Aman M Hingorani, a Supreme Court lawyer, has come up with a book on the Kashmir dispute. He completed LLM from the UK and picked up Kashmir as topic for doctoral thesis since every conceivable principle of law had been flouted there. There was no comprehensive legal analysis on India’s stand on Kashmir.
The book says that the British goaded undivided India to partition to retain spheres of influence in the sub-continent after independence and latched on to the Muslim League and Jinnah.
As per the Great Game between Britain and Russia the British wanted to halt Russian advance southwards to oil wells. Retaining a slice of the north-western part of India (NWFP) as a friendly State served their strategic, political and defence interests well.
NWFP being predominantly Muslim, the British handpicked Jinnah to champion the two nation theory to create Islamic Pakistan. The Indian leadership were outwitted to let the Congress-ruled NWFP go to Pakistan and a coup effected in strategically located Gilgit to hand it over to Pakistan after J&K had acceded to India.The British were ruthless in this dangerous game of religious frenzy viewing the dead as incidental damage. Mountbatten said ‘what is 200,000 (dead Indians) out of 400 million? That is one person in 2,000, isn’t it? It is a fractional percentage.’
Congress was out of depth to understand British designs as its naive leaders whom people trusted with statesmanship, acumen and far-sightedness were left blinking their eyes.The British headed both the Indian and Pakistani armies even after Partition as India remained a British dominion till 1950. Mountbatten as head of the Emergency Committee and the Defence Committee of the Indian Cabinet, formulated India’s entire Kashmir policy right up to 1948. India and Pakistan are creations of British statutes enacted to give effect to the political agreement crafted by the British and the Muslim League, and eventually accepted by the Congress, to partition the sub-continent. These British statutes, accepted by India and Pakistan, provided for partition of British provinces according to the two nation theory.
All the princely states were to regain full sovereignty with the ruler being only authority to offer accession regardless of the religious composition of the people of that state.
Pakistan correctly understood the legal position that as of August 15, 1947 princely states were sovereign in the full sense of the term.
As a sovereign state, J&K acceded to sovereign India in October 1947. Pakistan had no locus standii.
But Congress became defensive after the controversial accession of the princely states of Junagadh and Hyderabad, and formulated a policy to seek the wishes of the people for future accession.
This was contrary to the constitutional law (the British statutes– namely, the Indian Independence Act, 1947 and the modified Government of India Act, 1935) then in force and accepted by both India and Pakistan which clearly stipulated that only the ruler was competent to decide the accession of his princely state.
The Instrument of Accession by the princely states was unconditional and not subject to the wishes of the people.
Once the political decision between British, Muslim League and Congress had been crystallised into such law (statutes), Nehru as executive had no authority to change that. So his promise to seek people’s opinion was ultravires. Yet Nehru informed Liaquat Ali Khan and world leaders that the accession of J&K to India was subject to the reference of the people and reflected it in White Paper on J&K. New Delhi thus acted beyond its power promising self-determination and plebiscite in J&K. Mountbatten while signing the Instrument of Accession as the governor general of the Dominion of India made condition that Nehru must agree to hold a plebiscite in J&K.
He outwitted Nehru by persuading him to commit plebiscite before the UN Security Council thus deviously internationalising Kashmir problem. The Security Council called for a cease-fire, without requiring Pakistan to first vacate the occupied areas. The blunder allowed Pakistan to retain Azad Kashmir which the British precisely needed for the Great Game. Though under the British statutes the accession of J&K to India was unconditional, final and complete, the British put contrary arguments before the Security Council. While accepting India as a member State, UN had accepted its territorial integrity including the entire territory of J&K but Security Council unfortunately overlooked this important fact.
Furthermore, Kashmir has never been a part of Pakistan under its constitution. After lopsided Security Council ruling, India became defensive to just seek territorial status quo and convert the LoC into the international border. India gave up the territory of J&K occupied by Pakistan and China. The misconceived policy of status quo is also implicit in the Simla Agreement and the Lahore Declaration wherein India handed over further territory — Haji Pir won in the 1965 War, and territory won in Kargil conflict —to Pakistan.
In 1973, Supreme Court formulated the doctrine of basic structure of the Constitution to include unity of the country. Parliament no more has the power to tinker with the basic structure and cannot give away Indian territory. Accordingly India is entitled to the entire state of J&K and cannot legally part with its part. Congress and BJP blindly pursue traditional policy not bothering to apply mind to the legal position and we continue to part with territory, unfortunately. China is seeking legal documents for the Northern Areas from Pakistan to safeguard its economic investments in those areas. But Pakistan has no legal right to any part of J&K. Hingorani’s book talks of two steps to resolve the Kashmir issue.
As India created doubts about the unconditional nature of the accession of J&K to India, internationalised the Kashmir issue and conferred a disputed territory status on J&K, India needs to reaffirm its title deeds to assert clearly that the whole of J&K belongs to it.
International Court of Justice being binding on both India and Pakistan and also to all other members of the UN, could be the right forum. Once the court gives a verdict in India’s favour, Pakistan and China can be asked to vacate the territory of J&K under their occupation. No nation can brand the conflict as freedom struggle. The correct legal position could help alter the current political discourse and swing political opinion in our favor. Otherwise India falls back on existing stand of status quo and loses nothing.
The second step: India must reclaim moral authority in J&K, undo past mistakes on Article 370, roll back the AFSPA and essay new methods for conflict resolution to win over the hearts of the people. Nehru’s statement that the Kashmiris had the right to self-determination spawned terrorist movements in the guise of a freedom struggle. The Kashmiris feel backstabbed; Pakistan believes Kashmir is theirs while pseudo seculars concede that India is an occupying army. Subjecting Kashmir issue to a legal analysis and depoliticising it will change the current political discourse, both nationally and internationally.