It appears that by 1964, New Delhi had become wiser. Though it had still not occurred to New Delhi that it lacked the power to introduce the “wishes of the people” as the deciding factor for the question of accession of a princely state, it did realize that there was no provision in the British statutes for consulting the people of the acceding state or requiring that the accession be ratified by ascertaining the wishes of the people of that state. MC Chagla (India) declared before the UNSC on 5 February 1964 that:
It was also provided that it was open to every princely State to accede to either India or Pakistan. The law did not provide that the Instrument of Accession could be conditional. Once the accession was accepted either by the Governor-General of India or of Pakistan, the particular princely State became an integral part of one or more of the two Dominions. It is significant to note that there was no provision for consulting the people of the princely State concerned. Nor was there any provision that accession had to be ratified by ascertaining the wishes of the people of the acceding State…
It has also to be remembered that the partition of India was confined to British India and that in drawing the lines of the frontier, questions of Muslim majority provinces were taken into consideration only with regard to British India.
There was no question whatsoever with regard to the religious complexion of the population of the princely States. The question whether one princely State should accede to India or Pakistan was left to the determination of the Ruler of the State…. The British Government had made it quite clear that the partition was only of British India and that this principle (of the two-nation theory) did not apply to those States, such as Kashmir and several hundred others, which were ruled by Indian princes….
It was entirely for the Ruler of Jammu and Kashmir to decide taking all factors into consideration…. The question of religion did not come into play at all.
Therefore, there is no substance in the suggestion that the accession of Jammu and Kashmir was not complete and absolute because the people of that State had not been consulted nor been given the opportunity to express their choice….
Jammu and Kashmir became an integral part of India when the Instrument of Accession was signed and accepted, and from that date, till today it continues to occupy the same position vis-a-vis the Indian Union, and no further question can possibly arise of annexing Kashmir or further integrating it into the Indian Union. You cannot make more complete what is already complete….
Similarly, while it had still not struck New Delhi that the UN resolutions on holding a plebiscite in J&K were beyond the competence of India, Pakistan and indeed, the UN itself, New Delhi did reiterate its repudiation of the “conditional”, “contingent” and “obsolete” UN Resolutions. MC Chagla (India) pointed out that:
The two resolutions of the Security Council dealing with the plebiscite were conditional and contingent on Pakistan vacating its aggression, and that condition has not been complied with. It is really more than a condition. It was the basis on which these two resolutions were founded, and the condition not having been complied with and the basis having disappeared, these resolutions are no longer binding on us. In any case, by the passage of time and various factors intervening … they have become obsolete…. I wish to make it clear on behalf of my Government that under no circumstances can we agree to the holding of a plebiscite in Kashmir….
Pakistan mockingly contrasted each declaration made by New Delhi at the time with the earlier contrary stand taken in its own White Paper as also before the international community and the UNSC. Pakistan happily drew parallels with the cases of Hyderabad and Junagadh to highlight New Delhi’s own policy of making the wishes of the people a relevant factor to settle the accession of a princely state. Pakistan’s reasoning was impeccable, but for the crucial fact that New Delhi was not legally competent to add to the Instrument of Accession executed under the British statutes a requirement that the people of a princely state would settle the question of its accession.
New Delhi’s policy of requiring a reference to the people to settle the question of accession of a princely state, be it J&K, Hyderabad or Junagadh, was itself ultra vires the British statutes – statutes that bound both India and Pakistan and, for that matter, the UK. As stated earlier, there has been no doubt about the legitimacy of India and Pakistan as sovereign countries created by the British statutes. Since the law that created Pakistan itself made J&K a part of India, the legally misconceived policy of New Delhi would not come to Pakistan’s rescue.
Pakistan’s response raises a further question: were the ICJ to examine the Kashmir issue, could Pakistan seek to reopen the accession of the princely states of Hyderabad and Junagadh to India? If one was to locate the answer in law, without getting into the broader consideration of what would be the equitable thing to do, the answer would be no. The sovereign ruler of Hyderabad acceded to India, while the plebiscite in Junagadh was at the instance of its sovereign ruler – the legitimate authority under the British statutes.
Moreover, while Hyderabad and Junagadh were legally sovereign states on the lapse of the British paramountcy in 1947, they lost their identity as such upon their merger with the Indian Union and the proclamation that the Constitution of India would be their constitution. Thus, there is no princely state of Hyderabad or of Junagadh in existence today. The territories that comprised those states have also not maintained their distinctiveness. As regards J&K, it has been noted earlier that the sovereign ruler of J&K did not propose a plebiscite to decide the future of J&K nor did he execute any supplementary instrument or instrument of merger at any point.
New Delhi could, nonetheless, use Pakistan’s stand on Hyderabad and Junagadh to substantiate the proposition that upon the lapse of the British paramountcy, J&K became fully sovereign. New Delhi could rely heavily on Pakistan’s admissions; for instance, its assertion in the Hyderabad Question that “the result of the Indian Independence Act was that the States were independent” and “could thereafter choose to accede to one or the other of the two Dominions, or they could remain independent”.
This declaration by Pakistan will itself suffice to confirm that the accession by the sovereign ruler of J&K was legal, final and irrevocable, being an Act of State; that Pakistan had no locus standi to challenge the accession; that the “wishes of the people” were irrelevant for the question of accession; that Pakistan had the knowledge that the representatives of the dominion of India had exceeded their powers under the British statutes, as well as the Instrument of Accession executed under the said statutes, by wishing or pledging to hold a plebiscite in J&K to settle the question of accession, and that the very presence of Pakistan and China in the territory of J&K constituted aggression.
It may be pointed out here that the question of a reference to the ICJ for an advisory opinion had been suggested by the Swedish government in 1957 on “certain legal aspects”, which were contained in two questions formulated by the Swedish government. The UNSC, however, was in no mood to involve the ICJ at all in the Kashmir issue. As Colombia pointed out, “the position of the United Nations was quite different”; that “[w]hat we advocated” was that “we are going to forget about, to waive, this inquiry into the law” and proceed on the footing that “Mr Nehru has volunteered the statement that, whether or not Kashmir belongs to India, if the result of the plebiscite is not favourable to India it would cede Kashmir”. Colombia emphasised that “[w]hat we wanted to say is that Kashmir’s accession to, or incorporation in, India does not concern us” and nor does it “change the position of the Council”.
Pakistan’s response to the suggested reference to the ICJ was understandable since the last thing it wanted was legal scrutiny of its claim to J&K. Firoz Khan Noon (Pakistan) stated that “[i]n our view, the issues involved in the Kashmir dispute are of a political, rather than a juridical, nature” and that “[a]ny reference to the International Court of Justice will merely delay the settlement of a longstanding dispute and such delay, I beg to submit, might endanger peace”.
New Delhi’s reaction was, to say the least, evasive and calculated to have the suggestion of a reference to the ICJ dismissed. Cryptically declaring that the Government of India did not reject these ideas “because if we did we should be doing wrong”, New Delhi now took refuge behind the ruler’s sovereignty in J&K to plead its “difficult position”. Krishna Menon stated that “[t]here are the parties to the accession, the Head of the State of Jammu and Kashmir and the Head of the then State of India, in 1947, the Governor General” and that the “ruler, not us, may vary the terms of the accession”.
Interestingly, New Delhi declared that “this question of referring the legality of the accession to the International Court would only arise, if we were prepared to have this matter referred, in the case of 560 states” and “if the Pakistan Government were willing to subscribe to it and have it applied to those States that have acceded to Pakistan”. New Delhi also sought to make out a case that such legal reference on the validity of the accession was unnecessary as, in its view, the UNSC had already pronounced itself on the ‘question of sovereignty’ of India over J&K and that such question was “out of the debate”. Unfortunately, only New Delhi seemed to be of that view, with the rest of the world, as discussed earlier, opining that the future of J&K was yet to be decided.
Simply put, New Delhi was not inclined to refer the questions formulated by the Swedish government to the ICJ. Perhaps it is fortunate that New Delhi took such a view, as the questions as formulated were not directed at the crux of the matter, namely, the power of New Delhi to offer and accept that the question of the accession of J&K be settled by a plebiscite or a reference to the people. Rather, the questions then formulated were aimed at inviting a finding in respect of the assumption of an “international obligation” by India to hold a plebiscite.
Pakistan had sought to emphasise that the Kashmir problem was more “political” than “juridical” in nature. Could Pakistan now plead that the Kashmir problem is not amenable to a legal resolution on the pretext that it is a political issue?
Excerpted with permission from Unravelling the Kashmir Knot, Aman Hingorani, Pan Macmillan India.
