ISSN 2078-7391

EDUCOLOGY
Vol. 2 Oct. — Dec. 2010_______________ Issue IV

Department of Education
FEDERAL URDU UNIVERSITY
ABDUL HAQ CAMPUS, KARACHI.
Educology 5

THE LEGALITY OF PAKISTAN AND INDIAN VIEW

POINTS OVER KASHMIR DISPUTE (An Analysis)
Dr. Mamnoon Ahmad Khan
Assistant Professor
Department of International Relations
Federal Urdu University Karachi
Abstract
Kashmir Dispute is the bone of contention between the two neighboring
countries Pakistan and India. For a better understanding of Kashmir issue
we must be well aware the views of Pakistani and Indian governments regarding
the Kashmir dispute. After having the thorough understanding of the issue I
have tried to analyze the view points of both governments on the Kashmir
issue. From the origin of Kashmir Dispute up till now Kashmiri nation has
been denied to participate in any form of negotiations for solving this decade
long dispute. In my research paper I have tried to -find out the view point of
Kashmir is as a party to the Kashmir Dispute. History about the Kashmir
conflict has been distorted so much that it has become enormously difficult for
a common man to differentiate between the aggressor and the victim. In my
research paper I have tried my best for presenting a true and just picture of
Kashmir conflict by analyzing the view points of all the three parties involved
in this issue, Pakistan, India and Kashmiri people.
PAKISTAN'S VIEW POINT
The Pakistan position was based on the contention that the accession of the State of
Jammu and Kashmir to India was illegal and, therefore there was no basis whatsoever for
India's claim that the legality of the accession was 'actually a law beyond question'. The
state of Jammu Kashmir had executed a Standstill Agreement with Pakistan on 15th
August 1947 which disqualified the State from entering into any kind of cooperation or
agreement with any other country.
Moreover, Pakistan maintained that the Maharaja of Jammu and Kashmir had no power
left to implement an instrument of accession on 26 the October 1947 because the people
had successfully revolted, had overthrown his government and had forced him to flee
from Srinagar, the capital. The act of accession was brought by aggression and deception
and as such it was invalid from the beginning. The Maharaja's offer of accession was
accepted by the Governor- General of India, Lord Mountbatten, on the circumstance 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. Pakistan also understood that the
freedom movement of Kashmiris was native and
impulsive, as a result of domination and misrule by the Maharaja's Government. The
Educology 6
OP

tribal incursions were likewise spontaneous and arose as the result of reports of the
violence and cruelties perpetrated on the Muslim people of Kashmir and East Punjab. The
entry of Pakistani forces into Kashmir was necessary in order to defend its own territory
from attack by Indian forces, to stem the movement of large numbers of refugees driven
before the Indian army into Pakistan, and in order to prevent the Government of India
from presenting the world with a fait accompli by taking position of the entire state by
force.
`It is Pakistan opinion that her action in lending assistance to the people of Kashmir is far
less open to condemnation than was India's interference at the request of an oppressive
ruler. Pakistan considers herself as having equal standing with the government of India
and entitled as a party to the dispute, to equal rights and considerations."

INDIA'S VIEW POINT

The roots of the Kashmir Dispute are deep; accomplished the third and final report of
UNCIP, which made three visits to the sub-continent between 148 and 1979. 'Sturdy
under currents, political, economic, religious-in both dominions have acted, and do
proceed, against an easy and prompt solution. It is imperative that a settlement of the
Kashmir issue be reached.'2 But the individual positions of India and Pakistan, which the
Commission highlighted, did not make for an easy solution and the terms of article 35,
under which India had referred the issue to the United Nations, did not give the United
Nations any consent to enforce a solution, only to make recommendations. Then as now,
the Indian Government painstaking itself to be in legal position of the state of Jammu and
Kashmir by virtue of the Instrument of Accession of October signed by the Maharaja and
the then governor-general, Lord Mountbatten. This basic principle constituted the
legitimacy of India's presence in the state and of her control over it. The assistance which
Pakistan gave to the tribesmen, who invaded the state, was, according to the Indians,
therefore an aggressive act and the participation of the Pakistani regular army was an
offensive of Indian territory. India observed that her armies were in Kashmir as a matter
of right; her control of the defence, communication and external affairs of the state was
as a direct result of the act of accession.

Pakistan therefore was regarded as having no 'locus standi' in Kashmir. Since India was
liable for the security of the state the problem of demilitarization had to take into account
the importance leaving in the state sufficient Indian and state forces to safeguard the
state's security. From an Indian viewpoint, the plebiscite, to which Nehru had agreed,
would be to verify the accession, which was, in all respect, already absolute. As the
United Nation Commission reported: 'the basic feature of India's place in her disputation
that she is in Kashmir by right, and that Pakistan cannot seek to equal footing with India
in the dispute.'3 Pakistan was unlawfully in Kashmir and had no rights in the matter. The
Freedom forces should be disbanded and disarmed because they comprised the forces,
which were in uprising against the government of the state.
Educology 7
OP

tribal incursions were likewise spontaneous and arose as the result of reports of the
violence and cruelties perpetrated on the Muslim people of Kashmir and East Punjab. The
entry of Pakistani forces into Kashmir was necessary in order to defend its own territory
from attack by Indian forces, to stem the movement of large numbers of refugees driven
before the Indian army into Pakistan, and in order to prevent the Government of India
from presenting the world with a fait accompli by taking position of the entire state by
force.
`It is Pakistan opinion that her action in lending assistance to the people of Kashmir is far
less open to condemnation than was India's interference at the request of an oppressive
ruler. Pakistan considers herself as having equal standing with the government of India
and entitled as a party to the dispute, to equal rights and considerations."

INDIA'S VIEW POINT

The roots of the Kashmir Dispute are deep; accomplished the third and final report of
UNCIP, which made three visits to the sub-continent between 148 and 1979. 'Sturdy
under currents, political, economic, religious-in both dominions have acted, and do
proceed, against an easy and prompt solution. It is imperative that a settlement of the
Kashmir issue be reached.'2 But the individual positions of India and Pakistan, which the
Commission highlighted, did not make for an easy solution and the terms of article 35,
under which India had referred the issue to the United Nations, did not give the United
Nations any consent to enforce a solution, only to make recommendations. Then as now,
the Indian Government painstaking itself to be in legal position of the state of Jammu and
Kashmir by virtue of the Instrument of Accession of October signed by the Maharaja and
the then governor-general, Lord Mountbatten. This basic principle constituted the
legitimacy of India's presence in the state and of her control over it. The assistance which
Pakistan gave to the tribesmen, who invaded the state, was, according to the Indians,
therefore an aggressive act and the participation of the Pakistani regular army was an
offensive of Indian territory. India observed that her armies were in Kashmir as a matter
of right; her control of the defence, communication and external affairs of the state was
as a direct result of the act of accession.

Pakistan therefore was regarded as having no 'locus standi' in Kashmir. Since India was
liable for the security of the state the problem of demilitarization had to take into account
the importance leaving in the state sufficient Indian and state forces to safeguard the
state's security. From an Indian viewpoint, the plebiscite, to which Nehru had agreed,
would be to verify the accession, which was, in all respect, already absolute. As the
United Nation Commission reported: 'the basic feature of India's place in her disputation
that she is in Kashmir by right, and that Pakistan cannot seek to equal footing with India
in the dispute.'3 Pakistan was unlawfully in Kashmir and had no rights in the matter. The
Freedom forces should be disbanded and disarmed because they comprised the forces,
which were in uprising against the government of the state.
Educology 8
of Muslim and non-Muslim majority areas."8 following this, the Maharaja of Jodhpur
acquiesced into acceding to India.

In the three cases cited above we have seen that the rulers wished to go against the
principal of the Pakistan but were compelled to do otherwise as their action would
violate the principal on which the division of sub-continent was carried out. It is
pertinent to mention here that the Muslim League had desired to include the
whole of the predominantly Muslim provinces of Bengal and Punjab in Pakistan
but this was not accepted and they were divided on the basis of the Partition Principle.

In case of Kashmir Partition plan was totally over seen and 99.8% predominantly
Muslim State was forcefully acceded to India.

ILLEGAL OCCUPATION OF INDIA OVER GOA

In December 1961 India invaded Goa, a Portuguese island in the Indian Ocean.9 Many
observers have argued that the Indian invasion of Goa was a far more serious act of
aggression than anything of which Pakistan stood accused in the State of Jammu and
Kashmir. Both the British and the United States delegations raised the matter at the
Security Council of the United Nations. As the United States representative, Adlai
Stevenson, put it: " let us be perfectly clear what is at stake. It is the question of the use
of armed force by one state against another-an act clearly forbidden by the Charter of
the United Nations."

A Security Council Resolution Calling, among another things, for an immediate Indian
withdrawal from Goa, was approved by seven votes to four (including four of the
permanent members, The United States, Britain, France and China); but the
opposing vote of the Soviet Union served as a "veto" (the Soviet's 99 th in the
history of the Security Council),I°

ACCESSION OF JAMMU AND KASHMIR BY INDIA

As far as the State of Jammu Kashmir is concerned, at the time of the transfer of power,
Muslims constituted about 78% of the entire population and around 93% in the
Valley itself. Apart from the religious factor, multiple other factors linked the State
closely to West Pakistan." For example the only road and rail links with the outside
world lay through Pakistan via Rawalpindi and Sialkot respectively. Its postal and
telegraphic services passed through Pakistan. Again Pakistan was the main source
through which all essential items like petroleum, sugar, salts were imported and the
Jehlum Valley route which passed through Pakistan was the only avenue for the
export of fruits from Kashmir. The tourists which were the main source of income
for Kashmiris could only enter Kashmir via Rawalpindi. Similarly, the Jehlum river
was the principle means through which timber could be drifted down for export
purposes.
Educology 9

Historically speaking Kashmir had been ruled by the Muslims from 14th century onwards. The
Muslim rule continued till early 19th entry when in 1918 Ranjit Singh, the Sikh ruler of
Punjab, conquered it from Afghans. Similarly he acknowledge Gulab Singh, as Raja of Jammu.
Gulab Singh in turn expended his rule over the part of Kashmir except the Valley, which
he purchased from the British in 1846 for a sum of 7.5 million rupees. As an
acknowledgement of the British paramountcy, he also agreed to pay a nominal yearly tribute.

Kashmir was never integrated into the British Indian Empire and as mentioned earlier, she
was one of the nearly 560 Princely States which were to decide, whether to join India or
Pakistan till August 15, 1947. Before the Partition of the subcontinent, there was a lot of
activity which went on in India aimed at the eventual accession of Kashmir. Thus, in May
1947, President of the Indian Congress, Acharya Kirpalani went to Kashmir and tried to
persuade the Maharaja to join the Constituent Assembly of India but failed. Following his
footsteps, the Maharaja of Faridkot, Kapoorthala, Patiala and the rulers of the Punjab Hill
States who decided to accede to India, tried to convince the Maharaja of Kashmir to do the
same but without success. In June 1947 Lord Mountbatten also went Kashmir and apparently
advised the Maharaja to join, following ascertainment of the wishes of the people, either
the Dominions of India or Pakistan. He was followed by Gandhi, whose visit seemed to
have brought some success as the State Prime Minister Ram Chandra Kak who was in
favor of independent Kashmir was replaced by a Dogra Janak Singh, and soon after this
development the pro-Indian Muslin leader Shaikh Abdullah was released from prison.
Towards the middle of October, Prime Minister Janak Singh was replaced by the Indian
Congress nominee Mehr Chand Mahajan with the promise that the military aid could be
available to him at his discretion.

In the meantime, towards the end of July, the Maharaja ordered his Muslim subjects to
deposit all the anns that they possessed. Next he ordered the Muslim personal of his army to
be disarmed. In the latter half of August the blood-thirsty gangs belonging to Rashtriya Swayam
Sewak Sangh (RSS) and Sikhs began to pour into Jammu resulting in tension, particularly in
the area of Poonch. The purpose of all this on the part of Maharaja was to exterminate or force
the Muslim population of Kashmir to flee to Pakistan. He was inspired in this designs by
the ethnic-cleansing which had earlier taken place in East Punjab and the neighboring
states of Patiala, Kapoorthla and Faridkot whose Maharajas, as mentioned earlier, had also
visited the Maharaja of Kashmir.

The Maharaja attempt to disarm the Muslim population was resisted and a guerrilla
movement developed which drew its strength from the nearly 70,000 Poonchis who had
served in the British Indian Army during the Second World War. That is how the
Educology 10

"trouble" in Kashmir began as confined by the pro-Indian Shaikh Abdullah who made the
following statement in New Dehli on 21S` October 1947.

"The present troubles in Poonch, a territory of Kashmir was caused by unwise policy
adopted by the State. The people of Poonch had started a people's movement for the
redress of their grievances. It was not communal. Kashmir State sent its troops, and
there was panic in Poonch. But most of the adult population of Poonch were .... ex-
servicemen in the Indian army with close connections with the people of Jehlum and
Rawalpindi .... They evacuated their women and children, crossed the frontier, and
returned with arms supplied to them by willing people. The present positions was
that the Kashmir State forces were forced to withdraw in certain areas."12

The Muslim population of Jammu and Poonch had been ordered to leave their homes
but before it could be implemented, many people were cold-bloodedly massacred and
their villages were set on fire. Reporting one such incident. The Times of London
observed "....237,000 Muslims were systematically exterminated, unless they escaped
to Pakistan along the border, by the forces of Dogra State, headed by the Maharaja in
person."13 Commenting on the fate of the Muslim population of Jammu, Ian Stephens,
former editor of the prestigious newspaper the statesman and the ex-fellow of
Kings College, Cambridge stated, "...these, half a million or so, had almost totally
disintegrated in the autumn of 1947. About 200,000 simply vanished, being
presumably butchered or killed by epidemics and exposure while seeking to get away:
the rest had fled into Pakistani Punjab.'4

The news of atrocities perpetrated by the forces of Maharaja and the bands of
marching gangs of Sikhs and Hindus who had infiltrated from adjoining parts of
India influenced the passions of the Muslims of Kashmir and Pakistan. The Kashmir
guerrillas responded by attacking the Maharaja's forces and on 21/22 October; the
Patina tribesmen from the tribal areas of Pakistan's North West Frontier Province,
fired by the sentiment of holy war, entered Kashmir to help their co-religionists in
trouble.

Commenting on the motives of the tribesmen to enter in Kashmir and to engage in

fighting against the Maharaja's forces, the special correspondent of the Daily
Telegraph of London on 12 January 1948 observed: "It was undoubtedly tells of
horrible cruelties against their co-religionist in Jammu, coupled with heartening news
of the insurrection, which first set them on their course of invasion."15 The advanced
party tribesmen seized the Srinagar powerhouse on 24 October. However, since their
main body had been slow to advance because they got involved in pillage, the
tribesmen failed to take the Capital and its airport.
Educology 11

On 24 October the Maharaja appealed to India for military help as the Capital Srinagar
was threatened. In response to this desperate appeal the Indian Government dispatched
V.P.Menon to study the situation on the spot and report back. According to Menon, both
the Prime Minister Mehr Chand Mahajan and the Maharaja were completely unnerved as
practically all state forces had been depleted because of large-scale desertions of Muslims
from the army and police. In the face of such a hopeless situation, on 25 October at
midnight the Maharaja along with his family and valuable possessions fled from Srinagar
towards Jammu. Once in Jammu, the maharaja on 26 October addressed a formal letterI6
to the Governor General of India Lord Mountbatton seeking military assistance which he
handed over to Menon along with a signed Instrument of Accession who then brought it
along with him to Delhi. The reference to the conditions under which the Maharaja was
compelled to seek accession is noteworthy: "With the conditions obtaining at the present
in my State and the great emergency of the situation has it exist I have no option but to
ask for help from the Indian Dominion."I7
On 27 October Lord Mountbatten wrote to the Maharaja in which he conveyed the
decision of the Indian Government to accept Kashmiri's accession. Mountbatten's reply
is equally worthy of note:
"In the special circumstances mentioned by your Highness, my Government has decided
to accept the accession of Kashmir State to the Dominion of India in Consistence 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, Its my Government's wish that, as soon as law and order has been
restored in Kashmir and her soil cleared of the invader, the question of the State's
accession should be settled by a reference to the people."I8

The same day (27 October) at 9 a.m. the Indian troops landed at the Srinagar airport.
Given the presence of the Indian troops in Kashmir, many Pakistani's and Poonchis
serving in the Pakistan army crossed the border to fight for the liberation of Captive
Kashmir. In a related development, on 24 October the Muslim Conference, which had on
19 July of that year passed a resolution in favor of Kashmir' accession of Pakistan,
established the Azad Kashmir Government in the liberated areas of Kashmir.
Subsequent to Mountbatten's letter cited above, the Governors- General of India and
Pakistan met in Lahore but the meeting was abortive on the issue of holding a plebiscite
in Kashmir. The main reason for this was Jinnah's objection to the presence of Indian
troops in Kashmir at the same time of Plebiscite which, in his view, was likely to
prejudice any chance of its impartial.

On 30 October the Indian Prime Minister, Pundit Nehru in a telegram addressed to

Pakistan's Prime Minister Liaquat Ali Khan, repeated the earlier promise to hold the
Educology 12

Plebiscite in Kashmir in these words: "Our assurance that we shall withdraw our troops
from Kashmir as soon as peace and order are restored and leave the decision about the
future of the State to the people of the State is not merely a pledge to your Government
but also to the people of Kashmir and to the world."19 On 2nd November 1947 Pundit
Nehru, in a radio broadcast, reiterated the plebiscite commitment, which he declared
would be "held under international auspices like the United Nations.""
LEGALITY OF INDIA'S VIEWPOINT
Now we examine the legality of accession of the State of Jammu and Kashmir by India.
According to the Partition Plan of subcontinent of 1947, Muslim majority areas had to
join Pakistan. The State of Jammu and Kashmir comprised 77 percent Muslims and it had
to join Pakistan automatically. Furthermore, the State of Jammu and Kashmir has
executed a standstill agreement with Pakistan on August 15, 1947 which debarred the
State from entering into any kind of negotiations or agreement with any other country.
Furthermore, Pakistan maintained that the Maharaja of Jammu and Kashmir had no
authority left to execute an instrument of accession on 26th October 1947 because the
people had successfully revolted, had overthrown his government and had compelled him
to flee from Srinagar and therefore, there was no basis what so ever for India's contention
that the accession was lawful and beyond question.

LEGALITY OF PAKISTAN'S VIEWPOINT

Now we have to analyze the legality of Pakistan's presence in Kashmir. Pakistani Pathan
tribesmen of North-West Frontier Province entered into Kashmir from Jehlum on the
night of 21/22 October 1947 without the permission of the Government of Jammu and
Kashmir. This infiltration was either a help for the Muslirns of Jammu and Kashmir or it
was at the invitation of internal elements in the political struggle then going on in the
state of Jammu and Kashmir, was not requested by the Governinent of Jammu and
Kashmir and therefore it was a step which should not be taken by the Pakistani
Government.

Pakistan was in standstill agreement with the Government of Jammu and Kashmir, which
debarred Pakistan to interfere in the internal matter of the state of Jammu and Kashmir.
So neither Pakistani tribesmen nor the regular army of Pakistan had any legal ground to
stay in the state of Jammu and Kashmir.

THE VIEW OF KASHMIRI PEOPLE

The view of the Kashmiri people is that a fair solution of the Jammu and Kashmir issue
must be found which is in keeping with the aspirations of the people of Jammu and
Kashmir. The land of Kashmir is the homeland of Kashmiri people and they are the real
inheritors of their homeland. They will fight to the last Kashmiri for their independence.
Educology 13

So for the perpetual and lasting peace, it is imminent that the people of Jammu and
Kashmir should be granted the right of self —determination.

CONCLUSION
In the three cases cited above we have seen that the rulers wished to go against the
principal of the Pakistan but were compelled to do otherwise as their action would
violate the principal on which the division of sub-continent was carried out. It is
pertinent to mention here that the Muslim League had desired to include the
whole of the predominantly Muslim provinces of Bengal and Punjab in Pakistan
but this was not accepted and they were divided on the basis of the Partition Principle.

In case of Kashmir Partition plan was totally over seen and 99.8% predominantly
Muslim State was forcefully acceded to India.

Kashmiri people are the real sufferers of Kashmir Dispute and therefore they should be
recognized as a party to the dispute. Therefore it is the need of the hour that a fair
solution of Jammu and Kashmir issue must be found by keeping in view the
aspirations of the people of Jammu and Kashmir. The land of Kashmir is the homeland
of Kashmiri people and they are the real inheritors of their homeland. They will
fight to the last Kashmiri for their independence. So for the perpetual and lasting
peace, it is imminent that the people of Jammu and Kashmir should be granted the
right of self-determination.
REFRENCES

1. Resolution adopted by the UNCIP, 5 January 1949 (S/1196,para. 51), Hasan (ed.),
Supra note 4. pp. 212-14.
2. Letter of the Representative of India addressed to the President of Security Council. 1"
January 1948 (S/628), ibid., p.75.
3. S.M. Burke, Pakistan Foreign Policy: An Historical Analysis (London: Oxford University
Press. 1973). P.16.
4. See K. Sarwar Hasan, Pakistan and the United Nations (New York: Manhattan Publishing
Co., 1960). P.80.
5. For Goa see: R. P. Rao, "Portuguese Rule in Goa 1519-1961," New York 1963.
6. See telegrams of the Governor-General of India addressed to the Governor-General of
Pakistan. 22 Septeniber 1947. K. Sarwar Hassan (ed.). Documents on the Foreign
Relations of Pakistan: The Kashmir Question (Karachi: Institute of International Affairs,
1966), p.17.
7. V.P.Menon. The Story of the Integration of the Indian States(New Delhi: Orient
Languages. 1961). P.125.
8. Ibid., p. 306.
9. Ibid., p. 316.
Educology 14
10. Ibid., pp. 112-113, 117.
11. Shaikh Abdullah. "Kashmir, India and Pakistan", Foreign Affairs (April 1965), p.528.

12. Cited by Sir Zafarullah Khan in the Security Council debate on Kashmir. See
S.C.O.R., 3"I year, 228th meeting, 16 January 1948, p.68.
13. Hasan. Supra note 3.p.98.
14. Ian Stephan, Horned Moon (London: Chtto and Windus, 1953), p.138.
15. Hasan. Supra note 3.p.98.
16. See Menon, supra note 5, p.380.
17. Letter of Maharaja Hari Singh of Jammu and Kashmir addressed to The
Governor-General of India, 26 October 1947, Hasan (ed.). Supra note 4. Pp. 55-
57.
18. Letter of the Governor- General of India addressed to the Maharaja of Jammu
and Kashmir, 27 October 1947, bid, pp.57-58.
19. Telegram of the Prime Minister of India addressed to The Prime Minister of
Pakistan, 31 October 1947, ibid., p.71.

20. Broadcast by the Prime Minister of India, Jawaharlal Nehru, 02, November 1947.
Ibid. ., p.75.