: "and the Indian Union on the request of both the Maharaja and this popular leader [reference is to Sheik Abdullah] has accepted the accession on the condition that I have already mentioned."
Again at the 26th meeting on 10 March 1948, Mr. Gopalaswami Ayyangar, representative of India, resuming the debate after having obtained an adjournment from the Security Council, said: "I shall take up the other points on which I thought at the time we had reached a kind of impasse [he is referring to the pre-adjournment developments]. These points are, roughly speaking, related to the ensuring of a free and impartial plebiscite on the question of accession of the Jammu and Kashmir State."
During the course of this very speech the representative of India went on to observe: "We do not want any pressure, any violence, any coercion used on even a single voter in the matter of his choice between India and Pakistan on the question of accession."
After a protracted debate, the Security Council adopted a resolution on 21 April 1948 (annex 46), the preamble of which inter alia noted with satisfaction "that both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or to Pakistan should be decided through the democratic method of a free and impartial plebiscite". The Government of India in their letter dated 5 May 1948 to the President of the Security Council [S/1100, annex 3] rejected this resolution on the ground that it was not possible for them "to implement those parts of the resolution against which their objections were clearly stated by their delegation." But at no stage during the debate in the Security Council, or thereafter, did the representatives of India object to the conclusion of the Security Council that the question in dispute was whether the State of Jammu and Kashmir should accede to India or to Pakistan, and that this matter should be decided through the democratic method of a free and impartial plebiscite.
The Commission is well aware of later developments, having itself been an active participant in them. After months of hard and patient labour the Commission succeeded in securing the agreement of the Governments of India and Pakistan to its resolution of 5 January 1949. Clause of the resolution reads as follows: "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." It is common ground that by accepting this resolution, the Governments of India and Pakistan have contracted an international agreement, which is binding on both.
On 27 May 1949, Mr. Gopalaswami Ayyangar, Minister for Transport (who had represented India before the Security Council) moved the following resolution in the Indian Constituent Assembly:
"That after paragraph 4 of the Schedule to the Constituent Assembly Rules, the following paragraph be inserted, namely:
"4a. Notwithstanding anything contained in paragraph 4, all the seats in the Assembly allotted to the State of Kashmir may be filled by nomination and the representatives of the State to be chosen to fill such seats may be nominated by the Ruler of Kashmir on the advice of his Prime Minister." In the course of the debate which followed, Mr. Gopala swami Ayyangar is reported to have observed as follows on the question of the accession of the State to India:
"The accession is complete. No doubt we have offered to have a plebiscite taken when the conditions are created for the holding of a proper, fair and impartial plebiscite. But that plebiscite is merely for the purpose of giving the people of the State the opportunity for expressing their will. The expression of their will should be only in the direction of whether they would ratify the accession that has already taken place, not ratify in the sense that act of ratification is necessary for the completion of the accession. But if the plebiscite produces a verdict which is against the continuance of accession to India of the Kashmir State, then what we are committed to is simply that we shall not stand in the way of Kashmir separating itself from India.
"Under the provisions of the Indian Independence Act, where a State accedes and subsequently wishes to get out of the act of accession, that is to separate itself from the main Dominion, it cannot be so except with the consent of that Dominion.
"The Government of India's commitment," Mr. Ayyangar added, "was simply that if the verdict of the plebiscite was against India, then India would not stand in the way of the wishes of the people of Kashmir being given effect to. So the statement that the accession is at present complete, is a perfectly correct description of the existing state of things. We are not bringing representatives of the State to this House for the purpose of placing their seal on the act of accession. We are giving them an opportunity for the exercise of the rights they have obtained by the fact that accession has already taken place."
Mr. Gopalaswami Avengers resolution was adopted by the Constituent Assembly, but not without misgivings in the minds of some members, who realized that this meant a reversal of the policy hitherto followed by the Government of India with regard to Kashmir. Maulana Hasrat Mohani (U.P.) is reported to have made the following observations:
"There was no need to send Kashmir representatives to the Constituent Assembly at this state." Referring to an earlier interruption by Pandit Nehru, he added: "Pandit Nehru got angry and said the Kashmir had acceded to India and, therefore, had every right to send its representatives here. I am doubtful whether he was absolutely right in saying so, because not once or twice, but many times he has said that the accession depends on the plebiscite. Now he has made up his mind, he has created difficulty and his move is that this plebiscite will never take place. Therefore he says that the accession is complete and there is no doubt about that."
"Even admitting that accession was complete, the question of nominating representatives to the Constituent Assembly did not arise until the status of the Kashmir Government and the status of the Maharaja were decided."
Another member of the Indian Constituent Assembly (Professor K. T. Shah) moved an amendment providing inter alia that the seats allocated to the Kashmir State should be filled only pending the holding of a plebiscite by the United Nations and without prejudice to the result of the plebiscite. The following extract from the report of the debate by an Indian news agency-the A.P.I.-throws an illuminating light on the attitude now adopted by the Government of India to the questions of accession and the plebiscite:
"When Professor Shah dealt with the portion of his amendment referring to the holding of a plebiscite and said that the accession of the State was not complete, a point of order was raised by Dr. Pattabhi Sitaramayya (the President of the Indian National Congress) whether it could be discussed, as accession of the State was complete and unconditional. Dr. Pattabhi was supported by Pandit Nehru (the Prime Minister of India), and some other members.
"Dr. Rajendra Prasad (the President of the Indian Constituent Assembly) agreed with the objection raised and said that the motion was concerned with the representation of the State in the Assembly and the method for it. He added that Professor Shah's point was irrelevant and ruled out of order the part in Professor Shah's amendment referring to the plebiscite."
It has hitherto been common ground between the Governments of Pakistan and India that the question at issue regarding Kashmir is that of the accession of the State to India or Pakistan, and that this is to be decided by means of a free and impartial plebiscite of the people of Jammu and Kashmir State. This was, as set out above, the basis of the resolution of the Security Council of 21 April 1948 and of the Commission's resolution of 5 January 1949, clause 1 of which states the position in clear and unambiguous terms. The action of the Government of India cited above and the recent pronouncements of its spokesmen, both in the Constituent Assembly and outside of it, show that India is now seeking to shift its position and to convert the question from one of accession to India or Pakistan into one of secession of the State from an accomplished, completed and unconditional accession to India.
The Pakistan Government submit that this action on the part of India is a flagrant violation of the international agreement embodied in the Commission's resolution of 5 January 1949 and that it would, if persisted in, destroy completely the basis upon which the Security Council and the Commission have built the structure of a peaceful settlement of the Kashmir dispute.
The Government of Pakistan further submit that India's attempt to prejudge the constitution of the State of Jammu and Kashmir and to invite the participation of the representatives of the State in framing the constitution of India before the question of accession of the State to India or to Pakistan has been decided, is clearly against the letter and spirit of the Commission's resolutions of 13 August 1948 and 5 January 1949, which, after having been accepted by India and Pakistan, constitute an international agreement binding on both countries. The agreement postulates the determination of the will of the people with regard to accession by means of a free and impartial plebiscite. Only after the State's accession to India or Pakistan has been determined can the question of the framing of its future constitution or of the participation of its representatives in the framing of the constitution of the Dominion concerned arise.
The Pakistan Government requested that the Commission. may be pleased to take prompt and effective action to remedy the situation created by the Government of India.
I would be grateful if the Commission would be so kind as to indicate to me for the information of the Pakistan Government what steps it proposes to take to stop the Government of India from pursuing a course of action which, besides complicating the delicate negotiations on which the Commission is at present engaged and jeopardizing the prospects of a peaceful settlement between India and Pakistan, is a challenge to the authority of the Commission, the Security Council and the United Nations. The Commission would agree that if an international agreement solemnly entered into is treated like a scrap of paper to be cast away by one of the contracting parties to suit its convenience, a dangerous precedent would be created in international relations. The Commission will also agree that the change in the policy of the Government of India with regard to the question of accession of the State of Jammu and Kashmir is likely to cause serious deterioration in Indo Pakistan relations and thus constitute a renewed threat to international peace and security.
The Pakistan Government requested the Commission to transmit a copy of this communication to the Security Council.
(Signed) Gurmani