Indian Defence Review

The two-nation theory has mired Indo-Pak relationship into an intractable problem in Kashmir. More than a half-century has gone by after independence and four wars fought during this period but no real progress has taken place towards a solution.

The Pakistani case is that the alphabet K in the original concept of Pakistan, to be created on the basis of two-nation theory, had stood for Kashmir and, therefore, it must get included in the territory of Pakistan. However the British Government, at the time of division of India, had not made the principle of two-nation theory applicable to the princely states.

With the lapse of the British paramountcy, the choice before the rulers of these states was to accede either to India or to Pakistan, depending upon geographical compulsions and requirement of the welfare of the subjects of these states. The states did not have the option of automatic recognition as independent under international law if the instrument of accession was not signed. The instrument of accession signed by the ruler was the legal cover for the transfer of the sovereignty over the state to India or Pakistan, as the case might be.

 Since accession came under abnormal circumstances, India on its own offered to settle the question of confirming accession by a reference to the people, after Kashmir had been cleared of the raiders.

The Maharaja of J&K signed a standstill agreement with Pakistan on August 15, 1947 to preserve the status quo as it existed till then, pending other arrangements to be finalised. The Maharaja proposed a similar relationship with India but India wanted time to think it over. Pakistan, meanwhile, had other plans. Its leadership was aware that the doctrine of two nations had few followers among the Muslims of J&K state and, therefore, the fact of Kashmir being a Muslim majority area was not compelling enough for the Maharaja to decide in favour of accession to Pakistan. The standstill agreement notwithstanding, in the mode of raiders from across the Khyber Pass in the earlier centuries, Pakistan incited tribals from its Western regions to infiltrate into the state and capture it by force for Pakistan.

By October 20, 1947 two thousand tribals had entered Muzaffarabad and by October 27, they were in Baramulla. The tribal incursion had already made the Maharaja approach India with an offer of accession so that military support could be made available to the state to fight the infiltrants. The Instrument of Accession was accepted on October 27, 1947. Since accession came under abnormal circumstances, India on its own offered to settle the question of confirming accession by a reference to the people, after Kashmir had been cleared of the raiders. It is to be noted that this offer was not a legal requirement of accession, which had acquired independent legal validity once the Instrument of Accession, was accepted by India. With accession the J&K state became an integral inviolable part of India.

The Indian military was now sent to J&K to drive out the raiders. Some Pakistani soldiers, on leave, were already in the state fighting along with the raiders but in April 1948, the Pakistan Government decided formally to introduce their troops into Kashmir, to take on the Indian troops which had been making headway. Senior Pakistan military officials later claimed that the Pakistan troops fought with great tenacity since they believed that the two-nation theory had given them a right- to Kashmir.1

Approach to Security Council

Direct appeals from India to Pakistan to stop the infiltration of the tribesmen and Pakistani nationals into the state and settle bilaterally all questions relating to Kashmir having failed, India approached the Security Council on January 1, 1948 “to call upon Pakistan to put an end immediately to the giving of such assistance (to the invaders to cross into India), which is an act of aggression against India”. Pakistan denied giving assistance and claimed that it was discouraging “the tribal movement by all means short of war”.

…neither the Security Council nor the UNCIP took any steps to have the legality of Kashmirs accession to India examined through the International Court of Justice.

In its counter complaint, Pakistan tried to widen the issue, to include all the problems between the two countries, charging India of reservations on partition, genocide and fraudulently bringing about Kashmir’s accession to itself. The Security Council established the UN Commission for India and Pakistan (UNCIP) on January 20, 1948 to look into the facts. A commitment was forthcoming from both sides for a plebiscite in Kashmir.

However, neither the Security Council nor the UNCIP took any steps to have the legality of Kashmir’s accession to India examined through the International Court of Justice. This failure had the effect of unfairly discounting India’s legal claims on Kashmir and of giving Pakistan an uncalled for equality of status in the dispute.

It was in the highest traditions of democracy and fair play that India had made the reference to the Security Council over Kashmir. Once the Instrument of Accession was signed, India acquired sovereignty over the state and could have pursued the military option of driving out the invaders. While accepting the accession, the offer to ascertain the will of the people was made suo moto. India’s Prime Minister, Jawaharlal Nehru had been an idealist who placed too much faith in the Western powers taking an objective view in the Security Council. Nehru at that time had little experience in real politik and could not anticipate that the real issue of Pakistan aggression would never be judged in the Security Council.

Unrevealed Strategic Aims

Evidence is now forthcoming suggesting that after the Quit India movement of 1942, the British elements both in London and New Delhi of the Churchillian school had felt concerned over how a revived effort by the Soviet Union to expand southwards in the post World War II period should be countered since the British would eventually be leaving the subcontinent. They did not think that an India ruled by people of the Congress ideology would protect Western strategic interests in the area. The Muslim League had been supportive of the British during this period and was, therefore, considered reliable for safeguarding these interests even after the departure of the British.

Pakistan’s strategy in the UN remained throughout to claim a locus in the administration of the state and to stall demands for the withdrawal of infiltrating tribesmen and Pakistan nationals from it.

A new state of Pakistan in the North Western part of British India was considered an ideal buffer. The British, therefore, egged on Jinnah to insist on a Pakistan. Jinnah is quoted as having said that he was offered Pakistan on a platter in 1945.2 This vision of a would-be strategic ally, after Pakistan was created, perhaps explains why the Security Council, under the influence of Western powers, was reluctant to come down hard on Pakistan. Eventually, as subsequent events proved, the Western powers did succeed in roping in the countries of the region through the Baghdad Pact and CENTO to create a strong bulwark to contain the USSR.

Pakistani Aggression Underplayed

Aware of this sympathy, Pakistan’s strategy in the UN remained throughout to claim a locus in the administration of the state and to stall demands for the withdrawal of infiltrating tribesmen and Pakistan nationals from it. The first major Security Council resolution on the subject was of April 21, 1948, which directly asked Pakistan to arrange withdrawal of tribesmen and Pakistani nationals, after which the bulk of Indian troops was also to be withdrawn. The resolution asked the state government to invite major political groups to participate at the ministerial levels while plebiscite was being prepared.

Pakistan conveyed their non-acceptance of the resolution and proposed amendments for stationing of Pakistani troops in all Muslim majority areas of the state and participation of the Azad Kashmir Government, Muslim Conference and National Conference in equal numbers in the interim government. India found the suggestion for participation by all groups in the government of the state to be incompatible with her sovereignty over the state. This suggestion also amounted to recognising the authority of those who were administering the seized parts of the state. India, therefore, rejected the resolution, relationships.

When the UNCIP visited Pakistan in July 1948 for the first time, the Pakistan Government informed them about the entry of Pakistani troops into the state in May in “self defence”; This admission of what constituted formal aggression under international law was not immediately reported to the Security Councilor India by the UNCIP even though it amounted to fool-proof confirmatory evidence of India’s original complaint of Pakistani aggression. Such partiality for Pakistan became the hallmark of the Western attitudes throughout the course of Security Council debates on Kashmir and ultimately convinced India that it was futile to expect idealism to be the currency of international

The local authorities in POK were allowed to administer areas under their occupation and to retain their forces but their quantum and nature were not mentioned. Withdrawal of troops was to precede steps for holding the plebiscite.

Already Prime Minister Nehru’s mind was thinking of a more practical way of dealing with the problem. In one of the meetings with UNCIP in India Nehru indicated that a division of the state between India and Pakistan could be considered for resolving the problem. Sheikh Abdullah had also come round to a similar view. He did not think independence was a real option for J&K state and felt holding a plebiscite would prove too difficult. He, therefore, favoured partition with the Valley and Jammu going to India.3 UNCIP did not project this option due to Pakistan’s total disagreement.

UN Recipe for Kashmir

The two most important Security Council resolutions concerning India’s complaint were of August 13, 1948 and January 5, 1949. The first called for a truce, asked for withdrawal of Pakistani troops from the state since it constituted a material change in the situation from what was originally represented by Pakistan in the Security Council, and stipulated a plebiscite for determining the future of Kashmir. India was to withdraw a bulk of her troops after UNCIP had notified her of vacation of the state by Pakistani forces and tribesmen.

The local authorities in POK were allowed to administer areas under their occupation and to retain their forces but their quantum and nature were not mentioned. Withdrawal of troops was to precede steps for holding the plebiscite. The second resolution established a ceasefire from January 1, 1949. The UNCIP also accepted Indian conditions that the state would retain sovereignty over territories evacuated by Pakistan, no recognition would be extended to ‘Azad Kashmir Government’ and Pakistan would not be involved in the holding of plebiscite.

The Pakistani desire to accept a ceasefire now appeared to have been guided by an assessment that the Indian military had been able to establish a dominating position for themselves.

India also suggested that methods other than plebiscite could also be considered for ascertaining the wishes of the Kashmiris. It was also agreed that residual Indian and J&K State Forces would take care of the security requirements of the state. The Pakistani desire to accept a ceasefire now appeared to have been guided by an assessment that the Indian military had been able to establish a dominating position for themselves.

An agreement over the ceasefire line was arrived at a meeting in July 1949 at Karachi. Thereafter, the problems of disposing of the Azad Kashmir forces, numbering 50,000 quantifying the bulk of Indian troops to be withdrawn and administration of Northern Areas proved insoluble due to insistence by Pakistan on equality with India following the ceasefire and on simultaneous reduction of forces on the two sides.

Both Pakistani demands militated against India’s sovereignty over the state and the artificial dispute so created by Pakistan had the effect of postponing plebiscite which was what Pakistan apparently wanted since it was quite fearful at this stage that the Kashmiris would opt for India in a referendum.For India, holding of a plebiscite under normalised circumstance would have posed no problem but Pakistan’s objective was to seek it under abnormal circumstances. Thus, the two resolutions, even though accepted by the two parties, could not be implemented except for the truce. The stalemate created by Pakistan by not withdrawing its troops continues till today