From: jmukherj@athena.mit.edu (Jaideep Mukherjee)
Newsgroups: soc.culture.indian,soc.culture.pakistan
Subject: Re: Kashmir:some questions?
Date: 13 Apr 92 18:42:03 GMT
Article-I.D.: athena.1992Apr13.184203.26372
Organization: Massachusetts Institute of Technology

In article <kuj8evINNdfq@roundup.crhc.uiuc.edu>
sunder@altair.crhc.uiuc.edu (Srinivas Sunder) writes:

>Maybe someone mentioned it and I didn't catch it; could someone
>who has access to the data clarify if there is a clause in the
>Act of Accession (of Kashmir to India) that requires a plebiscite
>to be held to ratify the accession? I am pursuing this line only
>to see lf there is a Constitutional basis for a plebiscite, as
>opposed (or separated, if not opposed) to a moral basis.
>
>-srinivas


  There is nothing in the Instrument of Accession signed by Hari
Singh that refers to the necessity of validating it by the exercise of 
the will of the people. However, one of the two documents signed 
by Mountbatten, when he accepted the accession, did contain the
following lines:
 
  ".... 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 accession should be settled by a 
reference to the people".

  This was in a personal letter to Hari Singh on 27th Oct., 1947.
Surprisingly in the formal acceptance of the accession on the same
day, there is no mention of this. The principle of self-determination
was also referred to by Nehru in a broadcast on 2nd Nov., 1947. I
quote the relevant portion below:

 "We have decided that the fate of Kashmir is ultimately to be
decided by the people. That pledge we have given, and the Maharaja
has supported it, not only to the people of Kashmir but to the
world. ... We are prepared when peace and law and order have been
established to have a referendum held under international auspices
like the UN".

 I think the Indian argument about these promises has been that
they are merely political in nature and do not have legal validity.
About the legality of the accession, there is also the issue of the
Standstill Agreement executed between the state of Jammu and Kashmir
and Pakistan. India never signed such an agreement. Had Pakistan
not used an economic blockade and if the tribal invasion had not taken
place, it is likely that this might have rendered the accession illegal.


 As I have mentioned before on this thread, it is India's own
action in Junagadh that weakens its claims to the legality of
the Kashmir accession. While this story may be well known to
many, I am presenting a brief summary here because it is relevant.

 The ruler of Junagadh, like his counterparts in Kashmir and
Hyderabad, had not decided to accede to either India or Pakistan
before 15th Aug., 1947. In communal terms the case of Junagadh
was the opposite of Kashmir's, i.e., it had an 86 per cent Hindu
majority and a Muslim ruler. After a brief period of indecision, the
ruler decided to accede to Pakistan in the middle of September. At this
point, the Indian government lodged a protest with Pakistan, warning
it that acceptance of the accession would constitute an "unfriendly
act". Soon after, it sent in the army and in its presence held a
plebiscite. Predictably the people voted for accession to India.
I think the official nos. show something like a 90 per cent majority.

Jaideep