Prof. G.M.Athar
INTRODUCTION:-The Kashmir conflict is fundamentally a trilateral dispute over the territory of the former Dogra kingdom among the people of the princely state of Jammu and Kashmir, Government of Pakistan and the Government of India. The parties to the Kashmir conflict have taken maximalist political positions on the former Dogra kingdom without taking into account the political history and legal position of the Dogra kingdom following the lapse of British paramountcy in the Indian subcontinent on 15th August 1947.The present paper is an endeavour to highlight the political aspirations of the parties to the Kashmir conflict and the lack of any legality in their respective stands on the erstwhile Dogra kingdom. A brief account of these critical issues is given as under:
THE POLITICAL ASPIRATIONS OF KASHMIRI NATIONALISTS:- The political aspirations of the people of Jammu and Kashmir to establish an independent country are represented by Jammu and Kashmir Liberation (JKLF) established by Mohammad Amanullah Khan in Birmingham, United Kingdom in 1977. The organisation was originally called the Jammu and Kashmir National Liberation Front (JKNLF) established by Mohammad Maqbool Bhat and Mohammad Amanullah Khan at Muzaffarabad in1966. Mr Mohammad Amanullah Khan ran JKLF from Muzaffarabad in Azad Jammu and Kashmir after he was deported to Pakistan in1986 following the murder of Ravinder Matre, an Indian Assistant High Commissioner in London in1984. Mohammad Yasin Malik, Chairman of Jammu and Kashmir Liberation Front abandoned the path of violence in early1990s and established his separate Srinagar based Jammu and Kashmir Liberation Front in 1993. Although Mohammad Yasin Malik has been sentenced to life imprisonment by the Supreme Court of India, the popular aspirations for an independent country are quite widespread in the former Jammu and Kashmir State.
THE INDIAN POLITICAL ASPIRATIONS:- It was the Indian National Congress in general and Pandit Jawaharlal Nehru in particular who wanted Kashmir to accede to the Indian Union because he was himself of Kashmiri ethnic origin. Secondly, the accession of Muslim dominated Jammu and Kashmir State to India was an enough proof to disprove the two-nation theory of Mohammad Ali Jinnah. The Indian National Congress wanted to control a territory of 222,236 square kilometres of Jammu and Kashmir State, so it supported Sheikh Mohammad Abdullah in his struggle against Maharaja Hari Singh from 1938 to 1952 on the one hand and on the other hand engaged separately with the Dogra leadership of Jammu and Buddhist leadership of Ladakh from 1947onwards.
THE PAKISTANI POLITICAL ASPIRATIONS:- The Indian Muslim League led by Mohammad Ali Jinnah had supported the All Jammu and Kashmir Muslim Conference led by Choudhary Ghulam Abbas with the objective of garnering the people’s solidarity with Indian Muslim League in its demand for an independent country for the Muslim dominated areas of Indian subcontinent including the former Dogra kingdom. In May 1944 Mohammad Ali Jinnah visited Kashmir to appeal the Kashmiri Muslims to support All Jammu and Kashmir Muslim Conference in the name of one Allah, on Muhammad and one Quran, so therefore, one political goal of an independent country to be called Pakistan. After the establishment of an independent Pakistan and the failure of Jinnah to convince Hari Singh to have accession of the Muslim dominated Jammu and Kashmir State with Pakistan, the Pakistani leadership wanted to take control of the Muslim dominated Azad Kashmir, Kashmir and Gilgit-Baltistan by force to increase the territorial size of Pakistan.
Thus it can be concluded that the Kashmiri nationalists, the Indian leadership and the Pakistani leadership wanted to control the 222,336 square kilometres of Jammu and Kashmir State inhabited by a population of 4 million people as per the 1941population census. However, during the post-partition era there was a clash of interests among the political leaders within Jammu and Kashmir State. Hari Singh and his Prime Minister Pandit Ramchand Kak wanted to continue the autocratic regime within the Dogra kingdom. Sheikh Mohammad Abdullah wanted to overthrow the Dogra autocracy with the help of Indian National Congress. Choudhary Ghulam Abbas and Mirwaiz Mohammad Yusuf Shah wanted to assume political power with the support of Pakistan Muslim League.The disunity among the political leaders of Jammu and Kashmir finally led to the partition of former Dogra kingdom along the Ceasefire Line recognised by India and Pakistan under the Karachi Agreement signed by the two countries in presence of the representatives of the United Nations on 28th April 1949.
HARI SINGH HAD NO LEGAL AUTHORITY TO SIGN THE INSTRUMENT OF ACCESSION:- The maximalist political aspirations of the Kashmiri nationalists, Indian leadership and Pakistani leadership do not have any legal sanctity because the Treaty of Lahore by which Gulab Singh was recognised by the Lahore Darbar as the Maharaja of Jammu Kingdom on 9th March 1846 and the Treaty of Amritsar between Maharaja Gulab Singh and the British East India Company by which the Kashmir Province became a part of the Jammu Kingdom on 16th March 1846 expired with the lapse of British paramountcy in the Indian subcontinent on 15th August1947. Additionally, Hari Singh left Kashmir along with his family members and movable property at midnight falling between 24th and 25th October 1947, therefore he was not even de facto ruler of Kashmir Province on 27th October 1947, so his Instrument of Accession with Indian Union of Jammu and Kashmir State in general and the Kashmir Province in particular is not a legally valid document.
THE RULER OF JAMMU AND KASHMIR DID NOT ACCEDE TO PAKISTAN TILL 14TH AUGUST 1947:- Similarly, the Muslim dominated Jammu and Kashmir State would have become a province of Pakistan, had Maharaja Hari Singh signed the Instrument of Accession of his kingdom with Pakistan prior to 15th August 1947 when he had the legal authority to do so. His Standstill Agreement sent to Pakistan by a telegram on 12th August 1947 was violated by Pakistan by sponsoring the tribal raid in Kashmir Province on 20th October 1947. Similarly, the United Nations Security Council Resolutions on Jammu and Kashmir State mandated Pakistan to withdraw first its troops from the territory of the former Dogra kingdom to hold a plebiscite in the state to determine whether the people want to stay with India or join Pakistan, but the Islamabad failed to fulfill its obligations in this regard.
THE KASHMIR PROVINCE IS NOT A PART OF JAMMU KINGDOM:-The Jammu and Kashmir Liberation Front and other political parties of former Jammu and Kashmir State demanding the status of an independent country for the former Dogra kingdom, ignore the fact that the Treaty of Amritsar has expired on 15th August 1947, and there is no more any legal entity to be called the Jammu and Kashmir State.These are separate geographical territories of Jammu Dogra Mainland, Pahari Mainland, Kashmiri Mainland, Balti-Mainland, Shina Mainland and Ladakhi Mainland from 15th August 1947 onwards. So the establishment of an independent country spread over the territory of the former Dogra kingdom needs the approval of the people of these regions rather than considering the former Dogra kingdom as one legally valid political entity on the basis of the Treaty of Amritsar between Maharaja Gulab Singh and the British East India Company on 16th March 1846.
The author can be reached at ghathar@yahoo.co.in
Views expressed are author’s own
